Black v. Duffie ( 2016 )


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  •                                   Cite as 
    2016 Ark. App. 584
    ARKANSAS COURT OF APPEALS
    DIVISION IV
    No.CV-16-206
    JOANNE BERNADETTE BLACK,                           OPINION DELIVERED: DECEMBER 7, 2016
    CHARLES AARON BLACK, CLAY
    BLACK, TRAVIS STEPHEN BLACK,                       APPEAL FROM THE HEMPSTEAD
    AND YANCEY REYNOLDS                                COUNTY CIRCUIT COURT
    APPELLANTS                    [NO. 29CV-13-187-1]
    V.                                                 HONORABLE RANDY WRIGHT,
    JUDGE
    JACK NORWOOD DUFFIE, JR., AS
    GUARDIAN OF THE ESTATE OF ELLEN AFFIRMED
    ANNABELLE DUFFIE
    APPELLEE
    ROBERT J. GLADWIN, Chief Judge
    Joanne B. and Charles Black, their children, Clay and Travis Black, and Yancey
    Reynolds appeal the Hempstead County Circuit Court’s November 18 and 30, 2015 orders
    that found null and void a deed transferring an interest in 180 acres and the transfer of a
    share in the Hempstead County Hunting Club (Grassy Lake) and ordered judgment against
    appellants Joanne and Charles in the amount of $52,605.56. Appellants also appeal the
    circuit court’s January 6, 2016 order awarding attorney’s fees in the amount of $31,069.36
    to appellee Jack Duffie, Jr., as guardian of the estate of Ellen Annabelle Duffie (Annabelle).
    Appellants argue four points on appeal: (1) the circuit court erred in declaring null and void
    the transfer of the Grassy Lake share; (2) the claims regarding the Grassy Lake share were
    barred by the statute of limitations; (3) the circuit court erred in declaring null and void the
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    deed for 180 acres to Joanne and Charles Black; and (4) the circuit court erred in awarding
    attorney’s fees to appellee. 1 We affirm.
    I. Facts
    Annabelle, born May 16, 1938, and her adult brother, Jerome Duffie, resided
    together during Annabelle’s entire adult life until Jerome’s death. Annabelle never married.
    Jerome took care of Annabelle’s finances until he died on April 4, 2006, leaving Annabelle
    his property, which included a three-quarter interest in 180 acres located near Hope,
    Arkansas, and a share of stock, along with a cabin, in Grassy Lake. Appellee, Annabelle’s
    nephew, was appointed guardian of the person and estate of Annabelle on June 17, 2013.
    Appellee filed a complaint alleging that on June 21, 2006, less than three months
    after Jerome’s death, Annabelle transferred her share in Grassy Lake to appellants without
    consideration and that appellants had intentionally misrepresented to her that she would
    retain ownership in Grassy Lake and would be giving them only hunting and fishing
    privileges. It alleged that Annabelle had not been told that, by giving up her share of stock,
    she would forfeit her right to continue using the hunting club and living in the cabin. It
    was alleged that, after the stock had been transferred, appellants moved Annabelle from
    Grassy Lake to a “run down, substandard housing unit.”
    The complaint described that Annabelle executed a warranty deed with vendor’s lien
    on August 20, 2009, granting her interest in the 180-acre tract to appellants Joanne and
    1
    We address appellants’ arguments by combining the issues contained within their
    arguments related to the transfers of the share and deed under three headings: (III) Undue
    Influence and Competency; (IV) Consideration; and (V) Judgment for Cut Timber and
    Rescission.
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    Charles. It was alleged that Joanne and Charles intentionally misrepresented the value of
    the tract, that the tract was transferred for a payoff to Annabelle of $150,000, and that the
    land was worth $400,000 or more. Also, Annabelle financed the sale of the property, only
    receiving monthly payments of $1000, while the Blacks maintained possession and use of
    the land, having sold the timber in June 2012.
    Appellee alleged in the complaint that any statutes of limitation were tolled because
    Annabelle had been mentally incompetent, citing Arkansas Code Annotated section 16-56-
    116 (Repl. 2005). He alleged that the transfers of the 180-acre tract and the share in Grassy
    Lake should be declared void for failure of a contract because Annabelle, having been
    incompetent her entire life, had been incapable of entering into a valid and binding contract,
    no consideration had been paid for the hunting club stock, and there had been no mutual
    agreement due to undue influence, duress, and fraud. Appellee also alleged the conversion
    of timber cut from the 180-acre tract and sought rescission of the contracts, an accounting,
    damages, punitive damages, and attorney’s fees. Appellants answered, generally denying the
    complaint, and pled all applicable statutory limitations, waiver, estoppel, laches, and unclean
    hands. 2
    At the bench trial held November 9 and 10, 2015, Betty J. Feir, a licensed
    psychologist, testified that she had conducted a psychological evaluation of Annabelle and
    had made a report in January 2013. She said that Annabelle was “functioning retarded” at
    2
    Appellee’s first amended complaint added Reynolds as a defendant and alleged that,
    after appellees took possession of it, Reynolds paid for substantial improvements to the cabin
    at Grassy Lake in the amount of $78,519.24. Appellee’s second amended complaint added
    Clay as a defendant.
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    that time and that her IQ score was 59, which Feir considered to be mild mental retardation.
    She said that a person of Annabelle’s intelligence would be incapable of determining the
    value of her assets or making financial decisions without assistance. Feir explained that an
    IQ of 100 is average and that 70 is considered borderline retarded. Feir said that Annabelle’s
    mental retardation did not begin in January 2013, but had occurred over a period of years,
    and that a person functioning with a 59 IQ would not be able to make decisions that were
    logical and relevant. Feir’s impression was that Annabelle was not able to say “no” when it
    was needed for her well-being because she appeared to want to please people. It was Feir’s
    opinion that Annabelle would be vulnerable in a business transaction.          Feir said that
    Annabelle did not have the necessary intellectual or cognitive functioning at “this point in
    her life,” or even earlier, because the decline had been gradual, and Annabelle had the
    beginning of dementia.
    James Burton Clem testified that he is a real-estate broker and is licensed in Texas
    and Arkansas. He gave his opinion that the total value of the 180-acre tract was $425,000,
    and in addition, the timber on the land was worth $177,000. In making his analysis, Clem
    testified that he had reviewed an expert report prepared by Jeff Neill, who had valued the
    land at $300,000, which included the timber value. He believed that Neill had not included
    what Clem considered to be the commercial value of the “front 40 acres.”
    Appellee testified that he thought Annabelle was too trusting of people. He said that
    Annabelle had never married and had never worked. He said that Jerome had bought her
    a building that had school supplies in it, known as the School Box, and she had spent time
    there. Neither Jerome nor Annabelle had depended on income from it for their livelihood.
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    He said that Annabelle was living at the Grassy Lake cabin at the time of Jerome’s death,
    but within a month or two, Annabelle moved. In 2009, Annabelle deeded the 180-acre
    tract to Joanne and Charles and signed a warranty deed with vendor’s lien retained
    transferring her ownership to them. At the time of the transfer, Annabelle owned a three-
    quarter interest in the property, and her sister Patricia Holloman owned one-fourth. He
    testified that it was his understanding that Reynolds had helped to negotiate a price of
    $150,000 for Annabelle’s interest, with $1000 monthly payments to Annabelle. He said that
    Annabelle was supposed to receive 5 percent interest under the transaction, but she had not
    been receiving anything but a flat $1000 payment with no interest. He also said that the
    Blacks had not given Annabelle a down payment. He testified that some timber had been
    cut off the property and sold for $58,886.73 and $11,254.01. He asked that the contract for
    the sale of the 180 acres be nullified, for all amounts paid to Annabelle be declared rents for
    use and possession of the property, and for a judgment doubling the amount for which the
    timber had sold. He also asked that the share in Grassy Lake be returned to Annabelle
    because she had not been paid any money for it. He asked that any improvements made to
    the cabin by Reynolds be retained by Annabelle in exchange for the Blacks’ use and
    possession of it.
    Joanne testified that her son Clay had called her one afternoon after bush hogging
    on the 180 acres for Annabelle. Clay told Joanne that a man said that Annabelle had given
    him permission to look at the property because he was thinking about buying it. Joanne
    said she left work early, went to the School Box, asked Annabelle if she planned to sell the
    180 acres, and “she didn’t answer me.” When Joanne told her that she would like an
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    opportunity to buy it, Annabelle did not “make any comment one way or another,” and
    Joanne went home. Joanne said that she then asked Reynolds to negotiate a sales price on
    the property because he was knowledgeable in timberland sales, property sales, and large
    tracts of land because he sold timberland tracts for a living. Joanne said that she was
    Reynolds’s personal secretary and bookkeeper and that she held a real-estate license in
    Arkansas. She said that she had never sold any timberland when she had been active in real
    estate, and she never had a discussion with Annabelle about the price of the land before
    Reynolds became involved. She also said that Annabelle knew what the property was worth
    because Annabelle “had an appraisal when Jerome died.”
    Joanne said that she bought Annabelle’s three-quarter interest for $150,000. She
    testified that she had never obtained a bank loan to purchase the property “because I thought
    maybe [Annabelle] could finance it and by financing it she could make interest on her
    money, on the property, at 5 percent interest on me instead of the bank making interest on
    me. She liked that idea.”       Joanne said that she did not provide Annabelle with an
    amortization schedule, and she did not know how much she had paid on the principal
    amount. She said that she had sold timber off the property on two occasions for a little over
    $70,000, and that she had used that money to purchase Patricia’s one-fourth interest for
    $45,000. She had obtained a bank loan for that purchase, but when she got the money for
    the timber sale, she applied some “plus the interest on that.” She said that she and her
    husband do not live on the property but that her family hunted on the land during deer
    season.
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    She said that at some point in 2006, her sons, Clay and Travis, gained ownership of
    the share of stock at Grassy Lake and the cabin located there. “We did not pay anything
    for that share of stock, to my knowledge,” she said. She acknowledged that Jerome did not
    leave her anything in his Will. She said that the improvements made to the cabin could be
    valued at $70,000 and that Reynolds paid for those “because he wanted to. He told me he
    wanted to do it for the boys and me.” She said that she had worked for Reynolds for a long
    time and that he had paid for the improvements because of their friendship. She said that
    her boys pay the dues at Grassy Lake, and she did not know how much a share of stock was
    worth.
    Joanne testified that when Jerome had been sick before his death, she had applied for
    guardianship over him. She admitted that she could have characterized Annabelle as having
    limited business experience and having limitations that would prevent her from being
    Jerome’s guardian. She read from her petition filed in Jerome’s guardianship proceeding
    and acknowledged that Jerome had taken care of business affairs for himself and his sister
    and that Annabelle was described therein as being “limited and unable to serve” as guardian
    over Jerome. Joanne admitted that it was three years later that she had offered Annabelle
    $150,000 for her interest in the 180 acres and that Annabelle did not have representation
    during the negotiation. She said that she had felt that Annabelle could not serve as guardian
    of Jerome at the time because she was distraught because of her brother, but that Annabelle
    had insisted to her shortly thereafter that she was quite capable. She said she had not seen
    Annabelle since 2011 because she had received a letter from a Hot Springs attorney telling
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    her not to have any more contact with Annabelle. The Hot Springs attorney had handled
    the sale of the mobile-home park owned by Annabelle after Jerome’s death.
    Joanne described her family’s relationship with Annabelle and Jerome as close and
    loving. She said that Jerome had taught the boys to shoot and had taken them for weekends
    with him and Annabelle at Grassy Lake “all the years they were growing up.” She said
    Annabelle got mad at her when she had told Annabelle “it’s either those people or me,”
    referring to Robert Bonnette and Marilyn McRoy, who had bought the mobile-home park
    from Annabelle. Joanne said that when Annabelle “chose them,” she left Annabelle alone
    and then shortly thereafter she had received the letter from the Hot Springs attorney. Joanne
    said that she thought Annabelle had been afraid that if she “didn’t stay with those folks that
    they were going to somehow get her out of there.” She also testified that Jerome had asked
    her and her husband to “keep an eye on Annabelle while he was in the hospital, which
    meant getting her to town from the hunting club cabin to her shop every day and back to
    the cabin. One of us would stay with her.” She said that she had been Annabelle’s friend
    for over twenty years.
    Reynolds testified that he had become involved in negotiating the sales price
    between Joanne and Annabelle in 2009 after he had an update of the property appraisal. He
    had discussed the price with Annabelle when she had come to his office in 2009, and he
    said Bill Cason, Annabelle’s confidant, had been with her. He testified that Annabelle had
    answered “yes” when asked if she wanted to sell her property. He said that Joanne offered
    Annabelle $150,000 for the property and, following that discussion, he had “immediately”
    sent Annabelle and Cason to Mr. Pilkington’s office (an attorney). Reynolds testified that
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    he assumed Annabelle had consulted with Cason about the sales price, as Cason had heard
    the entire discussion. He said that no other figure than $150,000 had been discussed, and
    Annabelle had been told that she would be paid on an installment, with 5 percent interest,
    for fifteen years, when a balloon payment would become due. Reynolds also testified that
    he had spent $75,000 on improvements at the Grassy Lake cabin, and he had done so because
    he had regard for Joanne and her family. He said that he had no ownership interest in that
    cabin and that he was a member of Grassy Lake, had a cabin there, and was on the board of
    directors. When first asked, he said that he was not at liberty to say how much shares of
    Grassy Lake stock were worth, but he later said that he had no idea for what the recent
    share had sold.
    Annabelle testified that she did not remember when she had sold her land to Joanne
    and Charles, and she did not remember having gone to Reynolds’s office. She later said
    that she seemed to remember going to Reynolds’s office and that it seemed like she
    remembered she was offered $150,000, which sounded like a lot of money to her. She said
    that she had not done any investigation to determine what her property was worth, she had
    been receiving $1000 per month, and she hoped it would continue. She also testified that
    she did not remember when she had transferred her share of Grassy Lake to Travis and Clay.
    She said that she did not know why she had done it, and she did not know at the time why
    she was doing it. She said that no one told her it was what Jerome had wished, she did not
    think she could stay in the cabin after the transfer, and she did not remember how long she
    had stayed there after the transfer. She said that she thought Clay or Travis had told her she
    must move out of the cabin. Annabelle later testified that she recalled the 2009 deed transfer
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    to Joanne and Charles, as well as other transactions that occurred regarding other properties
    she had sold since that time.
    Clay testified that he owned half of the share in Grassy Lake with his brother Travis,
    and neither of them paid Annabelle for it. He testified that he spent considerable time
    hunting with Jerome at Grassy Lake and that Annabelle had told him that she gave them
    the stock because Jerome had wanted it like that. He said that he had been living with
    Annabelle at Grassy Lake after the stock transferred and that he had told Annabelle before
    the transfer that “somebody is going to make a statement and let us know we can’t stay up
    here anymore. Otherwise, it’s going to come down on Travis. It’s no reflection on me
    because I’m not the active member. Travis is held accountable.” He said that in 2008,
    [w]e took her and Bill over to the duplex which she owned. She owned a couple
    of trailers out there and the duplex . . . She appeared to be very happy there and at
    the same time she was able to take care of her day-to-day operations. . . . Once she
    got to the duplex, I don’t know who took care of paying the utilities.
    He said that Annabelle took care of herself during the time he had lived with her and that
    when Jerome had been alive, Jerome would hand her money and tell her to get what they
    needed for that night, and she would keep what was left over. He said that when Bill, her
    boyfriend, became ill and could not drive, Annabelle had to rely on others for transportation
    and “stuff.”
    Travis testified that he and his brother had split the share of stock at Grassy Lake,
    there was only one membership per share, and he utilized the membership from that stock.
    He testified that Jerome had been like a grandfather to him and his brother and that some
    people at Grassy Lake thought he was related to Jerome. After the Grassy Lake board had
    met in the fall of 2008, Travis told Clay something must be done with his and Annabelle’s
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    living situation because to continue to live at the cabin was “illegal.” He said that if the
    rules of Grassy Lake were broken, members were suspended or expelled and never allowed
    back on the property. He said that he had never told Annabelle she could not “come and
    hang out at the cabin,” and that she was welcome so long as he was there. He said that he
    did not feel like he had taken advantage of Annabelle and that he loved her. Travis testified
    that he had a copy of a letter that Jerome had left with his Will, which he found when
    Jerome’s brother apparently had left it with the Will at the cabin. The letter was introduced
    as an exhibit, and it is a handwritten list of Jerome’s assets and states in a parenthetical,
    “Annabelle, it is my wish that you put in your will to let Clay and Travis Black get the share
    [in Grassy Lake] when you die.” Travis also testified,
    She has not ever asked me to transfer the share of stock back to her. If she did, I
    would discuss it with her and if she felt that’s what was best then I’d probably talk to
    my brother because I can’t make decisions without him but I would probably say it
    wouldn’t be a good idea because I’d lose my membership and then nobody would
    be allowed on the property.
    Charles Black testified that his family had been friends with Jerome and Annabelle
    for years, and he had never thought there was anything wrong with Annabelle, that
    Annabelle took care of herself and had a business, that she knew how to make a dollar, and,
    when it was needed, she would call on him. He said his wife had negotiated the purchase
    of the 180-acre tract and that, after they had received the letter from the attorney in Hot
    Springs, he had not bothered Annabelle anymore.
    Damon Young testified that he had been the president of the Grassy Lake board of
    directors at the time of the stock transfer to Travis and Clay. He said Reynolds had
    contacted him about the transfer and had delivered transfer paperwork to his office in June
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    2006. Young said that Travis and Clay had received a stock certificate dated June 21, 2006,
    for one share and that the membership committee had approved Travis’s application for
    membership. He did not know if Annabelle had been paid for the share, and although
    Annabelle had signed the documents to transfer, this had not been done in his presence. He
    said that he did not know for how much the most recent shares of stock had sold, but he
    did know that one had sold for $400,000 when he was serving as president. He said that he
    had not been personally aware since that time of any other shares selling for more than that.
    Young said that when the transfer took place, it had been his understanding that Jerome had
    willed his share to Travis and Clay.
    Bobby Kesterson testified that he was a real-estate appraiser living in Hope, Arkansas,
    and he had valued the 180-acre tract at $750 per acre, considering the property as if the
    timber had been harvested and it was bare land. His appraisal was that the land was worth
    $139,000, not including the value of the merchantable timber.
    The circuit court filed an order on November 18, 2016, finding that, when the
    evidence and testimony were taken as a whole, it was clear and convincing that Joanne and
    Reynolds had taken undue advantage of their relationship with Jerome and Annabelle, and
    they had systematically taken control of manipulating the assets given to Annabelle so that
    they could benefit from those assets, including a less-than-market-value price for the real
    estate and no value paid for a share of stock in Grassy Lake, worth at least $400,000 plus
    improvements. As a result of this influence, Clay and Travis had become owners of said
    stock and improvements and were the beneficiaries of the actions of Joanne and Reynolds.
    The order states,
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    At a time in the life of an aging individual who needed the sound advice and counsel
    of trusted individuals Annabelle Duffie received advice and counsel from those bent
    on taking advantage of her. The law is to protect individuals such as Annabelle
    Duffie and the law is not a tool for those who wish to use it as their means of
    depriving others of their property rights.
    The circuit court found the transfer of the three-quarter interest to Joanne and
    Charles to be null and void for lack of adequate consideration and due to the undue
    influence on Annabelle by the Blacks, which made her unable to competently enter into
    the transaction. Further, the circuit court voided the transfer of the share of Grassy Lake,
    finding that it lacked any consideration and that due to the undue influence placed on her
    by the Blacks, she did not understand what she was signing when she was presented with
    the documents for transfer of said share. The circuit court ordered the Blacks to execute a
    deed to Annabelle transferring the 180 acres back to her, notify Grassy Lake of the circuit
    court’s ruling, and transfer the stock back to Annabelle. Further, the circuit court awarded
    appellee judgment against Joanne and Charles in the amount of $70,140.74 for the timber
    that was cut and ordered the attorney for appellee to submit an affidavit in support of
    attorney’s fees and expenses for the circuit court to consider.
    On November 25, 2015, appellants filed a motion to amend under Arkansas Rule of
    Civil Procedure 52 (2015) and/or for a new trial under Arkansas Rule of Civil Procedure
    59. Appellants asserted their defense of limitations on actions and claimed that Annabelle
    was not found to be incompetent until January 2013, which was six years after the transfer
    of the share in Grassy Lake. Therefore, they claimed that the statute of limitations had run
    on that claim prior to her having been deemed incompetent. Appellants asked the circuit
    court to amend its order to reflect that they convey Annabelle’s three-quarter interest in the
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    180 acres, rather than the entire 180 acres. Further, they asked that the judgment amount
    for the sold timber be reduced to a three-quarter interest as well. Appellants asked that the
    circuit court find that appellee did not meet his burden of proof of clear and convincing and
    that his complaint be dismissed. They also asked for fees and costs.
    On November 30, 2015, the circuit court amended its November 18 order to reflect
    that Joanne and Charles should execute a deed conveying to Annabelle a three-quarter
    interest in the 180.85 acres and amended the judgment for the timber cut to $52,605.56.
    The circuit court denied any further relief. On January 6, 2016, the circuit court ordered
    that appellants were jointly and severally liable for $31,069.36 in attorney’s fees. The order
    reflects that appellee’s counsel had submitted an affidavit for fees and costs. After timely
    notices of appeal were filed, this appeal followed.
    II. Standard of Review and Applicable Law
    This court has stated that
    [w]e review traditional equity cases de novo. The test on review is a clearly
    erroneous standard (i.e., whether we can say that the trial court’s findings are clearly
    erroneous). Berry v. Walker, 
    2012 Ark. App. 16
    . 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 was made. 
    Id. In reviewing
             a trial court’s findings of fact, we give due deference to the trial judge’s superior
    position to determine the credibility of witnesses and the weight to be accorded to
    their testimony. Munzner v. Kushner, 
    2010 Ark. App. 196
    , 
    375 S.W.3d 647
    .
    Hughes v. Dalton, 
    2013 Ark. App. 142
    , at 4. This court has also held that where the pivotal
    issue is the credibility of interested parties whose testimony is in direct conflict, we defer to
    the trial court’s determination. Hankins v. Austin, 
    2012 Ark. App. 641
    , at 13, 
    425 S.W.3d 8
    , 16.
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    III. Undue Influence and Competency
    Appellants contend that the circuit court erred in declaring null and void the 2006
    transfer of the Grassy Lake share and the 2009 deed transferring Annabelle’s interest in the
    180-acre tract and argue that there was no undue influence and that Annabelle was not
    incompetent. We consider appellants’ arguments regarding undue influence and Annabelle’s
    competency together.     See Noland v. Noland, 
    330 Ark. 660
    , 
    956 S.W.2d 173
    (1997)
    (Questions of undue influence and mental capacity are so closely interwoven that they are
    sometimes considered together.). We note that
    [i]t is generally recognized that, in order to invalidate a contract on the ground of
    undue influence, a party must be deprived of his free will. Dent v. Wright, 
    322 Ark. 256
    , 
    909 S.W.2d 302
    (1995). The questions of undue influence and mental capacity
    are so closely interwoven that they can be considered together. See Noland v. 
    Noland, supra
    . The influence that the law condemns is not the legitimate influence that springs
    from natural affection, but the malign influence that results from fear, coercion, or
    any other cause that deprives the individual of his free agency. 
    Id. Undue influence
           may be inferred from the facts and circumstances of a case. Looney v. Estate of Wade,
    
    310 Ark. 708
    , 
    839 S.W.2d 531
    (1992).
    Hooten v. Jensen, 
    94 Ark. App. 130
    , 136, 
    227 S.W.3d 431
    , 435 (2006).
    This court recently addressed the issue of mental capacity to execute a deed as
    follows:
    The determination of whether a deed is void because of the mental incapacity
    of the grantor is measured by his or her mental ability at the time of the execution
    of the deed. Munzner v. Kushner, 
    2010 Ark. App. 196
    , at 6, 
    375 S.W.3d 647
    , 651
    (citing Andres v. Andres, 
    1 Ark. App. 75
    , 83, 
    613 S.W.2d 404
    , 409 (1981)). If the
    grantor is mentally competent at the time he executes the deed at issue, the deed is
    valid. 
    Id. The test
    of mental competency to execute a deed was set forth by our
    supreme court in Donaldson v. Johnson, 
    235 Ark. 348
    , 
    359 S.W.2d 810
    (1962), as
    follows:
    If the maker of a deed, will, or other instrument has sufficient mental
    capacity to retain in his memory, without prompting, the extent and
    condition of his property, and to comprehend how he is disposing of it, and
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    to whom, and upon what consideration, then he possesses sufficient mental
    capacity to execute such instrument. Sufficient mental ability to exercise a
    reasonable judgment concerning these matters in protecting his own interest
    in dealing with another is all the law requires. If a person has such mental
    capacity, then, in the absence of fraud, duress, or undue influence, mental
    weakness, whether produced by old age or through physical infirmities, will
    not invalidate an instrument executed by him.
    
    Id. at 352,
    359 S.W.2d at 813 (citations omitted). The mental capacity of the maker
    of a trust or deed is presumed, and the burden rests on the contestants to prove
    incapacity by a preponderance of the evidence. 
    Munzner, supra
    (citing Rose v. Dunn,
    
    284 Ark. 42
    , 46, 
    679 S.W.2d 180
    , 183 (1984)).
    Marston v. Taylor, 
    2015 Ark. App. 176
    , at 4–5, 
    457 S.W.3d 688
    , 691 (emphasis added).
    Appellants argue that appellee did not meet his burden of proof because there was
    no false representation made to Annabelle to induce the 2006 stock transfer, there was no
    evidence that Travis or Clay exerted any fraud or undue influence on her to obtain the
    stock, and the record is devoid of evidence of fraud, fear, or coercion to induce Annabelle
    to execute the 2009 deed. Appellants maintain that Travis and Clay were not strangers to
    Jerome and Annabelle and that Jerome treated them as a grandfather would. Appellants
    assert that there was ample evidence that the Blacks were close family friends of Jerome and
    Annabelle and there was no evidence of any malign influence on Annabelle by any appellant.
    They point to the evidence that their relationship spanned over twenty years; they
    spent holidays and birthdays with Jerome and Annabelle; Jerome taught Travis and Clay
    how to shoot their guns and spent weekends with them at Grassy Lake; and until the boys
    left for college, they attended church with Jerome and Annabelle. Appellants admit that
    Annabelle testified that she did not know why she made the transfer of stock to Travis and
    Clay in 2006 and that she did not receive money for it. Appellants point to Clay’s testimony
    that Annabelle told him that she gave them the stock as a gift because that is what Jerome
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    had wanted. Further, Travis and Clay testified that Annabelle never expressed to them that
    she wanted the stock back. They contend that Annabelle’s testimony—that no one told her
    that it was Jerome’s wish for the boys to have the stock—belies appellee’s theory that
    Annabelle was defrauded by false promises with respect to the stock. Also, appellants claim
    that Annabelle understood that she could not continue to live at the cabin following the
    transfer. Appellants emphasize that Travis and Clay allowed Annabelle to continue to live
    at the cabin with Clay until 2008 when they had to move due to the club rules.
    Appellants contend that Joanne offered to purchase Annabelle’s interest in the 180
    acres for $150,000, and Joanne testified that Annabelle “liked that idea,” which is consistent
    with Annabelle’s testimony that she hoped she would continue to receive monthly
    payments. Annabelle testified that she thought there had been an appraisal done of the 180
    acres by Jeff Neill in 2006. Reynolds testified that the purchase price was based on an
    update of Neill’s appraisal, and Reynolds said that the purchase price was discounted because
    Annabelle possessed only a partial interest in the property. Reynolds said that he met with
    Annabelle and Bill Cason regarding the offer to purchase and advised Annabelle that the
    price would be paid in installments. Annabelle accepted the offer and subsequently executed
    a written acknowledgment of such. Appellants also point to the fact that Joanne and Charles
    acquired the remaining quarter interest in the property from Broadway Bank, trustee of the
    Hollomon Living Trust, for $45,000. 3
    3
    The one-fourth interest in the 180-acre tract was owned previously by Patricia
    Holloman, Jerome’s and Annabelle’s sister.
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    Appellants argue that the law condemns malign influence due to fear or coercion,
    not legitimate influence resulting from natural affections. 
    Hooten, supra
    . They point to
    Jerome’s letter to Annabelle and insist that the transfer of stock to Clay and Travis was
    consistent with Jerome’s express wishes. See Petree v. Petree, 
    211 Ark. 654
    , 
    201 S.W.2d 1009
    (1947) (where part of the evidence considered in upholding a contract was a decedent’s
    letter expressing wishes that were fulfilled under the contract). Appellants admit that at trial,
    nearly nine-and-a-half years after the transfer, Annabelle could not recall why she had made
    the transfer. However, they contend that she offered no testimony that Travis, Clay, or any
    other appellant had pressured her into making the transfer or had otherwise fraudulently
    induced the transfer.
    Appellants insist that the timing is important in relation to the 2009 deed transfer
    because Annabelle had waited three years to sell Joanne and Charles the property. Further,
    appellants contend that the transaction was not unique or irregular; rather, it was one in a
    series of conveyances by which Annabelle disposed of property she had inherited from
    Jerome. They point to six transactions made by Annabelle between 2009 and 2012, which
    included her sale of four lots, a mobile-home park, and the School Box. Appellants assert
    that a property owner who is competent may dispose of property as he or she sees fit. 
    Rose, supra
    . They argue that there is no evidence that any appellant exerted any fraud or undue
    influence on Annabelle to obtain her property, and the circuit court should be reversed.
    Appellants also contend that the law presumes that Annabelle had the capacity to
    make the 2006 transfer. Appellants argue that the relevant time for determination of mental
    capacity is the time the will or deed is executed or, in this case, the time the stock transfer
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    was made—June 2006. They argue that Jack was not appointed guardian of Annabelle until
    June 2013, and the testimony of Dr. Feir, who evaluated Annabelle in 2013, contradicts
    appellee’s allegation that Annabelle had been incompetent her entire life. They emphasize
    Dr. Feir’s testimony that Annabelle’s IQ of 59 was due to a cognitive decline and that
    Annabelle presented as a person with an IQ of 80. Further, they assert that Dr. Feir did not
    testify that Annabelle was incompetent at the time of the stock transfer in 2006. Appellants
    contend that Dr. Feir’s testimony was not conclusive, but must be considered with all other
    evidence bearing on the issue of competency. They cite Reed v. Radebaugh, 
    8 Ark. App. 78
    , 
    648 S.W.2d 816
    (1983), where this court stated that the law presumes every person is
    sane, fully competent, and capable of understanding the nature and effect of his contracts.
    Appellants assert that Joanne testified that Annabelle had taken care of her business
    and property interests following Jerome’s death in 2006. Further, Annabelle had served as
    executrix of Jerome’s estate. Following the stock transfer in 2006, Annabelle had lived with
    Clay at Grassy Lake until 2008. Clay testified that Annabelle had been in control of her
    own money and did with it what she wanted, that she cooked for herself, took her
    medications on time, and was a bargain shopper. When she moved out of the cabin, she
    moved to a duplex she had inherited from Jerome and lived there with her partner Bill
    Cason. Appellants also point to Annabelle’s testimony recalling the members of her family,
    including her parents’ names, their years of death, and her dead siblings’ names and places
    of residence. Annabelle recalled working at Jerome’s hardware store and the School Box
    and the sale of the School Box. She testified that she did her own banking and recalled the
    name of her bank teller. She said that she presently lived at Hope Haven Assisted Living
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    Center because she had fallen and could no longer live on her own. She recalled the sale
    of her interest in the 180 acres to the Blacks and said that she had received $1000 per month
    and hoped to continue to do so. Appellants emphasize that Annabelle wrote to Joanne after
    she had moved to Hope Haven to advise Joanne where to send the monthly payments.
    Finally, Annabelle testified to several conveyances from her to others not parties to this case
    spanning from 2009 through 2012.
    Appellants argue that appellee’s testimony, that it would have been Annabelle’s
    decision what to do with the money had she received $150,000 at the time of the sale of
    her interest in the 180-acre tract, belies his assertion that Annabelle was incompetent. They
    claim that appellee offered no testimony of Annabelle’s incompetence in 2006, 2009, or any
    other material time prior to 2013. Appellants argue that, even though it may have been
    eccentric for Annabelle to live with her brother and work at the School Box, these things
    do not add up to incompetency under the law. They argue that Annabelle recalled the
    extent of her property, including what was owned at Jerome’s death, how she disposed of
    it, and to whom, and generally upon what consideration, and appellants claim that the law’s
    requirements were met. See 
    Marston, supra
    . Appellants contend that Annabelle’s cognitive
    decline does not compel a finding that she lacked capacity to execute the 2006 stock transfer.
    Appellants also contend that Annabelle was competent when she made the 2009
    deed, and it was appellee’s burden to prove otherwise. See 
    Noland, supra
    . They argue that
    appellee offered evidence that Annabelle was incompetent in 2013, but not in 2009, making
    the same argument made in relation to the 2006 transfer and pointing to Dr. Feir’s
    testimony. Appellants contend that Annabelle’s testimony contradicts a finding of incapacity
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    in 2009, as she testified to the details of her family, her property, and the disposal of her
    property. They further contend that it is speculation that Annabelle was incompetent in
    August 2009, and that speculation cannot overcome the presumption in the law that
    Annabelle had the mental capacity to execute the deed. See 
    Petree, supra
    (no expert
    testimony of incapacity at time of contract); 
    Pledger, supra
    (experts opining on incapacity not
    acquainted with the grantor until years after execution of deeds).
    Appellee argues that Annabelle was incompetent and that there was ample evidence
    of her mental incapacity. We agree with his contention. Appellate courts defer to the
    superior position of the trial court to weigh the credibility of the witnesses and to resolve
    conflicts in witness testimony. See 
    Hankins, supra
    .
    Annabelle was unable to recall when the property had been conveyed to Joanne and
    Charles, and she had difficulty recalling being present in Reynolds’s office during the
    negotiations to sell the property.      Annabelle also exhibited a complete inability to
    comprehend the financial ramifications of the sale, expressing her belief that getting $10,000
    was better than receiving $150,000. Joanne testified regarding her petition for appointment
    as Jerome’s guardian and her contention in 2006 that Annabelle could not serve as Jerome’s
    guardian because she had limited business experience and intelligence. Within two months
    of Jerome’s death, Annabelle transferred the stock in Grassy Lake to Clay and Travis.
    Reynolds initiated the discussions regarding the transfer of the stock share, Reynolds was
    Joanne’s employer for nearly thirty years, and both were in the real-estate business. Further,
    Reynolds was a stockholder in Grassy Lake and was on the board of directors at the time of
    Jerome’s death and subsequent transfer of his stock to Clay and Travis. Damon Young,
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    then-president of the hunting club, testified that he had never spoken to Annabelle about
    the transfer, Reynolds had initiated the discussion about the transfer in early June 2006, and
    his impression was that Jerome had left the stock share to Clay and Travis in his Will. Joanne
    testified that she did not know why the stock was transferred to her sons, but later stated
    that it was Jerome’s wish. Jerome’s note states that Annabelle was to leave the stock to Clay
    and Travis when she died, not during her lifetime. Reynolds testified that he could not say
    how much the share was worth, and later said that he did not know its worth. Young
    testified that the last stock sold for $400,000.
    Testimony revealed that appellants were very close to Annabelle prior to and after
    Jerome’s death. However, after acquiring the share in Grassy Lake without payment,
    purchasing the real estate with owner financing, and moving Annabelle out of the cabin,
    appellants and Annabelle became estranged. Appellants testified that they had known and
    taken care of Annabelle for many years and knew that someone had always taken care of
    her.   After her brother’s death, members of the Black family stayed with Annabelle.
    Annabelle was dependent on others, including the Blacks, for her transportation needs. The
    circuit court’s order sets out the relevant findings, and, in weighing the evidence and the
    credibility of the witnesses, it concluded that appellants had taken undue advantage of their
    relationship with Jerome and Annabelle and that they had systematically taken control of
    manipulating the assets given to Annabelle. As a result, appellants had obtained the share in
    Grassy Lake without any consideration.
    We hold that the circuit court’s decision that Annabelle “did not understand what
    she was signing when presented with the documents for transfer of [the] share” was not
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    clearly erroneous. Appellee cites Watson v. Alford, 
    255 Ark. 911
    , 
    503 S.W.2d 897
    (1974),
    where the Arkansas Supreme Court set forth the rule as follows:
    In the oft cited case of Kelly’s Heirs v. McGuire, 
    15 Ark. 555
    (1855), the court
    announced that if one is ‘of such great weakness of mind, as to be unable to guard
    himself against imposition, or to resist importunity or undue influence, a contract,
    made by him under such circumstances, will be set aside. And it is not material from
    what cause such weakness arises. It may be from temporary illness, general mental
    imbecility . . . the infirmity of extreme old age.’ The fact that a grantor is old and in
    feeble health is a circumstance bearing on the question of mental capacity as is gross
    inadequacy of price. Campbell v. Lux, 
    146 Ark. 397
    , 
    225 S.W. 653
    (1920), McEvoy
    v. Tucker, 
    115 Ark. 430
    , 
    171 S.W. 888
    (1914). Of course, we will not set aside
    contracts for mere inadequacy of price. Hawkins v. Randolph, 
    149 Ark. 124
    , 
    231 S.W. 556
    (1921). The grantor’s disability must render him incapable of ‘intelligently
    comprehending and acting upon the business affairs out of which the conveyance
    grew, and to prevent him from understanding the nature and consequences of his
    act.’ McEvoy v. 
    Tucker, supra
    . Each case dealing with mental capacity must be decided
    on its own peculiar facts and circumstances. Hawkins v. 
    Randolph, supra
    .
    
    Id. at 912–13,
    503 S.W.2d at 898.
    Dr. Feir believed that Annabelle could not make appropriate financial decisions, and
    she thought Annabelle was not able to say “no” when it was needed for her well-being
    because she needed to please others. Dr. Feir stated that, with an IQ of 59, Annabelle could
    not make decisions that were logical or relevant. Addressing appellants’ contention that Dr.
    Feir did not testify that Annabelle was incompetent at the time of the 2006 and 2009
    transfers, we note that under 
    Noland, supra
    , proof of a grantor’s mental condition may be
    taken both before and after a conveyance as being relevant to determining her condition at
    the time of the conveyance. Dr. Feir’s evaluation was conducted in January 2013, and her
    findings were relevant because she concluded that Annabelle had never reached a level of
    average intelligence during her adult years, and her cognitive decline had been gradual and
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    would have occurred over a period of, potentially, more than six years before Dr. Feir’s
    evaluation. This period of decline encompasses the times when both conveyances occurred.
    Joanne testified that she considered Annabelle to be “limited” in 2006 when Joanne
    petitioned to be appointed Jerome’s guardian. In making that application, a few months
    prior to the June 2006 transfer, Joanne made representations that Annabelle was an
    inappropriate guardian for her brother because she had limited business experience and
    intelligence. The fact that Annabelle had always lived with her brother and that he had
    cared for her is evidence reflective of Annabelle’s mental capacity at the time of both
    transfers. Prior to his hospitalization, Jerome requested that Joanne watch over Annabelle,
    and during his hospitalization and in the years following Jerome’s death, members of the
    Black family stayed with, and lived in the same home with, Annabelle. When it was
    discovered that Jerome had designated Annabelle as the executrix of his Will, Annabelle’s
    siblings objected to her serving due to her incompetency.
    The circuit court, in its superior position to judge witness credibility and resolve
    disputed facts, found that appellants had exerted undue influence over Annabelle in the
    conveyance of the 180-acre tract, and due to the undue influence, Annabelle had been
    unable to competently enter into the transaction. Appellee contends that ample evidence
    supports the decision. We agree. Joanne testified that when she approached Annabelle
    about selling, Annabelle would not respond, completely ignoring Joanne. Joanne, being
    unable to elicit a favorable response on her own, turned to Reynolds to intervene to work
    out an agreement for the purchase. The only negotiation took place in Reynolds’s office,
    and Annabelle had not done any investigation into the value of the property. Annabelle
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    was unable to recall when she had sold the property and initially testified that she could not
    remember going to Reynolds’s office, but later stated that she seemed to remember the
    meeting, adding that she had “had so much on [her].”
    Reynolds convinced Annabelle to sell her interest in the property to Joanne and
    Charles for $150,000, and Annabelle was to self-finance the sale, with Joanne and Charles
    paying 5 percent interest and $1000 per month. Reynolds and Joanne were realtors. Joanne
    knew that, three years earlier, Annabelle had not been qualified to serve as her brother’s
    guardian because she had limited business experience and mental capacity, yet Annabelle
    was not represented during the sale process. The $1000 payments Annabelle was receiving
    showed no additional payment for interest, and Joanne was unable to testify as to the balance
    remaining under the conveyance nor was there a promissory note supporting the terms of
    the transaction or an amortization schedule to provide information as to the current debt
    owed to Annabelle.
    Mental weakness, although not to the extent of incapacity to execute a deed, may
    render a person more susceptible to fraud, duress, or undue influence, and, when coupled
    with any of them, or even with unfairness, such as great inadequacy of consideration, may
    make a contract voidable, when neither such weakness nor any of these other things alone
    would do so. 
    Watson, supra
    . When all the evidence in the record is considered, the circuit
    court’s determination that Annabelle was incompetent and subject to undue influence is not
    clearly erroneous.
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    IV. Consideration
    A property owner who is competent may dispose of property as he or she sees fit,
    and the question of consideration is immaterial when a conveyance is voluntary. 
    Rose, supra
    .
    Appellants claim that the issue of consideration is irrelevant in regard to the 2006 transfer of
    the Grassy Lake share, not only because it was a voluntary conveyance, but also because it
    was a gift. Fletcher v. Fletcher, 
    2011 Ark. App. 89
    , 
    381 S.W.3d 129
    (elements of an inter
    vivos gift: (1) sound mind of donor; (2) delivery of the property; (3) intent to make an
    immediate, present, final gift; (4) release by the donor of future dominion and control over
    the property; and (5) acceptance by donee)). Appellants claim that each of the elements of
    a valid gift were met here.
    Appellee contends that lack of consideration is a relevant factor because it must be
    viewed in conjunction with the undue influence found by the circuit court. A present
    grant, absent fraud, mistake, or undue influence, which is delivered, accepted, and recorded,
    is valid without consideration. Goodwin v. Lofton, 
    10 Ark. App. 205
    , 
    662 S.W.2d 215
    (1984). Gross inadequacy of price is a circumstance bearing on the question of mental
    capacity. 
    Watson, supra
    . We agree that the transfer of the Grassy Lake stock worth at least
    $400,000 for no consideration is relevant to Annabelle’s mental capacity.
    Appellants argue that $150,000 was adequate consideration for the purchase of
    Annabelle’s three-quarter interest in the 180 acres. They point to their acquisition of the
    remaining one-quarter interest for $45,000. Accordingly, they paid $195,000 for the 180-
    acre tract. Appellants argue that Bert Clem, a real-estate broker, testified that in his opinion
    the property was worth $425,000, but he did not opine what an undivided three-fourths
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    interest was worth in 2009. Bobby Kesterson, a certified real-estate appraiser, testified that
    the best use of the property was for timberland, that in 2009 the bare land was worth $750
    per acre, and his written appraisal reflected a value of $139,000. Kesterson also assumed that
    Jeff Neill’s appraisal of the timber at $117,000 was correct, and he testified that a house
    located on the property was worth about $50,000.
    The circuit court concluded that the value of the 180 acres, including timber and
    improvements, was $302,637.50, and that the Blacks paid “less than market value price” for
    the property. Appellants contend that this is not a ground for setting aside the conveyance.
    
    Rose, supra
    (inadequacy of consideration does not afford grounds for setting aside a voluntary
    conveyance). Appellants claim that the inadequacy of price must be so great that it shocks
    the conscience before it may constitute setting aside a deed. Aberdeen Oil Co. v. Goucher,
    
    235 Ark. 787
    , 
    362 S.W.2d 20
    (1962); Sims v. Stovall, 
    127 Ark. 186
    , 
    191 S.W. 954
    (1917);
    McDonald v. Smith, 
    95 Ark. 523
    , 
    130 S.W. 515
    (1910).
    Appellants argue that the terms of their purchase, $150,000 at 5 percent interest for
    a three-fourths interest in the property, would have been 66 percent of the amount that the
    circuit court determined the property to be worth. They contend that their purchase price
    does not shock the conscience. Annabelle testified that Jeff Neill had appraised the property
    in 2006, and Reynolds testified that the purchase price had been based on that and was
    discounted because of the partial interest. Appellants claim that this is not a situation where
    Annabelle was ignorant of the facts or did not have access to the same information as Joanne
    and Charles. They also claim that they paid significantly less for the remaining interest in
    the property—$45,000, or $250 per acre. Using the circuit court’s $302,637.50, the
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    remaining one-fourth interest was worth about $75,000. Therefore, appellants maintain
    that the consideration for the deed in 2009 does not shock the conscience, and even though
    the price might have been inadequate as viewed by appellee, that is not a sufficient basis to
    undo a voluntary conveyance under Arkansas law.
    However, we agree with appellee’s assertion that inadequate consideration is a
    relevant factor in determining Annabelle’s mental capacity. Appellee argues that appellants
    incorrectly focus on inadequate consideration as the sole reason for the circuit court’s
    holding the 2009 deed null and void. We hold that the circuit court’s finding regarding
    consideration is but one factor in its determination of the existence and effect of undue
    influence and mental incapacity in the execution of the deed. 
    Watson, supra
    . All the
    evidence supports the finding that Annabelle was underpaid for her interest in the land, and
    the supreme court has recognized that the fact that a grantor is old and in feeble health is a
    circumstance bearing on the question of mental capacity, as is gross inadequacy of price. 
    Id. Therefore, we
    affirm on this issue.
    V. Judgment for Cut Timber and Rescission
    Appellants contend that the judgment against Joanne and Charles in the amount of
    $52,605.56, representing three-fourths of the timber proceeds, was based on the circuit
    court’s erroneous order declaring null and void the 2009 deed. Because the circuit court
    was not clearly erroneous in its decision to void the 2009 deed from Annabelle, the
    judgment against Joanne and Charles for harvesting timber off the property is valid and
    affirmed.
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    Appellants also argue that, as a matter of law, the parties must be put into the same
    position as they were prior to the transaction, and the circuit court’s order does not return
    the parties to their prior positions. Cardiac Thoracic & Vascular Surgery, P.A. Profit Sharing
    Trust v. Bond, 
    310 Ark. 798
    , 
    840 S.W.2d 188
    (1992). They argue that the monthly payments
    made to Annabelle should have been returned to them, along with the $75,000 in
    improvements to the cabin at Grassy Lake.
    In cases of rescission, the parties are entitled to be placed, as nearly as circumstances
    will permit, in their respective positions at the time of the conveyance. Bates v. Simmons,
    
    259 Ark. 657
    , 
    536 S.W.2d 292
    (1976). Restoration or return to status quo is governed by
    equitable principles. 
    Id. Equity requires
    that if two parties must suffer, the burden must be
    borne by the one who induced the loss. Lane v. Rachel, 
    239 Ark. 400
    , 
    389 S.W.2d 621
    (1965). In cases of rescission, the party in possession of the land is deemed to owe payments
    for the rental value of the property, in addition to interest on those amounts. 
    Bates, supra
    .
    The testimony at trial was that the fair rental value of the property was $1000 per month,
    and appellee requested that these payments be applied as rents.
    Further, we agree with appellee’s contention that the evidence does not support any
    return on the improvements made by Reynolds on the cabin. There was no evidence of
    any increase in value to the property, and absent such evidence, trial courts do not err in
    not awarding these damages. Heifner v. Hendricks, 
    13 Ark. App. 217
    , 
    682 S.W.2d 459
    (1985).
    Further, appellee requested that the trial court consider the value of any improvements to
    be in compensation for the use of the stock and its hunting rights. Accordingly, the circuit
    court’s order is not clearly erroneous.
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    VI. Statute of Limitations
    Appellants argue that appellee’s claims regarding the 2006 stock transfer were barred
    by the statute of limitations. They contend that Arkansas Code Annotated section 16-56-
    105 (Repl. 2005) imposes a three-year statute of limitations for claims founded on any
    contract or liability not in writing, as well as for claims of fraud. An action on a writing,
    including setting aside a deed, has a five-year limitations period. Ark. Code Ann. § 16-56-
    111. Appellants contend that appellee’s claims arise out of alleged fraud or undue influence
    on the part of appellants. They claim that the three-year statute applies, but argue that, even
    if the five-year limitation applies, the claims are time-barred because over seven years passed
    after June 2006 before the complaint was filed on November 18, 2013.
    Appellants also contend that the statute tolling the limitation would not apply, as
    argued by appellee, because Annabelle was not under a disability at the time of the stock
    transfer. See Ark. Code Ann. § 16-56-116(a). Appellants contend that there was no
    testimony by Dr. Feir that Annabelle was incompetent in June 2006, and Annabelle did not
    have a guardian until 2013.       Therefore, appellants argue that to say Annabelle was
    incompetent at the time of the transfer would be speculation.
    Appellee first contends that the statute of limitations is an affirmative defense and
    appellants failed to raise this defense at trial and did not get a ruling on the issue. He
    contends that “it is well established that ‘something more than a mere assertion of an
    argument in the pleadings is required to preserve the issue for appellate review.’” Shelter
    Mut. Ins. Co. v. Kennedy, 
    347 Ark. 184
    , 188, 
    60 S.W.3d 458
    , 461 (2001). However,
    regardless of whether the issue is preserved, appellee’s claim is not time-barred. Appellants’
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    contention that Annabelle’s disability did not exist at the time the cause of action accrued is
    inaccurate, as set forth above, and is contrary to our affirmation of the circuit court’s finding
    that Annabelle was acting under a mental incapacity in June 2006.
    VII. Attorney’s Fees
    Appellants contend that the circuit court erred in awarding attorney’s fees. Appellants
    first claim that there is no evidence in the record that appellee requested an award of
    attorney’s fees or specified the statute, rule, or agreement expressly authorizing an award of
    fees, pointing out that even though the circuit court’s order states that appellee’s counsel
    submitted an affidavit for fees and costs, neither the circuit court docket nor the record on
    appeal reflect any such affidavit. Appellants argue that this is fatal to the award, citing
    Crawford & Lewis v. Boatmen’s Trust Co., 
    338 Ark. 679
    , 
    1 S.W.3d 417
    (1999), where the
    Arkansas Supreme Court could not reach the merits of whether the chancellor inadvertently
    omitted in the order any provision for attorney’s fees to the bank for its successful defense
    against Crawford & Lewis’s petition because Boatmen’s failed to submit a proper motion
    for fees under Arkansas Rule of Civil Procedure 54(e) (1999).
    Second, appellants claim that there is no applicable statute, rule, or agreement
    authorizing an award of fees, which is fatal to the award. Barnhart v. City of Fayetteville, 
    335 Ark. 57
    , 
    977 S.W.2d 225
    (1998). Appellants argue that this was not a breach-of-contract
    action that entitled appellee to fees because the entire case centered on a theory of fraud and
    undue influence, which are tort theories to which Arkansas Code Annotated section 16-
    22-308 does not apply.
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    Third, appellants contend that an attorney’s-fee award must be reasonable and, here,
    there was no motion or affidavit filed of record and, therefore, no way to assess
    reasonableness of the request. And fourth, appellants complain that the judgment is joint
    and several, yet the circuit court did not adjudicate any cause of action against Reynolds or
    award relief against him. Thus, appellants claim that the fee award is error.
    Nevertheless, we hold that any objection appellants may have had was not preserved
    for appeal, and this court cannot address the merits of their argument. Appellee asserts that
    appellants never objected to (1) the circuit court’s directions, during the trial or in its posttrial
    order, that attorney’s fees would be determined posttrial, (2) appellee’s application for
    attorney’s fees to the circuit court, or (3) the order awarding such fees. Nor did appellants
    file a posttrial motion objecting to the award. Failure to object to an award of attorney’s
    fees to the circuit court constitutes a waiver of the objection. To preserve the issue of
    attorney’s fees for review on appeal, an appellant must raise the issue to the circuit court at
    least by filing a motion to amend the judgment pursuant to Arkansas Rule of Civil
    Procedure 52(b). Washington v. Kingridge Enters., 
    2014 Ark. App. 705
    , 
    450 S.W.3d 685
    . 4
    In their reply brief, appellants contend that the issue of attorney’s fees is preserved,
    arguing that there was no fee petition for them to challenge. Further, they claim that in
    their posttrial motion under Rule 52, they asked for dismissal of appellee’s complaint “at
    Plaintiff’s cost,” among other relief. They argue that, in other words, appellants asked that
    4
    We acknowledge that appellants contend that, contrary to the statement by the
    circuit court, an affidavit was not filed and the circuit court awarded attorney’s fees without
    proper documentation. In that event, appellants should have filed a postjudgment objection
    to bring the issue to the attention of the circuit court. See 
    Washington, supra
    .
    32
    Cite as 
    2016 Ark. App. 584
    appellee bear his own costs, which includes attorney’s fees, as set forth in the circuit court’s
    order, and the circuit court denied that request. Appellants contend that their request for
    relief on this issue via posttrial motion is sufficient to preserve the issue for appeal under
    
    Washington, supra
    . Regardless, appellants contend that reversal of the circuit court’s order
    on the merits of this case necessarily requires reversal of the attorney’s fee award.
    Appellants’ argument is not well taken because, in order to preserve an issue for
    appellate review, appellants were obligated to obtain a specific ruling on it from the circuit
    court. The Arkansas Supreme Court has held that it will not review a matter on which the
    trial court has not ruled, and a ruling should not be presumed. Fordyce Bank & Trust Co. v.
    Bean Timberland, Inc., 
    369 Ark. 90
    , 94, 
    251 S.W.3d 267
    , 270 (2007). Accordingly, we
    cannot presume that the circuit court considered attorney’s fees when it ruled on appellants’
    request for appellee to bear his own costs.
    Affirmed.
    KINARD AND HIXSON, JJ., agree.
    The Rose Law Firm, by: Amanda K. Wofford, for appellants.
    Dunn, Nutter & Morgan, LLP, by: James L. Cook, for appellee.
    33