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Lewis v. City of Benton

Court of Appeals of Arkansas, Division IV

February 14, 2018

R. DAVID LEWIS, AL STUKENBORG, AND PHILLIP WISE APPELLANTS
v.
CITY OF BENTON APPELLEE

         APPEAL FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63CV-13-3] HONORABLE GARY ARNOLD, JUDGE

          R. David Lewis, for appellants.

          Jensen Young & Houston, PLLC, by: Brent Houston, for appellee.

          PHILLIP T. WHITEAKER, Judge

         R. David Lewis, Al Stukenborg, Randy Bartlett, and Phillip Wise sued the City of Benton (City) over a land dispute and an ordinance governing property under and around Lake Norrell in Saline County, Arkansas. The Saline County Circuit Court found (1) that the 1952 deeds transferring title of the disputed property to the City were not void for vagueness; (2) that separate plaintiff Lewis did not acquire title to the disputed property through the 2013 deed from the City's purported predecessor in title; (3) that the City's ordinance regulating Lake Norrell was proper; and (4) that the plaintiffs' request for quiet title and for an injunction were denied. This appeal followed. We cannot address the merits of the appeal at this time. This matter is a procedural morass, and we cannot ascertain from the convoluted record before us that we have been presented with a final, appealable order.

         I. Procedural Difficulties

         A. The Parties

         Litigation began in January 2013. Initially, Lewis, Stukenborg, and Wise, as plaintiffs, filed a "pro se" complaint against the City. Lewis, a licensed, practicing attorney in this state, was the only party to sign this "pro se" complaint, and he did so on behalf of himself, Stukenborg, and Wise. The City answered the complaint and asserted certain affirmative defenses, including that not all necessary parties had been joined to the action.

         In September 2013, Plaintiffs Lewis, Stukenborg, and Wise filed their first amended complaint adding Randy Bartlett[1] as a party plaintiff and asserting that the complaint was in the nature of a class action. Again, Lewis signed the complaint on behalf of himself as well as Stukenborg, Bartlett, and Wise.[2] The City again answered, but the caption heading of the answer did not include Randy Bartlett.

         In September 2014, Lewis, Stukenborg, Bartlett, and Wise, as plaintiffs, filed a motion for summary judgment, again signed only by Lewis. The City responded to the motion, followed by the plaintiffs' reply, which again was signed only by Lewis-this time as counsel for the plaintiffs. At the hearing on the motion for summary judgment, the City argued that Lewis should be removed as counsel of record since he was currently acting in the role of party, attorney, and witness.[3] The trial court advised Lewis that he could not go forward as both counsel and witness and urged him to take corrective action. Concerning whether the other landowners around Lake Norrell were necessary parties to the action, the court indicated that it believed they were, but it is unclear from the record whether the court made a definitive ruling on the issue. Ultimately, the court declined to rule on the motion for summary judgment at that time.

         In December 2014, Lewis, Stukenborg, Bartlett, and Wise, as plaintiffs, filed a second amended complaint signed by Lewis as counsel for the plaintiffs. The City answered the second amended complaint, again failing to list Bartlett as a plaintiff in the caption.

         On July 9, 2015, attorneys Laura Mitchell and Fred Hart entered their appearances as counsel for Lewis, Stukenborg, Bartlett, and Wise. Despite this entry of appearance, Lewis continued to file pleadings on his own behalf and as counsel for Stukenborg, Bartlett, and Wise, including a request for a continuance so that plaintiffs could petition for quiet title joining all necessary parties. No amendments were forthcoming.

         In October 2016, the City filed a motion to dismiss under Rule 41 of the Arkansas Rules of Civil Procedure for failure to prosecute. In response, the plaintiffs stated that the other landowners were not necessary parties to plaintiffs' claim that the regulations are invalid and claimed that Bartlett should be dismissed as a party since he had sold his home and no longer had standing to object to the ordinance.

         The court conducted a hearing on the motion to dismiss. At the hearing, Lewis indicated to the court that Bartlett had moved and that Wise was in the process of moving. The trial court denied the motion to dismiss for failure to prosecute in a February 28, 2017 order. However, the court's order did not dismiss Bartlett as a party, nor did it conclude that the ...


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