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Alexander v. Alexander

Court of Appeals of Arkansas, Division III

November 16, 2016

AVERY ALEXANDER, TINA RENEE ALEXANDER, AND CAROLYN VASSAR APPELLANTS
v.
CURTIS ALEXANDER APPELLEE

         APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35-CV-2011-704-2] HONORABLE ROBERT H. WYATT, JR., JUDGE.

         AFFIRMED IN PART; REVERSED IN PART

          Cross & Kearney, PLLC, by: Othello C. Cross, for appellants.

          R. Victor Harper, for appellee.

          PHILLIP T. WHITEAKER, Judge.

         The subject of this appeal is a parcel of property in Jefferson County. The parties to this dispute are siblings. Appellants Avery Alexander and Carolyn Vassar[1] contend that the Jefferson County Circuit Court erred in reforming a deed to a portion of the property; in addition, the appellants challenge the circuit court's decision to award attorney's fees to appellee Curtis Alexander. We affirm in part and reverse in part.

         I. Background

         C.G. Alexander and Jessie Alexander were the parents of fourteen children, including Avery, Carolyn, and Curtis. In 1967, C.G. and Jessie acquired a tract of land that encompassed roughly eighteen acres from George and Lillie Alexander. In 1968, C.G. and Jessie conveyed a small parcel at the northern edge of that tract of land to Clayborn and Elizabeth Carroll. In 1990, Curtis decided to build a new house for his parents on a parcel of property adjacent to, and to the west of, the parcel that C.G. and Jessie had conveyed to the Carrolls. Curtis contracted with L.J. Randle to build the home. In order to accomplish the construction, C.G. and Jessie issued a deed to Curtis and his sister, Olga.[2] Unknown to C.G., Jessie, Curtis, and Olga at the time, however, the deed contained an erroneous property description. It contained the same legal description as the property that C.G. and Jessie had deeded to the Carrolls in 1968, instead of the legal description of the adjacent parcel on which the house was built. Curtis then executed a construction mortgage and promissory note to Randle for the construction of the home. Unknown to Curtis and Randle, these documents also contained the same erroneous property description from the deed. Randle completed construction of the home in 1992. It is undisputed that C.G. and Jessie lived in the home after its completion until their deaths.

         In 1996, Randle sued Curtis for nonpayment on the promissory note and for foreclosure on the mortgage. Randle obtained a default judgment against Curtis. In the process of this litigation, notice of the erroneous property description arose for the first time. As a result, Randle filed an unjust-enrichment action against Curtis, C.G., and Jessie and was awarded a judgment in November 2000.

         In 2010, several events of significance occurred. Jessie died intestate in January 2010, and C.G. died intestate five months later in June.[3] In between these two events, in March 2010, Avery recorded a quitclaim deed conveying C.G.'s real estate to Avery and Carolyn as joint tenants in common. The same day, an affidavit of death terminating C.G. and Jessie's tenancy by the entirety was recorded. Avery took these actions based on a general durable power of attorney purportedly executed by C.G. in April 2008.

         The instant litigation began in November 2011. Curtis filed suit seeking two forms of relief: (1) reformation of the 1990 deed from his parents to him and Olga in order to reflect the correct legal property description; and (2) an order of the court setting aside the March 2010 quitclaim deed. With respect to the latter relief, Curtis alleged that Avery had abused his power of attorney by conveying C.G.'s property "to himself and his sister in an attempt to exclude the remaining siblings from inheriting the remainder of the property." Avery and Carolyn filed an answer generally denying Curtis's allegations and reserving the right to plead further, including pleading affirmative defenses. They subsequently filed an amended answer asserting the affirmative defense of laches, contending that Curtis had "stood idle [sic] by for nearly twenty-two years before he filed his claim to reform the deed."[4]

         After a trial, the circuit court entered judgment granting Curtis both of his requests for relief. As to the reformation of the 1990 deed, the court found that none of the parties contested the fact that the deed contained an erroneous description.[5] The court further found that, despite Avery's pleading of the affirmative defenses of laches and adverse possession, he presented no proof to support those defenses. Accordingly, the court granted Curtis's request to reform the deed, and the judgment set forth the correct legal description thereof. As to the 2010 quitclaim deed, the court first found that the power of attorney that Avery used to quitclaim the property to himself and his sister was invalid. As a result, the court found the quitclaim deed itself to be void. The circuit court also awarded Curtis attorney's fees, travel expenses, and costs totaling $5841.88.

         Avery timely appealed. On appeal, however, Avery does not challenge the circuit court's decision to reform the deed, nor does he argue that the circuit court erred in finding the power of attorney to be void. Rather, he argues that the court lacked jurisdiction to enter the order in the absence of all necessary parties and that the court erred in finding that he presented no proof of his affirmative ...


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