Thompson v. Fischer

220 S.W.3d 622, 364 Ark. 380
CourtSupreme Court of Arkansas
DecidedDecember 15, 2005
Docket05-127
StatusPublished
Cited by15 cases

This text of 220 S.W.3d 622 (Thompson v. Fischer) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thompson v. Fischer, 220 S.W.3d 622, 364 Ark. 380 (Ark. 2005).

Opinions

Tom Glaze, Justice.

This appeal stems from a decision of the Prairie County Circuit Court quieting title to property in appellee Richard Fischer. The property at issue consists of four lots — Lots 3, 4, 5, and 6 — located on Block O in the Wintkers Addition subdivision of DeValls Bluff. On April 20, 2004, Fischer filed a petition to quiet title in the property, alleging that his parents acquired title to the property by warranty deed in 1984. In addition, Fischer alleged that he and his predecessors in title had adversely possessed the land for nineteen years under color of tide. In the petition, Fischer alleged that appellants, John and Sue Thompson claimed an interest in the same property by virtue of a limited warranty deed executed by the Arkansas Land Commissioner on April 24, 2002. Fischer averred that he had discovered that he had not been receiving a property tax statement on the four lots, and that Thompson had, in fact, purchased a tax deed to the lots. Fischer attempted to pay Thompson $325.00 in reimbursement for the property, but Thompson returned the check to Fischer. Fischer then tendered the check to the Prairie County Circuit Court and asked that tide to the lots be quieted and confirmed in him.

Thompson answered, asserting that no valid conveyance of title was ever made to Fischer and his alleged predecessors in title. In addition, Thompson denied that Fischer had adversely possessed the property. Alternatively, Thompson alleged that the last record owner of the property, prior to forfeiture for failure to pay taxes, was an individual named William Curlett, and that no conveyance of the property from Curlett or his heirs existed of record. Further, Thompson noted, neither Fischer nor any party from whom he alleged to have received title had ever paid taxes on the subject property.

After a hearing on September 21, 2004, the trial court entered findings of fact on October 5, 2004. The court found that Fischer did not pay taxes on Block O, Lots 3, 4, 5, and 6; the court also found that Fischer should have known that he was not paying taxes on those parcels. The court further found that Fischer exerted control and possession over the property, although Lots 3 and 4 were overgrown. In sum, based on the testimony, the court determined that Fischer “had been exercising control over Lots 3-6 at various times.” Accordingly, considering the circumstances, the court concluded that Fischer had adversely possessed Lots 3, 4, 5, and 6 of Block O, and that title to those lots should be quieted in Fischer. Thompson filed a timely notice of appeal and now raises two points for reversal. Fischer did not file a brief.

The standards governing appellate review of a case that traditionally sounded in equity are well established. Although this court reviews equity cases de novo on the record, we do not reverse unless we determine that the trial court’s findings of fact were clearly erroneous. Holaday v. Fraker, 323 Ark. 522, 920 S.W.2d 4 (1996). The appellate court reviews both law and fact and, acting as judges ofboth law and fact as if no decision had been made in the trial court, sifts the evidence to determine what the finding of the chancellor should have been and renders a decree upon the record made in the trial court. Arkansas Presbytery v. Hudson, 344 Ark. 332, 40 S.W.3d 301 (2001). The appellate court may always enter such judgment as the circuit court should have entered upon the undisputed facts in the record. Id. (citing Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979)).

In his first point on appeal, Thompson asserts that his title, acquired by purchasing the property from the State Land Commissioner at a tax sale, defeated, as a matter of law, Fischer’s claim of ownership based on adverse possession. However, Thompson failed to raise this argument prior to trial, only mentioning it briefly in a post-trial letter to the court1; moreover, in neither its findings of fact nor the judgment confirming title did the trial court rule on this argument. An issue must be presented to the trial court at the earliest opportunity in order to preserve it for appeal. Foundation Telecommunications v. Moe Studio, 341 Ark. 231, 16 S.W.3d 531 (2000). It is well settled that this court does not consider arguments raised for the first time on appeal. Yant v. Woods, 353 Ark. 786, 120 S.W.3d 574 (2003); Short v. Westark Community College, 347 Ark. 497, 65 S.W.3d 440 (2002). Where nothing appears in the record reflecting that a particular argument was formulated before the trial court, or that any ruling was given, the appellant has waived review of that issue. See Hickman v. Trust of Heath, House & Boyles, 310 Ark. 333, 835 S.W.2d 880 (1992). Because Thompson did not present and obtain a ruling on his tax-sale argument in the trial court, the issue is not preserved for this court’s review.

In his second point on appeal, Thompson argues that the trial court erred in finding that Fischer had proven that he adversely possessed the property in question. The establishment of title to real property through adverse possession is governed by both statutes and case law. Ark. Code Ann. § 18-11-106 (Repl. 2003)2 provides, in relevant part, as follows:

(a) To establish adverse possession of real property, the person, and those under whom the person claims, must have actual or constructive possession of the property being claimed and have ■ either:
(1) (A) Held color of title to the property for a period of at least seven (7) years, and during that time have paid ad valorem taxes on the property [or]
(2) Held color of title to real property contiguous to the property being claimed by adverse possession for a period of at least seven (7) years, and during that time have paid ad valorem taxes on the contiguous property to which the person has color of title.
(b) The requirements of this section are in addition to all other requirements for establishing adverse possession.
(c) This section shall not repeal any requirement under existing case law for establishing adverse possession but shall be supplemental thereto, and, specifically, this section shall not diminish the presumption of possession of unimproved and unenclosed land created under § 18-11-102 by payment of taxes for seven (7) years under color of title or the presumption of color of title on wild and unimproved land created under § 18-11-103 by payment of taxes for fifteen (15) consecutive years.

Thompson concedes that Fischer meets the requirements of § 18-ll-106(a)(2), as Fischer paid taxes on the lots contiguous to Block O, Lots 3-6, for at least seven years.

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Thompson v. Fischer
220 S.W.3d 622 (Supreme Court of Arkansas, 2005)

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Bluebook (online)
220 S.W.3d 622, 364 Ark. 380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-fischer-ark-2005.