Beth Marie Riddle, Julia A. Riddle, and Beth Marie Riddle Representing the Interest of Joseph H. Riddle, Sr., Deceased v. Richard J. Udouj, as Special Administrator for the Estate of Olivia K. Udouj, Deceased and Michael A. Udouj and Richard J. Udouj, Trustees of the Olivia K. Udouj Trust Dated February 18, 1983
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SUPREME COURT OF ARKANSAS
No. 07538
BETH MARIE RIDDLE, JULIA A.
RIDDLE, AND BETH MARIE RIDDLE
REPRESENTING THE INTEREST OF
JOSEPH H. RIDDLE, SR., DECEASED,
APPELLANTS,
Opinion Delivered 11807
APPEAL FROM THE CIRCUIT COURT
OF SEBASTIAN COUNTY, NO. CV
2 0 0 5 5 7 , H O N . J A M E S R .
MARSCHEWSKI, JUDGE,
VS.
RICHARD J. UDOUJ, AS SPECIAL
ADMINISTRATOR FOR THE ESTATE OF
OLIVIA K. UDOUJ, DECEASED, AND
MICHAEL A. UDOUJ AND RICHARD J.
UDOUJ, TRUSTEES OF THE OLIVIA K.
UDOUJ TRUST DATED FEBRUARY 18,
1983,
APPELLEES,
AFFIRMED.
ROBERT L. BROWN, Associate Justice
Appellants Beth Marie Riddle, et al. (“the Riddles”) appeal the grant of summary
judgment in favor of appellees Richard J. Udouj, et al. (“the Udoujes”) and assert that the
court erred in deciding the Riddles’ claims regarding breach of the warranties of title and
quiet enjoyment and constructive fraud based on the running of the respective statutes of
limitations. We affirm the circuit court.
On May 30, 1996, the Riddles purchased a home in a residential neighborhood from
the Olivia K. Udouj Trust. As part of that conveyance, Olivia Udouj provided a property
disclosure, which stated in relevant part that: (1) there were no “features of the Property
shared in common with adjoining landowners, such as walls, fences and driveways, the use
or responsibility for which may have an effect on the property”; and (2) there were no
“encroachments, easements, leases, liens [sic] adverse possession claims or similar matters
that may affect the title to the Property.” Prior to completing the purchase, the Riddles
obtained a survey of the property, which indicated that the property described by the legal
description extended several feet beyond the fences that lay to the north and the east of the
property. These fences had been built in the 1950s by Olivia Udouj and her husband.
Sometime after purchasing the property, the Riddles began altering the landscaping
to the east of the fence, leading the property owners to the east, Conrad F. Kaelin and Ava
Paulette Kaelin (“the Kaelins”), to hire an attorney, who sent the Riddles a letter dated
May 26, 1998, demanding that the Riddles not remove the existing fence or disturb any
landscaping to the east of the fence. In July of 2000, the Riddles made additional changes
to the landscaping east of the fence, removing trees, bushes and tulip plants and prompting
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the Kaelins’ attorney to send the Riddles another letter. After a December 2000 ice storm,
the Riddles had tree limbs removed from trees located to the north of the fence.
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On June 18 , 2001, the Riddles filed suit against the Kaelins in circuit court, seeking
to quiet title to the disputed property east of the fence as per their survey. The Kaelins
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On November 17, 2000, the Riddles recorded a deed conveying the property to their
daughter, Julia Riddle.
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counterclaimed, asserting that the fence existing at the time the Riddles acquired the property
described the boundary line by acquiescence. In 2002, the Riddles removed the northern
fence and began constructing a new fence four feet to the north at what they alleged to be the
true property line. This prompted the property owners to the north of the Riddles, Cecil
Knight and Robbie Mae Knight (“the Knights”), to move to intervene in the lawsuit and seek
to quiet title to the property to the north of the original fence. On October 15, 2002, the
circuit court entered judgment in which it concluded that the old fence lines established by
acquiescence the boundaries between the Riddles’ land and the Knights’ and Kaelins’ land.
On January 13, 2005, the Riddles filed suit against the Udoujes and alleged breach
of contract through breach of warranty of title, breach of warranty of quiet enjoyment, and
breach of warranty to defend title. The Riddles also alleged constructive fraud by Olivia
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Udouj based on the representations she made in the property disclosure.
On February 16, 2006, the Udoujes moved for summary judgment and argued that the
Riddles’ claims were barred by the statute of limitations. The Riddles responded that the
statute of limitations for their claims of constructive fraud and breach of the warranties of
title and quiet enjoyment did not begin to run until the entry of the circuit court’s October
15, 2002 order, and, thus, their complaint was timely. Following a hearing on the motion,
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Joseph Riddle, Sr. and Olivia Udouj died in early 2005. On May 13, 2005, the circuit
court entered an order substituting Beth Riddle as the party representing Joseph Riddle’s
interest and James Shoffey as a special administrator representing the interest of Olivia
Udouj. The role of special administrator is currently filled by Richard J. Udouj.
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the circuit court found that the existence of hedges and landscaping on the disputed property
to the north and east of the fence, when coupled with the Kaelins’ May 26, 1998 letter to the
Riddles, triggered the running of the statute of limitations for both the breach of warranty and
constructive fraud claims. An order to this effect was entered on April 24, 2006. The
Riddles appealed. On May 9, 2007, the Arkansas Court of Appeals affirmed the circuit
court’s order. See Riddle v. Udouj, 99 Ark. App. 10, 1617, ___ S.W.3d ___ (2007). On
May 25, 2007, this court granted the Riddles’ petition for review.
After granting a petition for review, this court considers the case as if it had originally
been filed in this court. Van Wagner v. WalMart Stores, Inc., 368 Ark. 606, 608, ___
S.W.3d ___, ___ (2007). The standard used by this court when reviewing a circuit court’s
grant of summary judgment is well established:
Summary judgment is to be granted by a trial court when it is clear that there
are no genuine issues of material fact to be litigated, and the party is entitled
to judgment as a matter of law. Once the moving party has established a prima
facie entitlement to summary judgment, the opposing party must meet proof
with proof and demonstrate the existence of a material issue of fact. On
appellate review, we determine if summary judgment was appropriate based
on whether the evidentiary items presented by the moving party in support of
its motion leave a material fact unanswered. This court views the evidence in
a light most favorable to the party against whom the motion was filed,
resolving all doubts and inferences against the moving party. Our review is
not limited to the pleadings, as we also focus on the affidavits and other
documents filed by the parties. After reviewing undisputed facts, summary
judgment should be denied if, under the evidence, reasonable persons might
reach different conclusions from those undisputed facts.
Lewis v. MidCentury Insurance Company, 362 Ark. 591, 594, 210 S.W.3d 113, 115 (2005)
(citations omitted).
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The Riddles first assert that the statute of limitations did not begin to run on their
breachofthewarrantiesoftitle and quietenjoyment claims until the court entered an order
in October 2002, holding that the disputed property did not belong to the Riddles. It was
only at that time, they argue, they were evicted from the disputed property. Until that time,
they contend, they continued to use and enjoy the land. The Riddles claim, in addition, that
their knowledge that their neighbors disputed their title to the land was insufficient to
constitute eviction and was merely notice of a claim of paramount title. At the very least,
they maintain, there was a disputed issue of fact regarding the date of eviction, which renders
summary judgment inappropriate.
The Udoujes concede that in some cases an eviction is effected by the entry of a
judgment. They contend, however, that a judgment was not needed to evict the Riddles in
the case at hand. On the contrary, the Udoujes assert that the Riddles were never in
possession of the disputed land and were constructively evicted on the date the property was
conveyed to them in 1996, which triggered the statute of limitations. This constructive
eviction, the Udoujes assert, was effected by the encroaching fence lines, which were visible
and obvious. The Udoujes also point out that the Riddles knew from a survey that the fences
were inside the boundaries described in their deed.
If these facts alone are insufficient to evict the Riddles constructively, the Udoujes
argue that they should be considered in conjunction with the letter the Kaelins’ attorney sent
to the Riddles in 1998, which directed them to cease all activities east of the original fence.
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They further contend that the hostile assertion of title contained in the letter, when combined
with the visible encroachments, constituted a constructive eviction. According to the
Udoujes, this constructive eviction was not overcome by the limited use of the disputed
property that the Riddles continued to have.
As a final point, the Udoujes urge that the issue of whether the Riddles had possession
of the property was conclusively decided when the circuit court found in 2002 that the
boundary lines of the property had been established at the original fence lines by
acquiescence. They argue that, as a result, the Riddles are barred by issue preclusion from
relitigating the boundaryline issue.
The statute of limitations for breach of a warranty is five years. Ark. Code Ann. §16
56115 (Repl. 2005). It is well established that the mere existence of superior title, whether
or not the grantee has notice of its existence, is insufficient to constitute breach of a
warranty. Hamilton v. Farmer, 173 Ark. 341, 34445, 292 S.W. 683, 68485 (1927).
Rather, a cause of action for breach of a warranty accrues and the statute of limitations
begins to run only when the grantee is evicted or constructively evicted from the conveyed
property. Thompson v. Dildy, 227 Ark. 648, 651, 300 S.W.2d 270, 272 (1957) (“With some
exceptions, the rule is that an action for damages on a covenant of warranty cannot be
maintained where there has been no eviction.”); Hamilton, 173 Ark. at 34445, 292 S.W. at
68485 (“[A]n oustanding paramount title is not an eviction and does not of itself constitute
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a breach of the warranty.... [T]he existence of [] paramount title itself would not constitute
an eviction nor entitle the appellant to bring suit against the grantors.”).
Eviction occurs when a person is dispossessed by process of law. Black’s Law
Dictionary 594 (8th ed. 2004). Constructive eviction, on the other hand, occurs when a
purchaser is unable “to obtain possession because of a paramount outstanding title.” Id. at
594. Therefore, the question in the case at hand concerns whether the Riddles were
constructively evicted from the disputed property at some time before the 2002 order was
entered.
Neither the bench ruling in the instant case nor the subsequent order of the circuit
court contains an explicit finding that the Riddles were constructively evicted at the time of
conveyance. The court noted that the existing landscaping “wouldn’t necessarily have
triggered the Buyer’s response to clarify that issue.” The circuit court did, however, go on
to note that the existing landscaping, when combined with the cease and desist letter sent by
the Kaelins, was sufficient to put the Riddles on notice of a problem with their title.
As an initial matter, we conclude that the circuit court’s reasoning is flawed. The
Kaelins’ letter could only have put the Riddles on notice of a competing claim to the land.
It could not effect an eviction if the Riddles were currently in possession of the property.
This court’s case law is clear that notice of a claim is not the standard for commencing the
running of the statute of limitations in a breachofwarranty action. Elliott v. Elliott, 252
Ark. 966, 972, 482 S.W.2d 123, 127 (1972) (analyzing Texas law and noting the distinction
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between notice of a pending suit and constructive eviction). Nonetheless, this court can
affirm a circuit court that has reached the correct conclusion, albeit for the wrong reason.
Middleton v. Lockhart, 355 Ark. 434, 439, 139 S.W.3d 500, 503 (2003).
This court has examined the issue of when a covenant of warranty is breached by a
constructive eviction on several occasions. In Smiley v. Thomas, we held that the ownership
of a onehalf undivided oil and gas interest by a third party at the time property was
conveyed to a grantee did not amount to an immediate breach of the grantor’s warranty. 220
Ark. 116, 121, 246 S.W.2d 419, 421 (1952). Instead, this court found that “[t]here had been
no constructive eviction, in effect, until the present suit was filed in December, 1950,
wherein [grantor] was a party and the court held...that [a third party] owned the 1/2 mineral
interest in the land involved here and that the covenant of warranty in the above deed had
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been breached.” Id. Accordingly, the cause of action for breach of warranty did not accrue
nor the statute of limitations begin to run until that time. Id.
Where, however, there is a visible, physical encroachment on the complainant’s land,
a constructive eviction may occur long before a court finds that title is held by a third party.
In Timmons v. City of Morrilton, the grantee of a piece of property sued the grantor, claiming
that “obstacles and obstructions” that the grantor had erected before the conveyance
“prevented [grantee] from full possession of the property described in the deed.” 227 Ark.
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Though it couches its holding in terms of a constructive eviction, the Smiley court
appears to have analyzed the issue using the definition for an actual eviction.
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421, 422, 299 S.W.2d 647, 648 (1957). This court held that, “[w]hen the land conveyed is
at that time in possession of a stranger, the covenant is broken the date the deed is made, and
limitations commence immediately.” Id. at 423, 299 S.W.2d at 649. This court noted
that“[a]ny obstruction or encroachments involving the property [the grantor] conveyed to [the
grantee] existed prior to and at the time of the delivery of the deed and were visible and
obvious, so there was a constructive eviction the day of the deed.” Id. at 422, 299 S.W.2d
at 648. We concluded that the statute of limitations began to run immediately upon
conveyance. Id. at 423, 299 S.W.2d at 649.
In still another case, Van Bibber v. Hardy, this court found that a property owner
could be evicted by the presence of a tenant on the property with a superior right to
possession. 215 Ark. 111, 118, 219 S.W.2d 435, 439 (1949). A court order confirming the
tenant’s superior possessory right was not required for a cause of action for breach of
warranty to accrue. Id. Likewise, in Bosnick v. Hill, this court noted that where a third
party had fenced in a portion of the conveyed land and run cattle on it, the grantee never
obtained possession of the disputed property, and the covenant of seisin was breached
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immediately upon conveyance. 292 Ark. 505, 50809, 731 S.W.2d 204, 20607 (1987).
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We note that a covenant of warranty such as we have in the instant case and a
covenant of seisin are not one and the same. Black’s Law Dictionary 393 (8th ed. 2004).
In the case at hand, the Riddles have not asserted a breach of the covenant of seisin.
Nonetheless, the Bosnick court’s discussion is applicable to this because both breach of the
covenant of seisin and breach of a covenant of warranty by constructive eviction are decided
on the basis of who has possession.
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Turning to the situation in the instant case, it is clear to this court from our case law
that physical encroachments may result in a constructive eviction. For example, where a
home or other building encroaches into a neighbor’s yard, the record owner has been
dispossessed of that portion of the yard. See Nunley v. Orsburn, 312 Ark. 147, 150, 847
S.W.2d 702, 70405 (1993) (holding that construction of a storage shed constituted
possession sufficient to establish a boundary by acquiescence). Likewise, if a person builds
a fence or wall completely surrounding his or her home and in so doing encloses a portion
of their neighbor’s yard, the record owner has been dispossessed. See Bosnick, 292 Ark. at
50809, 731 S.W.2d at 20607. Such an encroachment need not completely foreclose the
possibility of physical entry in order to result in constructive eviction. See, e.g., id. In
Bosnick, there was no indication that the fence involved was unscalable. Id.
The Riddles claim that the visible, physical encroachments onto the disputed property
were not sufficient to prevent their possession of that property. We disagree. Not only were
there visible fences establishing the boundary, but the adjacent property owners, the Kaelins
and the Knights, were using the disputed property as their own on the date of conveyance.
The maintenance of shrubs and other landscaping is the normal use of a residential yard, and
it is to this use that the Kaelins and Knights were putting the disputed property at the time
of the conveyance. The Riddles undoubtedly made attempts to regain possession of the
disputed property by the legal process and by entering their neighbors’ yards for landscaping
activities. None of these attempts, however, change the fact that, as of the date of the
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conveyance, the disputed property was possessed by third parties, the Riddles were
constructively evicted, and the warranties of title and quiet enjoyment were breached.
We further underscore the fact that in 2002, the circuit court found that a boundary
by acquiescence had been established by the existing fence. That precise issue cannot now
be relitigated, as it is an issue that has been decided. Riverdale Dev., LLC v. Ruffin Bldg.
Sys. Inc., 356 Ark. 90, 96, 146 S.W.3d 852, 855 (2004). We affirm the circuit court and its
order of summary judgment based on the fact that a constructive eviction occurred due to the
breach of the respective warranties as of the date of conveyance in 1996 and the limitations
period had expired when the Riddles’ complaint against the Udoujes was filed in 2005. Our
holding of constructive eviction is based on the fact that at the time of the 1996 conveyance,
the existing fences and shrubbery dispossessed the Riddles of part of the land conveyed to
them.
The Riddles next claim that when Olivia Udouj signed the owner property disclosure,
which asserted that no fences were shared in common with adjoining landowners and that
there were no encroachments that might affect the title to the property, she committed
constructive fraud. The statue of limitations for this fraud, they argue, was tolled until they
discovered or should have discovered the fraud. The Riddles further assert that this did not
occur until the circuit court ruled in 2002 that the disputed property did not belong to the
Riddles, because up until that time, the Riddles believed that their title to the disputed
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property was good. To hold otherwise, they contend, would require landowners with
disputed title to sue prior landowners before it is clear that an adverse claim will succeed.
The statute of limitations for a constructive fraud claim is three years. Ark. Code
Ann. §1656105 (Repl. 2005). More than three years have elapsed since the commission
of the alleged fraud. Therefore, the burden is on the Riddles to show that the statute of
limitations was tolled. Scollard v. Scollard, 329 Ark. 83, 87, 947 S.W.2d 345, 347 (1997).
Tolling occurs when the person alleged to have committed the fraud has committed
a “positive act of fraud, something so furtively planned and secretly executed as to keep the
plaintiff’s cause of action concealed, or perpetrated in a way that it conceals itself.”
Hampton v. Taylor, 318 Ark. 771, 778, 887 S.W.2d 535, 539 (1994). It is a fraud that a
plaintiff, by reasonable diligence, could not have detected or had reasonable knowledge. Id.
The Riddles, however, have failed to produce any evidence that Olivia Udouj engaged
in any act designed to conceal her alleged misrepresentation. On the contrary, the Riddles
were aware of all material facts surrounding the alleged fraud, including the fact that the
existing fences were inside the property line described by the survey, before taking
possession of the land. We hold that the Riddles have failed to meet their burden of showing
that the statute of limitations was tolled, and we further hold that the circuit court correctly
concluded that the statute of limitations on the fraudulent concealment claim had expired.
Affirmed.
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