Ford v. Howard

300 S.W.3d 505, 2009 Ark. App. 196, 2009 Ark. App. LEXIS 228
CourtCourt of Appeals of Arkansas
DecidedMarch 18, 2009
DocketCA 08-451
StatusPublished
Cited by2 cases

This text of 300 S.W.3d 505 (Ford v. Howard) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ford v. Howard, 300 S.W.3d 505, 2009 Ark. App. 196, 2009 Ark. App. LEXIS 228 (Ark. Ct. App. 2009).

Opinions

M. MICHAEL KINARD, Judge.

| Appellant, Pearlene Ford, as Trustee of the Pearlene Ford Trust, appeals from the trial court’s denial of her motion for directed verdict in a jury trial. Appellant and appellee are mother and son. In 1985, appellant, who is the record owner of the property in question, allowed appellee to move onto the property. Appellee was experiencing financial difficulties at the time he moved onto the property. After moving onto the property, appellee made a number of improvements to a residence on the property, including redoing the electrical and plumbing systems in the home, putting in a new central heat and air unit, putting in a new septic system, and putting a new roof onto the residence. Appellee has paid all due property taxes, insurance, and utilities since moving onto the property-

In 1986, appellee began a car lot business on the property, with the business office |2located in the residence. Prior to starting the business, appellee arranged to have the property re-zoned from agricultural to commercial. The car lot business has been in continuous operation on the property since its inception. Appellee testified at trial that, in order to set up the business, he renovated an existing chicken house on the property. Also in 1986, ap-pellee arranged to have an existing vineyard removed from the property.

In 1988, appellee pastured cattle on the property. Appellee allowed his daughter to place a trailer on the property in 1991. At various times, appellee would allow other people to live on the property. The evidence produced at trial showed that appellant was aware of appellee’s activities on the property, and that appellee never denied appellant access to the property.

In 1996, as part of the property settlement agreement pursuant to his divorce, appellee stated that he had no interest in real property of any kind. On January 11, 2005, appellant established a revocable trust and deeded the property from herself as an individual to herself as trustee of the revocable trust. Appellee was aware of appellant’s deeding of the property and made no attempt to stop appellant from deeding the property.

In June 2006, appellant filed a complaint in unlawful detainer, seeking to remove a tenant, Gary Rhodes, who had obtained appellee’s permission to reside on the property after appellee moved off of the property in December 2005. Appellee filed a motion to intervene in the unlawful detainer action, claiming that he was the owner of the property through adverse possession against appellant. Appellee later amended his motion to include a claim lsof promissory estoppel against appellant. Appellee’s motion to intervene was granted. Prior to trial, Rhodes was dismissed as a party to the action. The matter was tried before a jury. During the trial, appellant moved for directed verdict on ap-pellee’s claims of adverse possession and promissory estoppel. The trial court granted appellant’s motion for directed verdict as to the promissory estoppel claim, but denied appellant’s motion with respect to the claim of adverse possession. The jury found in favor of appellee via a general verdict. This appeal followed.

Our standard of review regarding a denial of a motion for a directed verdict in a case that is submitted to a jury is whether the jury’s verdict is supported by substantial evidence. Crawford Co. v. Jones, 365 Ark. 585, 589, 232 S.W.3d 433, 437 (2006). Substantial evidence is evidence that is sufficient to compel a conclusion one way or another and goes beyond suspicion and conjecture. Id.

At trial, appellant moved for directed verdict on the grounds that appellee failed to prove all of the elements necessary for adverse possession.1 In order to prove ownership of land by adverse possession, the party claiming possession must show continuous possession of the property for seven years. Robertson v. Lees, 87 Ark.App. 172, 183, 189 S.W.3d 463, 471 (2004). In addition, that possession must be actual, open, notorious, continuous, |4hostile, exclusive, and accompanied by an intent to hold against the true owner.2 Id. Also, because the use of land by family members is presumed to be permissive, stronger evidence of adverse possession is required in cases involving family. Id. at 184, 189 S.W.3d at 471. If the original use and possession of the land is permissive, it cannot become adverse until notice of the hostility of the possessor’s holding has been brought home to the owner by actual notice or by a holding so open and notorious as to raise a presumption of notice equivalent to actual notice; the evidence of adverse holding when the original entry is by permission must be very clear. Rickett v. O’Dell, 86 Ark.App. 86, 91, 160 S.W.3d 717, 720 (2004).

In this case, it is not disputed that appellee has been in continuous, actual, and open possession of the land since 1985, which is well in excess of the seven years required for adverse possession. Appellant argued in her motion for directed verdict, and argues again on appeal, that appellee’s claim to the property must fail because he has failed to demonstrate that his possession was adverse to the interests of appellant. Appellee argues, in turn, that he produced substantial evidence at trial that his possession of the property was adverse to the interests of appellant.

Our supreme court has previously provided guidance as to what actions by a party claiming possession will be sufficient to provide notice of hostile intent in cases involving |sfamily members. In McGuire v. Wallis, 231 Ark. 506, 330 S.W.2d 714 (1960), the court considered whether one of the parties could have successfully asserted a claim of adverse possession against his siblings. The court held, in an opinion authored by the venerable Justice George Rose Smith, that McGuire could not show adverse possession, and stated that it was not persuaded that his activities on the property, which included putting two barns on the property, drilling a well on the property, and putting in a stock pond on the property would satisfy his burden to show possession hostile to his siblings. 231 Ark. at 509, 330 S.W.2d at 717.

Although appellee relies upon his various activities on the property to support his claim of ownership through adverse possession, his original use of the land was permissive. In order for appellee to be the owner of the property by adverse possession, that use must ripen from permissive to adverse and, as noted above, the evidence of adverse possession must be stronger in cases involving family than is necessary in cases in which the parties are unrelated. Therefore, the question before us becomes whether appellee produced substantial evidence of actions by him on the land occurring at least seven years prior to appellant’s unlawful detainer action that would give rise to a presumption of notice by appellant of his adverse possession of the property. We hold that he has not.

Appellee argues that his improvements to the home demonstrate his hostile intent. However, such improvements were not inconsistent with a use that appellant might reasonably have made of the property herself.

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Related

Emerson v. Linkinogger
382 S.W.3d 806 (Court of Appeals of Arkansas, 2011)
Ford v. Howard
300 S.W.3d 505 (Court of Appeals of Arkansas, 2009)

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Bluebook (online)
300 S.W.3d 505, 2009 Ark. App. 196, 2009 Ark. App. LEXIS 228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ford-v-howard-arkctapp-2009.