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Burks v. Liberty Bank

Court of Appeals of Arkansas, Division II

November 19, 2014

CHAMPION BURKS, CODY BURKS, CHAD BURKS, and COLTON BURKS APPELLANTS
v.
LIBERTY BANK, as Guardian of the Estate of Merium Joy Burks, an Incapacitated Person, and as Successor Trustee of the Merium Joy Burks Revocable Trust UAD 08/19/2008; and JUDY MOORE, as Trustee of the Merium Joy Burks Revocable Trust UAD 11/24/2001 APPELLEES

APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT [NO. CV-2011-970-IV] HONORABLE MARCIA HEARNSBERGER, JUDGE

Robert S. Tschiemer, for appellants.

Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson; and Peel Law Firm, P.A., by: Richard L. Peel, for appellees.

WAYMOND M. BROWN, JUDGE

This is an appeal from an order of summary judgment entered by the Garland County Circuit Court in an ejectment/unlawful detainer action. The court awarded possession of real property to the trustees of two trusts and the guardian of the incapacitated settlor's estate, evicting the settlor's grandsons from the premises. The court also denied the grandsons' posttrial motion to stay issuance of the writ of possession. The grandsons appeal, arguing six points for reversal. Finding that only two of the grandsons' arguments are preserved, we affirm the circuit court.

The settlor, Merium Joy Burks, established two trusts: the Merium Joy Burks Revocable Trust UAD 8/19/2008 (2008 Trust), and the Merium Joy Burks Revocable Trust UAD 11/24/2001 (2001 Trust). The Pope County Circuit Court (the guardianship court) declared Burks incapacitated in 2009, and appellee Liberty Bank is the guardian of Burks's estate and trustee of the 2008 Trust. Appellee Judy Moore is Burks's daughter, the guardian of her person, and the trustee of the 2001 Trust. Appellants Champion Burks, Cody Burks, Chad Burks, and Colton Burks (collectively, appellants or the Burkses) are Burks's grandsons and Moore's nephews. They have lived on 180 acres of real property located in Garland County for approximately twenty years, contending that they and their father had an agreement with Burks for them to do so.

The present case arose in 2011, when the guardianship court determined that the property was to be sold and the proceeds used to care for Burks. When the Burkses did not move from the property, the bank and Moore (collectively, the bank) sued appellants in unlawful detainer. The Burkses answered the complaint, generally denying the allegations.

An amended complaint was filed. Appellants answered the amended complaint and counterclaimed for unjust enrichment for the $700, 000 in materials, time, and labor they spent in building the house on the property. The bank denied the counterclaim's allegations.

On March 8, 2013, the bank filed a motion for summary judgment, arguing that the title to the property was vested in either Moore, as trustee of the 2001 Trust; the bank, as trustee of the 2008 Trust; or the bank, as guardian of Merium Burks's estate. The bank further argued that the Burkses made no claim of title to the property and, therefore, the counterclaim failed to state facts upon which relief could be granted.

Appellants responded to the summary judgment motion, arguing that a detainer action was only proper in the landlord-tenant context and that they were disputing ownership and possession of the property. They also argued that the proof showed that Merium Burks made a holographic will leaving the property to appellants' father and that Burks's guardians had a fiduciary duty to give effect to that intent. This intent was also the basis for their assertion that a constructive trust should be imposed.

The bank replied to the Burkses's responses to the motion for summary judgment and argued that the Betterment Act[1] controlled this action and negated the Burkses's claim for a constructive trust because the Burkses had neither color of title or a claim of ownership.

The bank filed a second amended complaint. In addition to the original unlawful detainer count, it added an ejectment count seeking possession of the property. The Burkses answered, denying the material allegations.

The bank likewise amended the motion for summary judgment and asserted entitlement to possession of the property because the Burkses made no claim of title to the property. It further argued that the Burkses had no cognizable claim for "improvements" to the property because of the Betterment Act. Appellants responded as they did to the original motion for summary judgment.

Following a hearing, the circuit court entered an order granting the motion for summary judgment. The court found that Merium Burks had conveyed the property to the 2001 Trust, that Merium Burks was still alive, that the bank and Moore were the guardians of Merium Burks and the trustees of her two trusts, that the Burkses had made no claim of title to the property and had no color of title to the property, and that the Burkses's counterclaim failed to state facts upon which relief could be granted. ...


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