                                  Cite as 2016 Ark. App. 552


                  ARKANSAS COURT OF APPEALS
                                         DIVISION II
                                        No.CV-15-470


                                                  Opinion Delivered: November   16, 2016

MIDFIRST BANK, CAROLYN                            APPEAL FROM THE CRITTENDEN
BEDFORD, AND DENISE BEDFORD                       COUNTY CIRCUIT COURT
                                                  [NO. 18CV-08-10]
                               APPELLANTS

V.                                                HONORABLE VICTOR L. HILL,
                                                  JUDGE
LORI LEDBETTER SUMPTER
                                            AFFIRMED AS MODIFIED IN
                                   APPELLEE PART, AFFIRMED IN PART,
                                            REVERSED IN PART, AND
                                            REMANDED IN PART ON DIRECT
                                            APPEAL; AFFIRMED ON CROSS-
                                            APPEAL



                               DAVID M. GLOVER, Judge


        This case 1 involves separate appeals by appellant MidFirst Bank (MidFirst) and

 appellants Carolyn Bedford and her sister, Denise Bedford, from the order of the Crittenden

 County Circuit Court unwinding the results of a foreclosure decree that was set aside for

 improper service on Carolyn Bedford, the property owner. MidFirst appeals that part of the

 order awarding appellee Lori Sumpter a money judgment against it and from the award of

 indemnification to Carolyn Bedford on a separate claim. Carolyn and Denise Bedford appeal

 from that part of the order directing that they take nothing on their conversion claims against


        1
         In MidFirst Bank v. Sumpter, 2014 Ark. App. 544 (Sumpter I), we dismissed an earlier
 appeal of this case for lack of a final order.
                                Cite as 2016 Ark. App. 552

MidFirst and Sumpter. Carolyn Bedford also argues that the circuit court erred in failing to

remove a cloud on her title. Sumpter has filed a cross-appeal. We affirm as modified in part,

affirm in part, reverse in part, and remand in part on the direct appeals. We affirm on

Sumpter’s cross-appeal.

                              Background and Procedural History

       In July 1986, Carolyn Bedford became the owner of property located in West

Memphis, Arkansas. Bedford assumed the indebtedness owed under a deed of trust and note

executed by Warren Taylor and his wife, Lisa Taylor. This note and deed of trust were later

assigned to MidFirst. The note went into default when Carolyn Bedford failed to make the

March 2007 payment.

       On January 10, 2008, MidFirst filed a judicial-foreclosure action against Carolyn

Bedford and other defendants with record title interests in the property. Service on Bedford

was had by certified mail, restricted delivery, return receipt requested; but the green card

was signed by Bedford’s sister, Denise Bedford, who was residing in the home.

       After Carolyn Bedford failed to respond to the complaint, the circuit court entered

a decree of foreclosure by default on July 25, 2008. The property was offered for public sale

on September 15, 2008, and Sumpter purchased the property for $35,103.46. On October

6, 2008, the circuit court confirmed the sale and approved the Commissioner’s Deed. The

Commissioner’s Deed to Sumpter was recorded the same day.

       On October 2, 2008, Sumpter borrowed $62,250 from Fidelity National Bank,

secured by a mortgage on the property, to finance the purchase and to make improvements

to the property ($35,103.46 was immediately drawn by Sumpter for payment of the


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purchase price, and the remaining balance of the loan was drawn by Sumpter for

improvements and other expenses). The mortgage was recorded shortly after the

Commissioner’s Deed had been recorded. After evicting the Bedfords from the property,

Sumpter began making improvements. In November 2008, Sumpter leased the property.

       On October 15, 2008, Carolyn Bedford moved to set aside the foreclosure decree

for insufficient service of process. She alleged the service of the summons and complaint by

certified mail was improper because it was signed for by Denise Bedford instead of Carolyn

Bedford. Sumpter was made a party.

       In August 2009, the circuit court found service of the foreclosure complaint had been

defective. The court set aside the default judgment, vacated the foreclosure sale, voided the

Commissioner’s Deed, and ordered possession be returned to Bedford within sixty days.

The court noted that MidFirst had failed in its obligation to ensure Sumpter received good

title to the property. Sumpter sought to have the order modified so Bedford would not

regain possession until she paid the value of the improvements made by Sumpter, as

provided by the Betterment Act. 2

       Sumpter sought to quiet title to the property in her name and requested damages

from Bedford and MidFirst alleging various legal theories. Carolyn Bedford answered the

petition and denied the material allegations. MidFirst responded by asserting that the

doctrine of caveat emptor applied to bar any relief to Sumpter. Sumpter later amended her




       2
           Ark. Code Ann. § 18-60-213 (Repl. 2003).


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petition to seek damages under the Betterment Act in the approximate sum of $60,000,

together with lost revenues in the amount of $352,000.

       Carolyn Bedford filed a cross-claim for indemnification against MidFirst for any

damages Sumpter might recover against her. 3 As an alternative theory in an amended cross-

claim, Bedford asked for damages for wrongful foreclosure. She also asked that Fidelity

National’s mortgage lien on the property be canceled. Denise Bedford filed her motion to

intervene for the purpose of asserting a conversion claim against MidFirst and Sumpter.

After the circuit court granted the motion to intervene, Denise Bedford filed her third-party

complaint seeking damages from MidFirst and Sumpter for conversion of personal property

lost or damaged during the eviction.

       By agreed order entered on December 28, 2009, Sumpter’s purchase price of

$35,103.46 was refunded to her by MidFirst. The order reserved the question of whether

she should be awarded interest on the sum.

       Carolyn Bedford filed for Chapter 13 bankruptcy protection on April 15, 2010.

Fidelity National and Sumpter were granted relief from the automatic stay in the summer



       3
         Sumpter also set forth third-party claims against Fidelity National Bank, Stewart
Title, and the current lessees of the property. She further requested the court enter a
judgment declaring that she was not liable to Fidelity National with respect to the loan for
the property or to the lessees under the lease. Sumpter later amended her petition again to
include MidFirst, Bedford, Fidelity National, Stewart Title, and the current lessees in her
claims.
        MidFirst also amended its original foreclosure complaint to add the additional parties
that may claim an interest in the property. Fidelity National, Bedford, and Sumpter each
responded to MidFirst’s amended complaint and denied the material allegations. MidFirst
asserted that Bedford failed to make the March 2007 payment and that the total principal
due was $25,679.46, together with accrued interest of $8,003.60, plus insurance charges,
taxes, late fees, and attorney’s fees.

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of 2011. The bankruptcy court confirmed Bedford’s Chapter 13 plan to become current on

the mortgage in August 2011.

       Sumpter moved for partial summary judgment on the issue of MidFirst’s liability.

MidFirst responded to the motion. Following a hearing, by order entered on July 27, 2011,

the circuit court granted Sumpter’s motion as to MidFirst’s liability only, reserving all other

issues, including damages and apportionment among the parties. The court did not state the

theory or the basis for its ruling but noted both Bedford and MidFirst were inattentive to

their business, which led to the improper foreclosure action, and Sumpter was not to blame.

       The case proceeded to a two-day bench trial. In its order entered on November 2,

2012, the circuit court found Sumpter was entitled to recover from MidFirst the total

amount she had borrowed from Fidelity Bank, plus all associated costs and interest paid and

accrued, which the court found to be $81,516.15, less the refunded purchase price of

$35,103.46, for a balance of $46,412.69, plus interest at the maximum lawful rate until paid.

The court specifically declined to give an offset for the $7,000 in rent Sumpter had received

on the property. Fidelity National was granted a lien on the net proceeds of the judgment,

or such portion thereof as might be necessary, to pay off the balance Sumpter had borrowed.

Finally, the circuit court found the Bedfords could not recover on their conversion claims

because their claims were grossly exaggerated and not credible, their damages not proven,

and any amounts claimed by Carolyn Bedford were more than offset by the improvements

Sumpter had made to the property. 4 That judgment was appealed.


       4
        The remaining parties, Stewart Title, Warren Taylor, Lisa Taylor, Charles
Hutchinson d/b/a A-1 Bail Bonds, Erica Smith, Benjamin Webb, and Natasha Webb, were
dismissed from the case.

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       We dismissed the original appeals by MidFirst and the Bedfords in Sumpter I, supra,

for lack of a final order because the circuit court did not address Sumpter’s Betterment Act

claim against Carolyn Bedford or Bedford’s related cross-claim for indemnity on that claim

against MidFirst.

       On remand, the court entered an order on January 7, 2015, granting Sumpter

judgment against Carolyn Bedford in the amount of $9,650 under the Betterment Act,

finding that the Bedford property had increased in value by $9,650 due to the improvements

by Sumpter. The court declined to offset this Betterment Act judgment by the $7,000 in

rent received by Sumpter during the period in which she was in possession of the property.

The court granted Carolyn Bedford’s cross-claim for indemnification against MidFirst in the

same amount.

       MidFirst timely filed a posttrial motion noting that it had already repaired the

purchase price of $35,103.46 to Sumpter and arguing that the doctrine of caveat emptor

applied to the foreclosure sale and that Sumpter was barred from any other recovery from

MidFirst. MidFirst alternatively argued the Betterment Act was Sumpter’s exclusive remedy

or, at least, limited the amount of her recovery to the value of the improvements and that

any Betterment Act judgment should be against the property owner, Carolyn Bedford, not

MidFirst. Finally, MidFirst argued that Carolyn Bedford was not entitled to judgment for

indemnification for Sumpter’s judgment under the Betterment Act.

       The court entered a final order on May 29, 2015, addressing all parties’ posttrial

motions and denying all other claims for relief from the parties. The order also incorporated

by reference the original November 2, 2012 order and the January 7, 2015 order addressing


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the Betterment Act. Timely notices of appeal and cross-appeal were filed by MidFirst and

the Bedfords. Sumpter filed a notice of cross-appeal in the event the award of damages

against MidFirst is reversed.

                                      Standard of Review

       In civil bench trials, the standard of review on appeal is whether the circuit court’s

findings were clearly erroneous or clearly against a preponderance of the evidence. Tadlock

v. Moncus, 2013 Ark. App. 363, 428 S.W.3d 526. A finding is clearly erroneous when,

although there is evidence to support it, the reviewing court, on the entire evidence, is left

with a firm conviction that a mistake has been committed. Id.

                                          Discussion

                     Sumpter’s claims against MidFirst and Carolyn Bedford

       The order confirming the foreclosure sale was filed on October 6, 2008. Sumpter

borrowed $35,103.46 from Fidelity National Bank to finance the purchase price. 5 The

foreclosure sale was subsequently set aside, and MidFirst refunded the $35,103.46 purchase

price to Sumpter on December 31, 2009. Hence the refund of the purchase price is not an

issue on appeal. 6

       Sumpter’s claims against MidFirst are essentially for the cost and expenses of the

improvements to the Bedford property, plus interest paid and accrued to her lender, Fidelity

National Bank. Sumpter also has a claim for the increased value of improvements against


       5
        The balance of the $62,500 loan was subsequently drawn to finance improvements
to the property and other expenses.
       6
        However, the interest paid by Sumpter to Fidelity National Bank on the $35,103.46
principal is discussed hereinafter.

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Carolyn Bedford under the Betterment Act. As such, we find that both claims by Sumpter

emanate from the improvements to the Bedford property. The claim against MidFirst is for

the actual cost of improvements, while the claim against Carolyn Bedford is for the increased

value of her property. As conceded by Sumpter’s counsel in oral argument, Sumpter cannot

receive both remedies because it would amount to a double recovery. Based on these

competing, yet similar, claims we find that the legislature specifically promulgated the

Betterment Act to provide relief under these circumstances.

       The Betterment Act provides in pertinent part that

               (a) If any person, believing himself or herself to be the owner, either in law
       or equity, under color of title, has peaceably improved, or shall peaceably improve,
       any land which upon judicial investigation shall be decided to belong to another, the
       value of the improvement made as aforesaid and the amount of all taxes which may
       have been paid on the land by such person, and those under whom he or she claims,
       shall be paid by the successful party to such occupant, or the person under whom or
       from whom, he or she entered and holds, before the court rendering judgment in
       such proceedings shall cause possession to be delivered to such successful party.

Ark. Code Ann. § 18-60-213(a). Thus, a person may recover for improvements made to

another’s land under the Betterment Act if she (1) believes herself to be the owner of the

property; and (2) holds under color of title. Smith v. MRCC P’ship, 302 Ark. 547, 792

S.W.2d 301 (1990); Tolson v. Dunn, 48 Ark. App. 219, 893 S.W.2d 354 (1995). The remedy

provided by the Betterment Act is against the true owner of the property. Stephens v. Clark,

121 Ark. 292, 181 S.W. 895 (1915). The Betterment Act also applies without regard to

whether the true owner wanted the improvements or whether he could profitably use them.

Wallis v. McGuire, 234 Ark. 491, 352 S.W.2d 940 (1962); Neal v. Jackson, 2 Ark. App. 14,

616 S.W.2d 746 (1981). Our supreme court has held the statute applies to the purchaser at




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a judicial sale that has been set aside on the ground of irregularity. McDonald v. Kenney, 101

Ark. 9, 140 S.W. 999 (1911); McDonald v. Rankin, 92 Ark. 173, 122 S.W. 88 (1909).

       Here, Sumpter clearly made improvements to the Bedford property while she

believed herself the true owner and while she held color of title from the foreclosure sale.

The evidence introduced in the record indicates that the value of improvements to the

Bedford property for work provided by Sumpter was $9,650. 7 Based on the application of

the Betterment Act, the damages sustained by Sumpter are not the costs of the

improvements, but rather the increased value of the improvements. Therefore, Sumpter’s

judgment against MidFirst is set aside, and Sumpter shall have a judgment against Carolyn

Bedford in the amount of $9,650 as herein below modified.

       The next question is whether the circuit court erred in failing to apply a setoff for

the rents Sumpter received. 8 The Betterment Act specifically provides that “the court may

allow to the owner of the lands, as a setoff against the value of the improvements and taxes,

the value of all rents accruing after the date of the judgment in which it has been allowed.”

Ark. Code Ann. § 18-60-213(e) (emphasis added). Despite the permissive plain language of



       7
          There was conflicting evidence about the increase in value of the property. As part
of its loan process, Fidelity National had an appraisal conducted on September 29, 2008,
prior to any improvements being made, that valued the property at approximately $83,000
when completely improved. The Bedfords’ appraiser valued the property at $77,000 in
March 2010. The county assessor valued the property at $73,350 in 2005, with an appraisal
for $74,500 in 2009 and another appraisal for $74,850 in 2010. Applying the case law and
the Betterment Act to these facts, we cannot say the circuit court’s award of $9,650 is clearly
erroneous.
       8
         There are inconsistencies in the amount of the rental income received by Sumpter.
MidFirst and Sumpter stipulated that the amount was a gross figure of $7,000. It appears the
circuit court’s order utilizing the figure of $8,000 was a scrivener’s error.

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the statute, our supreme court has construed the Betterment Act as not providing for

recovery of the value of improvements unless the improvements exceed the rents and profits

due the owner. Crouch v. Crouch, 244 Ark. 823, 431 S.W.2d 261 (1968). Here, Carolyn

Bedford made a demand for rents and profits against Sumpter. As a result, we hold the circuit

court erred in failing to reduce the judgment on the Betterment Act by the amount of rent

received by Sumpter. Therefore, the judgment in favor of Sumpter against Carolyn Bedford

in the amount of $9,650 is reduced to $2,650.

       The next question is whether the circuit court erred in awarding a judgment for

indemnification in favor of Carolyn Bedford for Betterment Act damages over against

MidFirst. We hold that it was error. The purpose of the Betterment Act was to compensate

the mistaken occupier of property for improvements to the land made in good faith, under

the belief he was the sole owner. Riddle v. Williams, 204 Ark. 1047, 166 S.W.2d 893 (1942).

“The betterments act does not proceed upon the idea of contract or consent of the parties,

or negligence of the owner in asserting his title. It is a rule for administering justice, and the

principle of it is that no one ought to be enriched at the expense of another.” Id. at 1053,

166 S.W.2d at 895 (quoting Beard v. Dansby, 48 Ark. 183, 188, 2 S.W. 701, 702 (1886)).

Here, without regard to negligence, contract, or consent, Carolyn Bedford has received an

increase in value to her property in the amount of $9,650. The court erred in granting

Bedford a judgment over against MidFirst for indemnification and said judgment is reversed.

       The only issue remaining in this part of the discussion relates back to Sumpter’s

purchase of the Bedford property at the foreclosure sale and the refund by MidFirst. While

MidFirst ultimately repaid Sumpter the purchase price of $35,103.46 on December 31,


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2009, Sumpter prayed for the return of interest paid. We hold that Sumpter shall have

judgment against MidFirst for interest at the rate of 6.5% per annum 9 on the principal

amount of $35,103.46 from October 6, 2008, through December 31, 2009.

                                          Conversion

       Carolyn and Denise Bedford argue that the circuit court erred in denying them

recovery on their conversion claims against MidFirst and Sumpter. We disagree.

       Conversion is a common-law tort action for the wrongful possession or disposition

of another’s property. Carpenter v. Layne, 2010 Ark. App. 364, 374 S.W.3d 871. In order to

establish liability for the tort of conversion, a plaintiff must prove the defendant wrongfully

committed a distinct act of dominion over the property of another, which is a denial of or

is inconsistent with the owner’s rights. C.A.R. Transp. Brokerage Co., Inc. v. Seay, 369 Ark.

354, 255 S.W.3d 445 (2007). If the defendant exercises control over the goods in exclusion

or defiance of the owner’s rights, it is a conversion, whether it is for defendant’s own use or

another’s use. Id.

       At trial, Carolyn Bedford sought approximately $6,000 for personal property, and

Denise Bedford sought approximately $70,000 for personal property. There was disputed

evidence as to the amount and condition of the Bedfords’ personal property when it was

left in the storage unit. Denise Bedford presented a detailed list of the items she claimed

were lost. The testimony of the deputy sheriff supervising the move corroborated some of

the items on the list with photographs. However, the deputy did not see any flat-screen



       9
         The promissory note between Sumpter and Fidelity National included an interest
rate of 6.5% per annum.

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televisions. The total of those items on the list was more than $97,000. Included were three

flat-screen televisions, exercise equipment, kitchen appliances, computers, hundreds of CDs

and DVDs, and other electronics. Sumpter presented testimony from some of the crew that

moved the personal property from the house to the storage unit. They said the property was

in good condition when left in the storage unit. However, they denied there were flat-

screen televisions or exercise equipment. Denny Sumpter testified the kitchen appliances

were removed and replaced. Where the pivotal issue is the credibility of interested parties

whose testimony is in direct conflict, we defer to the circuit judge’s determination.

Carpenter, supra. This is because the fact-finder’s choice between two permissible views of

the evidence cannot be clearly erroneous. Rymor Builders, Inc. v. Tanglewood Plumbing Co.,

100 Ark. App. 141, 265 S.W.3d 151 (2007).

       In addition, the Bedfords were using the wrong measure of damages to attempt to

prove their claims. The measure of damages for the conversion of personal property is the

fair market value of the property at the time and place of the taking. JAG Consulting v.

Eubanks, 77 Ark. App. 232, 72 S.W.3d 549 (2002). Fair market value is defined as the price

the personalty would bring between a willing seller and a willing buyer in the open market

after negotiations. Id. Evidence based upon purchase, replacement, or rental prices is

improper. Id. Here, Denise Bedford testified solely as to the replacement cost of the items.

She also testified the replacement values were from 2011, after the house had suffered from

flooding in both 2010 and 2011. She made no effort to relate the value at the time of the

taking. However, the plaintiff must show the fair market value at the time of the taking. Id. If

the only testimony as to the value of the items taken is the replacement cost and there is no


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evidence as to the fair market value, a judgment for the plaintiff cannot stand. Bank of Cabot

v. Ray, 279 Ark. 92, 648 S.W.2d 800 (1983).

                                   Removal of Cloud on Title

         Carolyn Bedford argues that the circuit court erred in not removing a cloud on her

title in the form of the mortgage given in favor of Fidelity National Bank by Sumpter. While

the circuit court stated that Fidelity National now had an unsecured obligation, out of

caution we are concerned that this statement is insufficient to remove a cloud of title. We,

therefore, remand to the circuit court to enter an order removing the lien in favor of Fidelity

National on the Bedford property.

                                         Cross-Appeal

         In her cross-appeal, Sumpter seeks remand for consideration of her various other

causes of action and whether she should be subrogated to the rights of MidFirst. We hold

that Sumpter does not have a cause of action against MidFirst for breach of contract, quasi-

contract, implied contract, or breach of the covenants in the commissioner’s deed because,

in judicial sales, the court is the vendor. Kellett v. Pocahontas Fed. Sav. & Loan Ass’n, 25 Ark.

App. 243, 756 S.W.2d 926 (1988). We agree with the statement of New York’s highest

court:

         With judicial sales, however, the situation is different. The contract is made with
         some officer or agent appointed by the court, who acts under its direction, judgment
         or decree. In such cases the purchaser cannot demand damages as for a breach of
         contract made by the court through its officer or agent, but has to rely upon the
         court to do equity under the circumstances. Therefore, the awarding of
         compensation to an innocent purchaser for his reasonable expenses in examining
         title, where it is found defective, is founded upon equity and not upon the breach of
         contract.




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People v. New York Building–Loan Banking Co., 82 N.E. 184, 185 (N.Y. 1907).

       Likewise, Sumpter does not have a cause of action under the Arkansas Deceptive

Trade Practices Act (ADTPA). The ADTPA, Arkansas Code Annotated sections 4-88-101

to –502 (Repl. 2011), prohibits deceptive and unconscionable trade practices. The circuit

court, in addressing MidFirst’s motion to dismiss Sumpter’s claims, found the alleged

misrepresentation would not support a claim for punitive damages because the “actions at

issue herein were neither reckless nor were they intentional. What we have here is a mere

oversight that resulted in a cascade of unfortunate consequences.” Sumpter does not

challenge the findings that MidFirst was neither reckless nor intentional. A private cause of

action under the ADTPA does not arise absent a showing of both a violation and resultant

damages. Skalla v. Canepari, 2013 Ark. 415, 430 S.W.3d 72. Here, Sumpter has not shown

a violation of the Act.

                                         Conclusion

       In conclusion, we affirm and modify Sumpter’s judgment against MidFirst for an

amount equal to the interest at the rate of 6.5% per annum on the principal amount of

$35,103.46 from October 6, 2008, through December 31, 2009. We remand to the circuit

court for calculation of that interest. We also affirm and modify Sumpter’s judgment under

the Betterment Act against Carolyn Bedford to the amount of $2,650. We reverse Carolyn

Bedford’s indemnification judgment against MidFirst. We affirm the circuit court’s

judgment on the conversion claims of Carolyn and Denise Bedford. We affirm on Sumpter’s

cross-appeal because she does not have any other viable causes of action against MidFirst.




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We remand to the circuit court and order the court to enter an order to remove the cloud

on title evidenced by the lien in favor of Fidelity National Bank.

       Affirmed as modified in part, affirmed in part, reversed in part, and remanded in part

on direct appeal; affirmed on cross-appeal.

       HIXSON and HOOFMAN, JJ., agree.

       Wilson & Associates, PLLC, by: H. Keith Morrison, for appellant.

       Sheila F. Campbell, P.A., by: Sheila F. Campbell, for appellees.




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