FROM THE DESHA COUNTY CIRCUIT COURT, SOUTHERN DISTRICT [NO.
21ACV-03-31] HONORABLE ROBERT BYNUM GIBSON, JR., JUDGE APPEAL
DISMISSED WITHOUT PREJUDICE
Bridges, Young, Matthews & Drake PLC, by: Joseph A.
Strode, for appellant.
Law Firm, P.A., by: Russell D. Berry and Michelle L. Jacobs,
W. GRUBER, Chief Judge.
Company (ATCO) appeals from two orders of the Desha County
Circuit Court entered on June 23 and July 13,
2017. 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.
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.
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.
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. At that time, the
court entered an order memorializing its bench ruling from
the May 2015 hearing.
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.
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.
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
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.
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.
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 ...