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Anderson-Tully Co. v. Vaden

Court of Appeals of Arkansas, Division II

October 17, 2018



          Bridges, Young, Matthews & Drake PLC, by: Joseph A. Strode, for appellant.

          Berry Law Firm, P.A., by: Russell D. Berry and Michelle L. Jacobs, for appellees.

          RITA W. GRUBER, Chief Judge.

         Anderson-Tully Company (ATCO) appeals from two orders of the Desha County Circuit Court entered on June 23 and July 13, 2017.[1] The orders from which ATCO appeals resulted from appellees Patricia Vaden and Michael Moncrief seeking a writ of assistance for them to be placed in possession of certain real property they purchased years earlier at a partition sale. ATCO argues six points for reversal. However, we cannot reach the merits of this appeal because the orders appealed from lack finality. Accordingly, we dismiss the appeal.

         This case is one in a series of litigation dealing with ownership of land located along the old bed of the Arkansas River between Arkansas County and Desha County. See Dye v. Anderson-Tully Co., 2011 Ark.App. 503, 385 S.W.3d. 342; Scales v. Vaden, 2010 Ark.App. 418, 376 S.W.3d 471. In Scales, we affirmed the circuit court's April 23, 2009 order, which adopted a survey by Jim Cannatella and authorized appellees to identify their boundary lines on the land specified in the order. We held that the circuit court did not err in denying a Rule 60 motion to modify the legal description because the orders in question were entered in 2005, and the final hearing was in 2009, long past the ninety-day limitation. ATCO was not a party to Scales, as its motion to intervene had been denied.

         We handed down our opinion in Scales on May 12, 2010. Shortly thereafter, appellees filed an application for writ of assistance to place them in possession of the property. They asserted that Billy Scales and Sammy Scales, two of the defendants in Scales, had denied them access to their property. After the case languished for several years, appellees filed a second application for writ of assistance and motion for contempt in May 2013. This application alleged that Billy and Sammy acted in concert with ATCO to prevent appellees from identifying and taking possession of lands confirmed in appellees and affirmed on appeal. It was further alleged that ATCO should be made a party to this action and that ATCO, Billy, and Sammy be held in contempt.

         After an August 2013 hearing was adjourned without a resolution, another hearing was held on May 11, 2015. The court announced that the sole issue being addressed by the court at that hearing was whether to direct a surveyor to set monuments to locate the boundaries found by Jim Cannatella in his 2009 survey. The court decided that it wanted Cannatella to locate the survey points he had found in his 2009 survey. The court also directed the issuance of a writ of assistance so Cannatella would have access to the property. Inexplicably, an order was not entered until June 23, 2017.[2] At that time, the court entered an order memorializing its bench ruling from the May 2015 hearing.

         On July 7, 2017, ATCO filed a motion to vacate or for a new trial pursuant to Rules 59 and 60 of the Arkansas Rules of Civil Procedure alleging that the circuit court's order of June 23, 2017, was void and that the court lacked jurisdiction over both ATCO and its property. ATCO further argued that the court's findings were erroneous and against the preponderance of the evidence.

         The circuit court denied ATCO's motion to vacate or for a new trial by order entered on July 13, 2017. The court made a comment that "[c]ertain parties simply cannot stop rehashing this age old dispute between members of the same family over some Desha County land." The court also stated that it "believes that it has decided all of the issues and declines any invitation to revisit this case." This appeal followed.

         Although ATCO argues six points on appeal, including one that argues the orders entered by the circuit court are final and appealable, we hold that the orders lack finality for multiple reasons.

         ATCO argues that the orders are final because the court effectively determined the rights of the parties to the disputed property by ruling that appellees were entitled to possession of property in Desha County. ATCO asserts that the court's language that it believed that it had decided all the issues indicates that the orders are final. ATCO further argues that the orders are appealable because the July 13 order denied its motion for a new trial. Appellees argue that the orders are not final because the circuit court has yet to address the motion for contempt against ATCO. They further argue that the court's June 23 order contemplates further hearings after the boundary monuments are set. We hold that the orders on appeal lack finality.

         We have held that when contempt issues remain pending before the circuit court, the circuit court's order is not final and appealable. See John v. Bolinder, 2016 Ark.App. 357, 498 S.W.3d 307; Burton v. Templeman, 2015 Ark.App. 101. This is because the issue is not merely a collateral issue, such as attorney's fees. John, supra. ATCO argues, however, that the court's declaration that it had decided all the issues and would not revisit the matter was a final disposition of the contempt action. We disagree. The circuit court stated that counsel for appellees was not yet asking for contempt sanctions at the time of the May 2015 hearing. Moreover, the circuit court acknowledged that appellees were setting the foundation for a future hearing on contempt after the boundary lines were marked. An order that contemplates further action by a party or the court is not a final, appealable order. Blackman v. Glidewell, 2011 Ark. 23.

         Additionally, the fact that Arkansas Rule of Appellate Procedure-Civil 2(a)(3) authorizes an appeal from an order granting or refusing a new trial does not mean that an appellant such as ATCO can appeal from an order that otherwise lacks finality. See General Motors Acceptance Corp. v. Eubanks, 318 Ark. 640, 887 S.W.2d 292 (1994); Rusin v. Midwest Enamelers, Inc., 21 Ark.App. 226, 731 S.W.2d 226 (1987). In Eubanks, the supreme court held that an order denying a motion for new trial was appealable only if the trial court has ruled on all claims. In Rusin, we said that Rule 2(a)(3) "can have no application to cases involving multiple issues or claims in which some, but not all, are decided." 21 Ark.App. at ...

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