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Mancabelli v. Gies

Court of Appeals of Arkansas, Division III

February 4, 2015

ANDREW MANCABELLI AND ALMA MANCABELLI, APPELLANTS
v.
ANDRE GIES AND MARCI GIES, APPELLEES

Page 786

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT. NO.CV-2012-315-4. HONORABLE CRISTI BEAUMONT, JUDGE.

Karen Pope Greenaway, for appellants.

Cullen & Co., PLLC, by: Tim J. Cullen, for appellees.

WAYMOND M. BROWN, Judge. KINARD and GRUBER, JJ., agree.

OPINION

Page 787

WAYMOND M. BROWN, Judge

Appellants appeal from three circuit court orders: (1) an order granting summary judgment to appellees; (2) an order denying appellants' motion to set aside summary judgment and dismissing their counterclaim; and (3) an order quieting title in the disputed property in appellees. On appeal, appellants argue that the circuit court erred in (1) granting summary judgment in favor of appellees because appellants had standing to defend their title to the real property and there were genuine issues of material fact to be litigated; and (2) dismissing their counterclaim and third-party complaint on the ground of res judicata. This case was previously before this court wherein we dismissed the matter for lack of a final order.[1] Appellants have now cured the deficiency, and we proceed to address the merits of their two points for reversal. We affirm on the first point and reverse the latter for which we remand.

Appellees filed a petition to quiet title against their neighbors, appellants, on February 7, 2012. Subsequently, appellees filed a motion for summary judgment against appellants on May 15, 2012. The circuit court held a hearing on appellees' quiet-title petition on July 3, 2012. On July 13, 2012, the circuit court entered an order granting appellees' motion for summary judgment.[2] Therein, the circuit court granted appellees ten days to amend their pleadings to include any additional necessary parties to the quiet-title action.

On July 23, 2012, appellants filed a counterclaim for adverse possession against appellees and a third-party complaint to quiet title against Linda Graham, individually and as trustee of the Taletta Merritt Revocable Living Trust u/t/d August 1, 2001; Raymond L. Merritt; and Taletta Merritt, and if deceased, the unknown heirs of Taletta Merritt (deceased). On the same date, appellees filed an amended petition to quiet title against appellants, Raymond Merritt, and Rhonda Merritt. Appellees filed a motion to dismiss appellants' counterclaim against them on August 9, 2012.

On August 15, 2012, Raymond L. Merritt filed a motion to dismiss the third-party claim against him. On September 28, 2012, the trial court entered an order dismissing without prejudice appellees' complaint against Raymond L. Merritt. On October 19, 2012, appellants filed an amended counterclaim to quiet title against appellees. On October 25, 2012, the morning of the scheduled hearing on

Page 788

appellants' counterclaim, appellants filed a motion to set aside the summary judgment. Both pleadings were addressed at the hearing. Following the hearing, the circuit court entered an order on October 30, 2012, dismissing without prejudice Linda Graham, individually and as trustee of the Taletta Merritt Revocable Living Trust, and Raymond Merritt. On November 5, 2012, the circuit court entered an order denying appellants' motion to set aside summary judgment and dismissing the amended counterclaim. On November 27, 2012, appellants filed a notice of appeal from the court's November 5 order.

Following a hearing on appellees' petition to quiet title on December 21, 2012, the circuit court entered a decree quieting title in the disputed property in appellees on December 26, 2012. On January 22, 2013, appellants filed an amended notice of appeal stating that they were appealing ...


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