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Barnett v. Parish

January 9, 2006

TOMMY BARNETT, ET AL., PLAINTIFFS,
v.
BOB PARISH, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Susan Webber Wright United States District Judge

Memorandum Opinion and Order

Before the Court are motions to dismiss filed by separate defendants. The parties argued the motions before the Court on December 20, 2005. For the reasons stated below, the motions are granted.

Background

According to the allegations of the complaint, plaintiffs are heirs of Elbert and Lura Barnett who, in the late 1960s, donated more than 250 acres of land to the Des Arc Bayou Watershed Improvement District and the Arkansas Game and Fish Commission ("AGFC"). The land was used to create Lake Barnett. The Barnett heirs say the formation of the lake caused their four separate tracts of land, totaling approximately 55 acres, to become virtually landlocked and inaccessible by regular vehicle. This case concerns plaintiffs' attempt to obtain easements in order to build a road to their property along Des Arc Bayou and Lake Barnett.

According to plaintiffs, in order for them to have reasonable, all-weather vehicular access from their respective tracts of land to a public road in the area, they must cross over and upon a part of the lands owned by some or all of the landowner defendants. Plaintiffs claim that for at least the past five years, all of the landowner defendants have refused to grant plaintiffs an easement for a right-of-way for a private road to allow them access to their property.

In May 2000, plaintiffs filed a petition pursuant to Ark. Code Ann. § 27-66-401 et seq., a "private road proceeding," in the County Court of White County, Arkansas, naming Hugh Durham, director of the AGFC, and landowners Leonard Howard and Richard Fritz as defendants. Plaintiffs petitioned White County Judge Bob Parish to appoint "viewers" and to create an easement for a right-of-way for a private road from a public road to their four tracts of land. Plaintiffs filed a first amended petition in June, and in July 2000, White County retained John Bell, an attorney, to advise Judge Parish on all matters related to the private road proceeding. Mr. Howard filed a motion for a physical examination, and in the late summer of 2000, Judge Parish, Bell, separate counsel for AGFC, plaintiffs, several other landowner defendants, and staff of AGFC undertook an informal view of the four tracts and the surrounding areas. In December 2000, plaintiffs filed a second amended petition, adding landowners Roy Sanchez, Dick Finch, and Scott Crawford as defendants.

On December 27, 2000, Judge Parish granted motions to dismiss filed by the AGFC, Howard, and Fritz. On January 22, 2001, plaintiffs filed a motion to reconsider and set aside that order. On February 23, 2001, plaintiffs filed a third amended petition for private road, adding landowner Bill Golla as a defendant and retaining defendants Howard, Sanchez, Finch, and Crawford. Prior landowner defendants AGFC and Fritz were not named as parties to this proceeding. Judge Parish entered an order on April 18, 2001, appointing three "viewers," Thomas Black, Mitchell Spurlock, and Dennis Mobley, and instructed them to determine if plaintiffs' property was "landlocked," and if so, "the appropriate route for the road to take and the damages caused thereby."

On May 22, 2001, the three viewers, accompanied by Parish, visited the property and viewed several potential rights-of-way for the establishment of a private road from the Barnett heirs' property to a public road. On June 5, 2001, a Report of Viewers was filed. The report stated that according to the viewers' assessment, the property was not landlocked as a reasonable means of access exists from a state highway. On the same day, Parish entered an order dismissing the third amended petition for a private road.

On June 15, 2001, plaintiffs filed a motion for new trial or, alternatively, for amended and additional findings of fact regarding the report of the viewers. A few days later, after learning that attorney Bell was a trustee of the AGFC Foundation, plaintiffs filed a statement of undisclosed conflict of interest on June 19, 2001. On July 2, 2001, Parish denied the motion for new trial or, alternatively, for amended and additional findings of fact, and denied that a conflict of interest existed. See Compl., Ex. M.

On August 1, 2001, plaintiffs mailed a notice of appeal to the White County circuit clerk, which was filed on August 6, 2001; the record was certified on August 7, 2001, and lodged in the White County Circuit Court. Defendant landowners Howard and Crawford filed a motion to dismiss, asserting that the record had not been timely lodged in the county clerk's office. On October 26, 2001, after a hearing, Circuit Court Judge Bill Mills granted the motion to dismiss finding the court had no subject matter jurisdiction because the record had not been timely lodged. On November 26, 2001, plaintiffs filed a notice of appeal and designation of record in the Arkansas Court of Appeals.

On October 22, 2002, the Arkansas Court of Appeals affirmed the decision of the White County Circuit Court on procedural grounds, and later denied plaintiffs' petition for rehearing. On November 12, 2002, plaintiffs filed a petition for review with the Arkansas Supreme Court. The petition was granted on January 9, 2003, and on June 26, 2003, the Arkansas Supreme Court affirmed the decisions of the White County Circuit Court and the Arkansas Court of Appeals. The mandate was issued on July 15, 2003. Barnett, et al. v. Howard, et al., 120 S.W.3d 564 (Ark. 2003).

In the meantime, during the late summer and fall of 2002, some of the plaintiffs contacted Larry White, the then-assistant director of the Arkansas Soil & Water Conservation Commission about getting a permit to enable them to construct an all-weather vehicular crossing over Des Arc Bayou that would, according to the June 5, 2001 report of viewers, provide them with a reasonable means of access to their property from state highway 31. White arranged for another view of the property, and one of the viewers was Dennis Mobley, who had participated in the May 22, 2001, view pursuant to Parish's order. According to plaintiffs, during the September 22, 2002, view arranged by White, Mobley said he had not made a determination that plaintiffs had a reasonable means of access to their property and had never been instructed by Parish to determine whether plaintiffs had such means of access. He further stated that he and the other viewers were instructed only to determine whether plaintiffs were "landlocked," i.e. whether or not the land could be reached without crossing over land owned by an unrelated third party. Mobley further stated he and the other appointed viewers agreed that the plaintiffs' tracts of land in western White County could be reached by crossing over Des Arc Bayou from land owned by Tommy Barnett on the south side of Des Arc Bayou, which land could be reached from highway 31, which was located south of Lake Barnett and Des Arc Bayou. Mobley said that when he signed the report on June 5, 2001, he had not noticed that the report contained the words "reasonable access," and he had no opinion as to whether crossing over the Des Arc Bayou from Tommy Barnett's property to plaintiffs' tracts of land constituted "reasonable access" because all he and the other viewers were instructed to determine was whether plaintiffs' tracts of land were "landlocked."

On November 27, 2002, plaintiffs filed a motion in the County Court of White County to vacate and set aside the order of dismissal of June 5, 2001, and order of July 2, 2001, denying their motion for new trial or, alternatively, for amended and additional findings. Plaintiffs argued, pursuant to Rule 60(c), that the viewers' report reflected a critical factual finding as to "reasonable access" that had not been made by the viewers. See Compl., Ex. N. They also filed a motion requesting Parish's recusal. See Compl., Ex. O.

On the same day, plaintiffs filed in White County Circuit Court a Rule 60 motion to vacate and set aside the order of dismissal entered by Judge Mills in White County Circuit Court on October 26, 2001. On March 8, 2004, plaintiffs filed a supplement to their motion, emphasizing the provisions of Rule 60(k) as the primary basis for their request for equitable relief. On May 18, 2004, Judge Mills entered an Order denying the motion and supplement to motion to vacate and set aside the October 26, 2001, order which dismissed their appeal as untimely.

On May 25, 2004, plaintiffs filed a supplement to their motion to vacate and set aside Judge Parish's order of dismissal and order denying a new trial or, alternatively, for amended and additional findings of facts in the county court, pursuant to Ark. R. Civ. P. 60 (c) and (k). See Compl., Ex. P. Plaintiffs argued that defendants Parish and Bell denied them their rights to due process by erroneously, mistakenly, or fraudulently directing the viewers to determine only whether plaintiffs' land was "landlocked" and by erroneously, mistakenly, or fraudulently inserting into the report the words "reasonable access" when no such finding had been made by the appointed viewers.

These actions allegedly caused plaintiffs to suffer substantial economic losses, severe emotional stress, and the loss of good will among their neighbors.

On June 2, 2004, plaintiffs filed a petition for a writ of mandamus with the White County Circuit Court asking the court to direct Parish to rule on their November 27, 2002 motion to vacate and set aside his order of June 5, 2001. The circuit court denied the petition on the same day it was filed. On June 22, 2004, Parish entered a final order denying all pending motions and dismissing the petition with prejudice.

On July 7, 2004, plaintiffs filed a notice of appeal in the circuit court of White County, stating that Parish's Order of June 22, 2004, would be appealed. On July 21, 2004, plaintiffs' counsel filed a Rule 9 affidavit stating that the White County clerk failed to timely prepare, certify, and tender for filing the "second" designated record. See Compl., Ex. R; Pls'. Br. in Supp. of Resp. to County Defs.' Mot. to Dismiss Am. Comp., docket entry 91. The "second" designated record was prepared and certified on July 22, 2004.

On December 7, 2004, plaintiffs filed a motion for evidentiary hearing on their appeal, and on December 15, 2004, plaintiffs filed a motion asking Judge Mills to make findings of fact and conclusions of law concerning his decision on appeal. On December 17, 2004, Judge Mills stated in a letter-order that he refused to entertain or rule on the issues raised in plaintiffs' second appeal, ...


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