FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, WESTERN DISTRICT
[NO. 16JCV-17-439] HONORABLE RICHARD LUSBY, JUDGE.
S. Tschiemer; and Collins, Collins & Ray, P.A., by: Brian
W. Ray, for appellant.
Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.,
by: John Keeling Baker and Nathan A. Read, for appellee.
W. GRUBER, Chief Judge.
an interlocutory appeal of an order granting a preliminary
injunction. The focus of this litigation is a piece of
property commonly referred to as Dayton Avenue, which is
owned by appellant Anita G, LLC (Anita G). After many years
of use of Dayton Avenue by members of the public, which
included appellee Centennial Bank's employees and
customers, Anita G barricaded Dayton Avenue, terminating its
public use. Centennial Bank sued Anita G and sought a
preliminary injunction to require Anita G to remove its
barricades and reopen Dayton Avenue for public use. The
circuit court granted the preliminary injunction, and Anita G
appealed. We affirm.
Avenue is located in a busy commercial area in Jonesboro,
Arkansas. Despite its name, Dayton Avenue is not a public
road, but it has been used by members of the public,
including employees and customers of Centennial Bank, for
currently owns the property on which Dayton Avenue sits,
having purchased it in March 2016. Before Anita G acquired
the property, it was owned by the Craighead County Fair
Association (CCFA). It is undisputed that during the years
that the CCFA owned the property, the public regularly drove
on Dayton Avenue.
Anita G purchased the property, it immediately erected
barricades across Dayton Avenue, effectively ending its
public use. Anita G intends to build a commercial development
on Dayton Avenue and claims that it is investing millions of
dollars in the project. Significantly, Anita G has not begun
construction on the property nor has it sought a building
permit to commence construction. Moreover, Anita G has not
entered into any leases for the property nor does it have any
contracts for the sale of any portion of the property.
However, Anita G has incurred expenses relating to the hiring
of civil engineers and architects for potential development.
2017, fifteen months after Anita G's purchase, Centennial
Bank sued Anita G, seeking declaratory and injunctive relief.
Specifically, Centennial Bank sought to have the barricades
across Dayton Avenue removed and for it to be reopened for
public travel based on the theories of implied dedication and
the establishment of a prescriptive easement.
Bank also petitioned the circuit court for a preliminary
injunction pursuant to Arkansas Rule of Civil Procedure 65 to
prevent Anita G from taking any action that would impair the
public's use of the barricaded section of Dayton Avenue.
Arkansas Rule of Civil Procedure 65 requires a circuit court
to affirmatively determine that irreparable harm will result
in the absence of an injunction and that the moving party has
demonstrated a likelihood of success on the merits. See
Baptist Health v. Murphy, 365 Ark. 115, 226 S.W.3d 800
motion for preliminary injunction, Centennial Bank alleged
that its customers and employees as well as the general
public had used Dayton Avenue as a public street for more
than seven continuous years. Centennial Bank further claimed
that Anita G intended to construct new structures on Dayton
Avenue. Centennial Bank urged the circuit court to order
Anita G to remove the barricades and to enjoin it from
erecting further barricades or otherwise interfering with the
public's use of Dayton Avenue.
responded and objected to the motion for preliminary
injunction. It argued that Centennial Bank was not entitled
to injunctive relief but admitted that it intended to
construct new structures on Dayton Avenue.
Anita G answered Centennial Bank's initial complaint. Its
answer is pertinent because, in it, Anita G raised certain
affirmative defenses that are relevant to this appeal,
including laches and lack of standing.
circuit court held a hearing on the motion for preliminary
injunction in January 2018. At the hearing, the circuit court
heard testimony from a multitude of witnesses, including bank
employees and customers, CCFA representatives, a member of
Anita G, city employees, and other members of the general
evidence regarding the use of Dayton Avenue was often
cumulative with twelve affiants and eighteen witnesses
testifying in person. The testimony generally showed that
Dayton Avenue had been heavily traveled for well over seven
years-evidence indicated use as far back as the 1970s-and
that travelers neither sought nor received permission to use
Dayton Avenue. Also important was testimony from Jonesboro
city engineer Craig Light who discussed a traffic study that
indicated an average of 1869 cars used the disputed stretch
of Dayton Avenue every day.
also indicated that the CCFA knew Dayton Avenue was being
used by members of the public but never specifically granted
anyone permission to use it. Michael Cureton, a former board
member of the CCFA, testified that the CCFA never opened
Dayton Avenue to the public or granted anyone permission to
use it despite the board of directors knowing that the public
was using it. Cureton further explained that the CCFA paved
Dayton Avenue in the late 2000s so that there would be less
maintenance on it. During the time the CCFA owned the
property, Dayton Avenue was continuously open to the public
for all but a few hours of the day during the six days of the
annual Craighead County Fair.
Gera, a representative and member of Anita G, presented
testimony regarding Anita G's plans for the property. He
explained that it intended to develop a 40, 000-square-foot
shopping center on it. He further offered that had this
lawsuit not been filed, Anita G would have already begun
February 2018, the circuit court entered an order for
preliminary injunction. It made its findings based only on
the theory that a prescriptive easement had been established.
Notably, it did not base its decision on the theory of
implied dedication, which Centennial Bank also advanced as a
theory under which it was entitled to relief in its initial
complaint. The preliminary-injunction order included findings
that Centennial Bank demonstrated a likelihood of success on
the merits. The court highlighted witnesses' testimony
concerning significant use of Dayton Avenue over a period
longer than seven years and that the evidence indicated that
no one ever sought or received explicit permission to use it.
Moreover, the circuit court found that Centennial Bank had
demonstrated irreparable harm in the event a preliminary
injunction was not granted. Specifically, the circuit court
found that without a preliminary injunction, Anita G could
"diminish or destroy the public's use of the roadway
even if [Centennial Bank] ultimately prevailed."
the order granting the preliminary injunction was entered,
Anita G filed a motion to stay in which it argued that
Centennial Bank lacked standing and that it had shown no harm
in keeping Dayton Avenue closed beyond a mild inconvenience.
Anita G also filed a motion to alter or amend its
preliminary-injunction order. In that motion, Anita G again
argued that Centennial Bank lacked standing and had failed to
demonstrate its entitlement to a preliminary injunction. The
circuit court denied both motions.
timely appealed from the order issuing the preliminary
injunction as well as the order denying its motion to stay
and its motion to alter or amend. As an interlocutory appeal,
our jurisdiction is pursuant to Arkansas Rule of Appellate