                                 Cite as 2015 Ark. App. 588

                 ARKANSAS COURT OF APPEALS
                                        DIVISION II
                                       No. CV-15-129


IDA KING and KENNETH CALDWELL                     Opinion Delivered   October 21, 2015
                    APPELLANTS
                                                  APPEAL FROM THE PULASKI
                                                  COUNTY CIRCUIT COURT, FIFTH
V.                                                DIVISION [NO. 60CV-2011-192]

                                                  HONORABLE WENDELL GRIFFEN,
LESLIE JACKSON and KAREN                          JUDGE
JACKSON
                       APPELLEES                  REVERSED AND REMANDED
                                                  WITH INSTRUCTIONS



                           PHILLIP T. WHITEAKER, Judge

       Appellants Ida King and Kenneth Caldwell (“King and Caldwell”) appeal a Pulaski

County Circuit Court order dismissing their complaint for ejectment against appellees Leslie

Jackson and Karen Jackson.1 Because it cannot be determined whether the trial court found

that King and Caldwell failed in their burden of proving a prima facie case for ejectment or

whether the trial court improperly failed to shift the burden of proof to the Jacksons upon a

showing of prima facie evidence by King and Caldwell, we reverse and remand.




       1
          This is the third time this case has been before us. The first two times, the appeal
was dismissed for lack of a final order. King v. Jackson, 2014 Ark. App. 488 (failure to dispose
of outstanding claim for trespass); King v. Jackson, 2013 Ark. App. 264 (voluntary dismissal
of trespass claim without prejudice not sufficient). After the second appeal was dismissed for
lack of a final order, King and Caldwell entered a voluntary dismissal of their trespass claim
with prejudice and stated in their notice of appeal that they were abandoning any pending
and unresolved claims. The order is now final and appealable.
                                 Cite as 2015 Ark. App. 588

       This appeal involves a dispute over entitlement to possession of real estate. The real

estate in question was purchased by Elbert Caldwell and his wife in 1958 by warranty deed.2

The deed more particularly described the property as follows:

       All of Tract 4 and all of Tract 3, Except that part of Said Tract 3 which lies North of
       Upper Hot Springs Highway, in MARION ACRES ADDITION to Little Rock,
       Arkansas, subject to an easement 20 ft in width along the East side thereof for road
       right-of-way.[3]

       In 1995, Elbert Caldwell entered into some form of a land transaction with the

Jacksons. The nature of the transaction is at the heart of the current dispute. King and

Caldwell contend that the transaction was a lease. The Jacksons contend that the transaction

was a sale of approximately three acres. It is undisputed that the Jacksons took possession of

approximately three of the six acres purportedly conveyed to Elbert Caldwell in 1958. They

placed a manufactured home on the property. When the manufactured home burned down

in 1997, the Jacksons constructed a 1400-square-foot home on the property over the next ten

to twelve years.

       In 2008, King and Caldwell obtained two deeds to the property in question. The first

was a warranty deed dated May 5, 2008, filed of record in the office of the Recorder of

Pulaski County, Arkansas, as Instrument No. 2008030575.4 The second was a correction


       2
           Elbert Caldwell is the father of the appellants, King and Caldwell.
       3
        The description of the property in the warranty deed gives no indication as to the
amount of property being conveyed. The testimony before the court was that it consisted of
approximately six acres.
       4
         This warranty deed was referenced in the correction deed but was never introduced
as evidence.

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deed dated August 6, 2008. This correction deed purportedly corrects some error in the May

5, 2008 warranty deed.

       Elbert Caldwell died in 2009. In October 2010, King and Caldwell sent the Jacksons

a letter to vacate the property. The Jacksons did not respond to the letter or vacate the

property.

       In January 2011, King and Caldwell filed a complaint against the Jacksons for trespass

and ejectment in the Pulaski County Circuit Court. In their complaint, they alleged

ownership of the subject property pursuant to the correction deed. King and Caldwell then

alleged in their complaint that the Jacksons had entered into a verbal ten-year lease agreement

with Elbert Caldwell and that the agreement contained an option to buy the property for

$6,000. King and Caldwell claimed that the lease expired in 2006 without the Jacksons

renewing the lease or paying any sums toward the lease. They further alleged that the

Jacksons built a permanent dwelling on the property without Elbert Caldwell’s written

permission. Finally, they alleged that they had rescinded any permissive use of the property

by virtue of an October 21, 2010 letter and that the Jacksons had refused to vacate the

property.

       The Jacksons answered the complaint, denying that they had entered into a ten-year

lease with Elbert Caldwell. Instead, they asserted that they had entered into an agreement to

purchase the land “described in the complaint” for $6,000 and that they completed the

purchase of the property on November 8, 1996, when they paid Elbert Caldwell the balance

owed on the property of $4,550. The Jacksons claimed that Elbert Caldwell never provided


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them with a deed to the land because he could not afford to have a survey conducted. The

Jacksons admitted building a home on the property after the manufactured home had burned,

but asserted that Elbert Caldwell was well aware of the construction and had visited the site

to observe the progress. The Jacksons stated that they began to pay the taxes on the property

in 1996, but they paid Elbert Caldwell rather than the Pulaski County Treasurer because the

entire six-acre parcel was still in Elbert Caldwell’s name. Finally, they claimed that Elbert

Caldwell deeded the property to King and Caldwell because he was afraid the property would

get caught up in a potential lawsuit, but that Elbert Caldwell assured them that King and

Caldwell would have the property surveyed and would convey clear title to them.

       The dispute between the parties proceeded to a bench trial. At the trial, both King and

Caldwell testified and presented evidence to the court. They both claimed obtaining

ownership to the property from their parents pursuant to the correction deed. King and

Caldwell claimed that they had paid the property taxes since obtaining title. Both denied that

the Jacksons had ever paid any property taxes or that they had received any rent from the

Jacksons. They admitted that the Jacksons had been in possession of some of the property,

approximately three acres, but contended that this possession was because of a ten-year lease

that had since expired. They demanded that the Jacksons be ejected.

       In response, both Leslie and Karen Jackson testified and presented evidence. They both

testified that they had purchased approximately three acres from Elbert Caldwell and had

been in possession of the property since 1995. They admitted that they did not have a deed

to the property, but introduced a handwritten receipt purportedly signed by Elbert Caldwell


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as proof of payment. The receipt noted the date of the transaction, the address of the property

“20427 Col. Glenn Road, Little Rock, Ar 72210,” and the payment made of $4,550 received

from “Leslie and Karen Jackson” for “Balance on land – 3 acres.” The Jacksons contended

that this payment was the final installment of the purchase price of $6,000.5 In addition to

paying the purchase price, the Jacksons presented evidence that they paid the property taxes

directly to Elbert Caldwell because he still had the deed for the entire 6-acre tract, and that

they built their 1400-square-foot house on the property after the fire had destroyed their

initial manufactured home. They both reported that Elbert Caldwell was well aware of the

home construction and voiced no objections.

       After hearing the evidence, the trial court issued its final written order, concluding that

King and Caldwell “failed to show that they are entitled to have the [Jacksons] ejected from

the property” and dismissing their complaint for ejectment. King and Caldwell appeal this

order, arguing (1) that the trial court failed to shift the burden of proof to the Jacksons once

a prima facie showing of entitlement to possession was presented and (2) that there was

insufficient evidence presented by the Jacksons to overcome their title to the property.

       In order to sustain an action in ejectment, the plaintiff must establish that he is legally

entitled to possession of the property. Ark. Code Ann. § 18-60-201 (Repl. 2003). The

plaintiff may show entitlement to possession by proving that he has title thereto or the right

of possession thereof, and that the defendant is in possession. Ark. Code Ann. § 18-60-206


       5
          They claim to have made two payments on the property. The receipt produced at
trial showed the final payment on the property, and the first receipt was destroyed in the
manufactured-home fire.

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(Repl. 2003). Where a plaintiff makes a prima facie showing that he is entitled to possession

of the property, either by holding title or holding a right of possession, the burden then shifts

to the defendant to defeat the legal title. See Buckhannan v. Nash, 216 F. Supp. 843, 846 (E.D.

Ark. 1963) (citing Foster v. Elledge, 106 Ark. 342, 153 S.W. 819 (1913) and Weaver v. Rush,

62 Ark. 51, 34 S.W. 256 (1896)). However, a plaintiff must succeed, if at all, on the strength

of his own title and cannot depend on the weakness of the defendant’s title. Dorey v. McCoy,

246 Ark. 1244, 1248, 442 S.W.2d 202, 204 (1969); Knight v. Rogers, 202 Ark. 590, 151

S.W.2d 669 (1941); Bunch v. Johnson, 138 Ark. 396, 211 S.W. 551 (1919).

       Here, it is unclear on what basis the trial court premised its dismissal—want of prima

facie evidence of title, want of prima facie evidence of possession, or proof by the Jacksons of

a superior right of possession or title. The written order simply concludes that King and

Caldwell failed to prove they were entitled to have the Jacksons ejected from the property

without specification. When a written order does not specify the basis for the trial court’s

conclusion, the appellate court may utilize the oral pronouncement of the trial court to

determine the intent behind its written orders. See Ward v. Ark. Dep’t of Human Servs., 2014

Ark. App. 491. However, looking at the oral pronouncement of the trial court does not

make the basis for the written order any clearer. King and Caldwell had the burden of

proving, at a minimum, a prima facie entitlement to ejectment by either title or right of

possession. They presented evidence of title by introduction of the correction deed. In its oral

pronouncement, the court noted that the correction deed did not indicate an aggregate total

acreage. However, it is not clear whether the court was actually making a ruling concerning


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prima facie proof of title. What the court did say was that King and Caldwell had failed to

prove their right to possess the three acres that was the subject of the ejectment action,

expressing doubts that the property was the subject of a lease agreement as opposed to having

been sold. However, again, it is not clear if this was a ruling concerning the prima facie proof

of title or an improper failure to shift the burden of proof to the Jacksons as King and

Caldwell allege. Therefore, we reverse and remand for a determination of whether King and

Caldwell presented a prima facie showing of entitlement to possession of the property and,

if so, whether the Jacksons presented sufficient evidence to defeat legal title.

       Reversed and remanded with instructions.

       GLADWIN, C.J., and HOOFMAN, J., agree.

       Johnson & Vines, PLLC, by: James “Chris” McNeal and J. Andrew Vines, for appellants.

       Jeffrey Weber, for appellees.




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