FROM THE STONE COUNTY CIRCUIT COURT [NO. 69CV-14-76]
HONORABLE TIM WEAVER, JUDGE
Law Firm, P.L.L.C., by: Scott A. Scholl, for appellants.
Arnold and Robert S. Tschiemer, for appellees.
RAYMOND R. ABRAMSON, Judge
Roberts and Vicki Steen appeal from the Stone County Circuit
Court's final judgment entered after a jury found in
favor of Rita Riege and the Rita May Riege Revocable Trust
(the Trust). On appeal, Roberts argues that (1) the circuit
court erred by entering a default judgment against him on
Riege's counterclaims; (2) there was insufficient
evidence to support the jury's damages award; and (3)
there was insufficient evidence to support the Trust's
adverse-possession and boundary-by-acquiescence claims. We
case involves a property dispute between Roberts and Riege
over a narrow strip of land in Stone County. Specifically,
Roberts owns property adjacent to the Trust's property.
Riege is the trustee and lives on the Trust's property. A
private road, Raccoon Lane, runs on Roberts's property.
The strip of land is located between Raccoon Lane and the
November 5, 2014, Roberts filed a complaint against Riege
alleging that he owns the strip of land along Raccoon Lane
and that beginning in July 2006, Riege had repeatedly and
unlawfully entered the land and used Raccoon Lane to access
her home. He asserted a claim for the loss of the quiet
enjoyment and exclusive use of his property. In the
alternative, he asked the court to restrain Riege from
trespassing on his property. On November 12, 2014, Roberts
amended his complaint to assert claims for trespass and
battery, as well as civil liability pursuant to Arkansas Code
Annotated section 16-118-107 (Repl. 2016) for second-degree
December 4, 2014, Riege answered and asserted eight
counterclaims against Roberts: two claims for civil liability
pursuant to Arkansas Code Annotated section 16-118-107 for
aggravated assault with a deadly weapon; civil liability
under Arkansas Code Annotated section 16-118-107 for
second-degree battery; two claims for civil assault; civil
battery; intrusion on seclusion; and outrage.
December 4, 2014, the Trust moved to intervene alleging that
the Trust owned the strip of land bordering Raccoon Lane and
that Roberts had trespassed on the Trust's property. In
the alternative, the Trust filed a petition for quiet title
of the strip of land based on adverse possession and boundary
by acquiescence and a prescriptive easement to Raccoon Lane.
January 22, 2015, Roberts replied to Riege's
counterclaims. On February 2, 2015, Riege moved to strike
Roberts's answer and for a default judgment on her
counterclaims for failure to file a timely answer. On
February 3, 2015, Roberts filed a motion for enlargement of
time to respond to Riege's counterclaims. He conceded
that he filed a belated reply to Riege's counterclaims
but asserted that the belated reply was "attributable to
the mistake, inadvertence, and excusable neglect" of his
attorney. Specifically, he stated that his attorney had
prepared a reply to Riege's counterclaims on or around
December 14, 2014, but that the reply had not been filed with
the circuit clerk. He further asserted that an enlargement of
time would not prejudice Riege because the parties had not
engaged in discovery, Riege's counterclaims were
substantially similar to Roberts's claims, and she could
not have been surprised by his reply.
April 27, 2015, the circuit court entered an order granting
Riege's motion to strike Roberts's answer and for a
default judgment and denying Roberts's motion for
enlargement of time. The court ordered that a jury shall
determine Riege's damages. The court also granted the
Trust's motion to intervene.
September 22, 2016, the court held a jury trial on
Roberts's claims, Riege's damages for her
counterclaims, and the Trust's claims. The jury awarded
Riege $2, 000 for past and future mental anguish; $2, 000 in
punitive damages for her intrusion-on-seclusion claim; $5,
000 for past and future mental anguish; and $10, 000 in
punitive damages for her outrage claim. The jury awarded
the Trust $5, 000 in actual damages and $10, 000 in punitive
damages for its trespass claim, and the jury also found in
favor of the Trust on its adverse-possession and
boundary-by-acquiescence claims. The jury found against
Roberts on his trespass and battery claims. The circuit court
entered a final order and judgment on October 25, 2016, and
an amended final order and judgment on October 24, 2017.
Roberts appealed the judgment to this court.
appeal, Roberts first argues that the circuit court erred in
granting Riege's motion for a default judgment because
Riege's counterclaims failed to state sufficient facts
upon which relief can be granted. However, Roberts did not
make this argument to the circuit court in his motion for
enlargement of time. Rather, he argued that the court should
not enter a default judgment because his untimely answer was
attributable to the mistake, inadvertence, and excusable
neglect of his attorney and because Riege was not prejudiced.
It is well settled that we will not consider an issue raised
for the first time on appeal. Morgan v. Century 21 Perry
Real Estate, 78 Ark.App. 180, 79 S.W.3d 878 (2002). In
Morgan, this court held that appellant's claim
of fraud in obtaining service of process could not be
considered on appeal because he failed to allege the argument
as a basis for his motion to set aside a default judgment.
Id. Accordingly, in this case, because Roberts did
not allege his failure-to-state-a-claim argument to the
circuit court, it is not preserved for our review.
next argues that the jury's actual, mental-anguish, and
punitive damages awards for Riege's
intrusion-on-seclusion and outrage claims and for the
Trust's trespass claim were not supported by the
evidence. However, Roberts is procedurally barred from
challenging the sufficiency of the evidence of both
Riege's and the Trust's damages because he failed to
move for a directed verdict at the jury trial. Arkansas Rule
of Civil Procedure 50(e) requires that "in a jury trial,
a party who does not have the burden of proof on a claim or
defense must move for a directed verdict based on
insufficient evidence at the conclusion of all the evidence
to preserve a challenge to the sufficiency of the evidence
for appellate review." This court has held that
an appellant is procedurally barred from challenging the
sufficiency of a punitive-damages award when it failed to
move for a directed verdict and permitted the jury to be
instructed on punitive damages without objection.
Superior Fed. Bank v. Mackey, 84 ...