                                 Cite as 2017 Ark. App. 270


                 ARKANSAS COURT OF APPEALS
                                       DIVISION IV
                                         CV-15-937
                                       No.


REBECCA K. MCMAHEN                                 OPINION DELIVERED: MAY 3, 2017
                              APPELLLANT
                                                   APPEAL FROM THE POPE
V.                                                 COUNTY CIRCUIT COURT
                                                   [NO. 58CV-15-063]
KENNETH MACK ROBINSON AND
AMERICAN EXPRESS CENTURION
BANK                           HONORABLE KEN D. COKER, JR.,
                     APPELLEES JUDGE

                                                   REVERSED AND REMANDED


                             ROBERT J. GLADWIN, Judge

        Rebecca McMahen appeals the August 14, 2015 order of the Pope County Circuit

 Court that denied her petition for declaratory judgment. In denying the petition, the trial

 court found that the three-year statute of limitations provided in Arkansas Code Annotated

 section 4-59-209 (Repl. 2011) did not apply to prevent appellee Kenneth Mack Robinson

 from obtaining an order to set aside the August 23, 2007 quitclaim deed that transferred

 certain real property to Rebecca from her husband, David McMahen. Rebecca argues that

 the trial court improperly applied the statute and erred in finding that David had a curtesy

 interest to which Robinson’s judgment lien could attach. We reverse and remand.

                                             I. Facts

        Rebecca filed a complaint on March 2, 2015, seeking a declaration that Arkansas

 Code Annotated section 4-59-209 prevented judgments against David from attaching to the
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land she had acquired from him. 1 She alleged that on August 23, 2007, David quitclaimed

to her certain real property located in Pope County. When he made the transaction, David

was insolvent, and the property was subject to a mortgage. On April 7, 2010, American

Express Centurion Bank (Centurion) obtained a judgment against David; and on October

12, 2010, Robinson was awarded a consent judgment against David, that was filed on

November 1, 2010, in Pope County. Rebecca alleged in her complaint that the statute of

limitations expired on August 23, 2010, on any action arising under Arkansas Code

Annotated sections 4-59-201 to -213 (Arkansas Fraudulent Transfers Act). Rebecca further

claimed that on June 2, 2011, David sought bankruptcy protection by filing a petition for

Chapter 7 relief in the Bankruptcy Court for the Eastern District of Arkansas, and on

October 20, 2011, the debts to Robinson and Centurion were discharged. 2

       Rebecca and David signed an escrow agreement on December 22, 2011, agreeing

to sell the quitclaimed property at issue to Owen Jones. Subsequently, when Jones tried to

sell the property, he could not acquire title insurance because of the prospect that either

Robinson or Centurion might have a cause of action against David under the Arkansas



       1
        Ark. Code Ann. § 4-59-209 provides that a cause of action with respect to a
fraudulent transfer is extinguished unless action is brought within three years.
       2
         Rebecca obtained a “Declaratory Order” on April 15, 2015, after Centurion was
served on March 9, 2015, and failed to answer the complaint. The order states that four
and one-half years had passed since the three-year period of limitations had ended under
Ark. Code Ann. § 4-59-209 for anyone attacking the transfer of land she had received from
David on August 23, 2007. The order states that “the Court is of the opinion that the
Plaintiff may pass title to all or any part of the lands described in Paragraph 2 above to any
person without threat of a successful action by the Defendant, American Express Centurion
Bank, to set aside the transaction whereby Plaintiff initially acquired title to the land.” This
order was not appealed.

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Fraudulent Transfers Act. Rebecca sought a declaration from the trial court that the time

for either Robinson or Centurion to obtain an order setting aside the quitclaim deed—

which would allow their judgments to attach to the land—had expired and that the

judgments against her husband were not enforceable as to her or her property.

       Robinson answered that the quitclaim deed lacked consideration and was void; so,

the lien on the property arising from his judgment was still attached. He argued that the

statute of limitations for an action on a judgment, such as a lien foreclosure, had not run.

Ark. Code Ann. § 16-56-114 (Repl. 2005) (actions on all judgments and decrees shall be

commenced within ten years after cause of action shall accrue). Rebecca filed a first-

amended complaint alleging that Robinson did not have a judgment against any owner of

the property in question. Robinson pled affirmatively that the statute of limitations cited

by Rebecca was not applicable to his efforts to rescind the quitclaim deed to her, which is

a remedy sounding in equity. He alleged that the quitclaim deed at issue was a fraudulent

transfer and lacked consideration and was therefore void. Thus, he argued that David still

had an interest in the subject property, and Robinson’s lien on the property arising from

the judgment was still attached.

       At the hearing on Rebecca’s declaratory-judgment complaint, Rebecca’s counsel

argued that when the three-year statute of limitations had run, Robinson’s opportunity to

pull that property back into David’s ownership had also expired. Counsel claimed, “It did

not affect the lien of the judgment, it’s just that there was no property in Mr. McMahen’s

name to which [Robinson’s] lien might attach.”




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       Counsel for Robinson declared that the three-year statute of limitations did not

preclude other principles of law and equity under Arkansas Code Annotated section 4-59-

210 (Repl. 2011). Counsel argued that a court of equity was not bound by limitations fixed

by statute if it would be inequitable or unjust to do so. Counsel pointed to Rebecca’s

admission that David was insolvent at the time of the transfer and that she had given no

money for the property. Even though the quitclaim transaction occurred about ten years

prior, counsel argued that the homestead exemption the McMahens would have enjoyed

ended in 2011 when they signed the escrow agreement with Jones. Counsel argued that

caselaw supports the position that a homestead is abandoned when the property is sold.

Further, he claimed that the escrow agreement was not recorded, so Robinson had no

reason to know about it until it was brought to his attention in 2015. Finally, counsel

argued that David had a curtesy interest in his wife’s property.

       The trial court filed an order on August 14, 2015, finding that, despite the three-year

limitation provided in Ark. Code Ann. § 4-59-209, the issue of when the time for setting

aside the quitclaim transaction expired was a question of fact under the equitable doctrine

of laches. The trial court stated,

       When applying the doctrine of laches to the timeliness of a rescission action, the
       courts must consider various factors including the circumstances, purposes, and
       nature of the action or inaction and the attempt to rescind a contract “must be made
       within a reasonable time after the facts supporting the right of rescission become
       known.” See Brill, Arkansas Law of Damages, § 31:3, at p. 715; Ark. Code Ann. § 4-
       59-210.

The trial court held that it could not find that the time for obtaining an order to set aside

or rescind the transaction from David to Rebecca had expired under the doctrine of laches,

and it denied the declaratory-judgment petition.

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       Rebecca filed a motion to modify the order on August 19, 2015, and the trial court

denied it by order filed September 10, 2015. A second notice of appeal was filed on

September 18, 2015, and this appeal timely followed. 3

                                    II. Standard of Review

       The standard of review for an appeal from a bench trial is whether the court’s findings

were clearly erroneous or clearly against the preponderance of the evidence. Dye v.

Diamante, 2017 Ark. 42, at 3–4, 510 S.W.3d 759, 762. A finding is clearly erroneous when,

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

with a definite and firm conviction that a mistake has been committed. Id. Because our

inquiry involves statutory interpretation, our review is de novo. Taylor v. City of Fort Smith,

2014 Ark. App. 450, at 3, 441 S.W.3d 36, 39.

                    III. Application of Ark. Code Ann. §§ 4-59-209, -210

       Rebecca argues that the trial court failed to properly apply Arkansas Code Annotated

section 4-59-209 to the undisputed facts of this case. We agree. Section 4-59-209 provides

as follows:

       A cause of action with respect to a fraudulent transfer or obligation under this
       subchapter is extinguished unless action is brought:

       (a) under § 4-59-204(a)(1), within three (3) years after the transfer was made or the
       obligation was incurred;
       (b) under § 4-59-204(a)(2) or § 4-59-205(a), within three (3) years after the transfer
       was made or the obligation was incurred; or
       (c) under § 4-59-205(b), within one (1) year after the transfer was made or the
       obligation was incurred.


       3
       This appeal arrives before us for the second time after we ordered Rebecca
McMahen to file a supplemental addendum on March 15, 2017, and she complied on March
20, 2017. See McMahen v. Robinson, 2017 Ark. App. 169.

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       The parties agree that the quitclaim deed was transferred from David to Rebecca on

August 23, 2007. Robinson obtained his consent judgment against David on October 12,

2010, and it was filed of record on November 1, 2010, which is more than three years after

the quitclaim deed had been transferred to Rebecca. Therefore, any cause of action to

rescind the quitclaim deed based on the Arkansas Fraudulent Transfers Act was extinguished

after August 23, 2010.

       The question of the application of Arkansas Code Annotated section 4-59-210 must

be answered; section4-59-210 provides as follows:

       Unless displaced by the provisions of this subchapter, the principles of law and equity,
       including the law merchant and the law relating to principal and agent, estoppel,
       laches, fraud, misrepresentation, duress, coercion, mistake, insolvency, or other
       validating or invalidating cause, supplement its provisions.

Citing section 4-59-210, Robinson contends that the trial court properly ruled that the

theory of laches applies to his rescission claim despite section 4-59-209 and that the time for

him to bring his rescission claim has not expired.

       Robinson claims that David transferred his interest in the property to Rebecca for

no consideration in August 2007, knowing that Robinson would soon file a lawsuit against

him. David’s sole reason for the conveyance was to prevent Robinson’s future judgment

from attaching to the real property. Robinson contends that he did not pursue rescission

earlier because he could not attach his judgment lien to the property under the homestead

exemption. See Ark. Const. art. IX, § 3. He asserts that the homestead exemption was

waived when Rebecca signed an escrow agreement on December 22, 2011, with Owen

Jones. See Stone v. Bowling, 191 Ark. 671, 87 S.W.2d 49 (1935); Beeson v. Byars, 187 Ark.

966, 63 S.W.2d 540 (1933). Robinson contends that because the escrow agreement was

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not recorded, he could not have known that the homestead exemption had been waived

until Rebecca filed her declaratory-judgment action on March 2, 2015.

          Robinson cites Self v. Self, 319 Ark. 632, 636, 893 S.W.2d 775, 778 (1995), which

states,

                 The doctrine of laches is based on a number of equitable principles that are
          premised on some detrimental change in position made in reliance upon the action
          or inaction of the other party. Anadarko Petroleum v. Venable, 312 Ark. 330, 850
          S.W.2d 302 (1993). It is based on the assumption that the party to whom laches is
          imputed has knowledge of his rights and the opportunity to assert them, that by
          reason of his delay some adverse party has good reason to believe those rights are
          worthless or have been abandoned, and that because of a change of conditions during
          this delay it would be unjust to the latter to permit him to assert them. Briarwood
          Apartments v. Lieblong, 12 Ark. App. 94, 671 S.W.2d 207 (1984).

          Robinson contends that for laches to bar the rescission, Rebecca must, by reason of

Robinson’s delay, have good reason to believe that his right to rescind the fraudulent transfer

was abandoned or worthless. Self, 319 Ark. at 636, 893 S.W.2d at 778. Robinson claims

that Rebecca knew the transfer of real property by her husband was a fraudulent attempt to

keep it from attaching to Robinson’s judgment lien; therefore, Rebecca did not have a good

reason to believe that Robinson’s right was abandoned or worthless. Thus, Robinson argues

that the trial court’s finding that the time to bring the rescission claim had not expired is not

clearly erroneous.

          In Self, the issue was whether the chancellor had erred in failing to apply the doctrine

of laches after the appellee had waited more than twenty-four years to file her action to set

aside a divorce. Id.      The supreme court held that the appellee had allowed the voidable

decree to remain in effect for twenty-four years, even though her attorney had told her it

could be set aside. Id. at 637, 893 S.W.2d at 778. The court stated,


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               Our general rule is that a party who has knowledge of a judgment against
       himself or herself is required to exercise reasonable diligence in seeking to have it set
       aside, and an unexcused delay can justify a court in refusing to grant relief prayed for.
       O’Neal v. B.F. Goodrich Rubber Co., 204 Ark. 371, 162 S.W.2d 52 (1942).

Id., 893 S.W.2d at 778.

       In the present case, the trial court found that the issue of when the time for setting

aside the quitclaim transaction expired was a question of fact under the equitable doctrine

of laches. We disagree. The question whether or when Robinson knew of the quitclaim

transfer is irrelevant in this circumstance because the time limitation in section 4-59-209

had run its course before Robinson obtained a judgment against David, and any claim

attacking the quitclaim deed had been extinguished. Section 4-59-210 does not apply

because Robinson did not obtain his judgment against David within the three-year period

that the conveyance was vulnerable under section 4-59-209. Had his judgment been

granted within the three-year period following the quitclaim-deed transfer to Rebecca,

Rebecca could have utilized section 4-59-210 and argued that laches prevented any claim

Robinson may have had after the three-year period had expired.

      Because we hold that Robinson is barred from making a fraudulent-transfer claim

attacking the quitclaim deed conveyed to Rebecca on August 23, 2007, we decline to

address Rebecca’s arguments involving curtesy.

       Reversed and remanded.

       GRUBER, C.J., and VAUGHT, J., agree.

       Jon R. Sanford, P.A., by: Jon R. Sanford, for appellant.

      Niswanger Law Firm PLC, by: Stephen B. Niswanger and Benjamin M. Ross, for appellee
Kenneth Mac Robinson.


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