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Date: 10-20-2018
Case Style:
ANDERSON-TULLY COMPANY V. PATRICIA SCALES VADEN AND JAMES MICHAEL MONCRIEF
Case Number: CV-17-843
Judge: RITA W. GRUBER
Court: ARKANSAS COURT OF APPEALS
Plaintiff's Attorney: Joseph A. Strode
Defendant's Attorney: Russell D. Berry and Michelle L. Jacobs
Description:
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.
1We previously ordered rebriefing of this case. Anderson-Tully Co. v. Vaden, 2018 Ark. App. 240. The defects noted in that opinion have now been corrected.
2
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
3
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.
2In fact, nothing happened for more than two years. The case was dismissed for lack of prosecution under Ark. R. Civ. P. 41(b) in June 2017. The court set aside the dismissal order on June 23, 2017.
4
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.
5
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 228, 731 S.W.2d at 227. Here, the circuit court had not decided all the issues because
the contempt issues were still outstanding. Therefore, Rule 2(a)(3) can have no application.
Id.
We also point out that there are other issues that prevent finality. For example,
appellees moved to make ATCO a party in their second application for writ of assistance.
However, the circuit court never expressly ruled on this request. This court cannot
presume a ruling from a circuit court’s silence, and we will not review a matter on which
the circuit court has not ruled. TEMCO Constr., LLC v. Gann, 2013 Ark. 202, 427 S.W.3d
651.
Another example is that ATCO’s motion for summary judgment, filed June 2,
2015, was never addressed by the circuit court. That motion addressed the merits of the
motion for contempt and the application for writ of assistance. The supporting brief makes
the same arguments that ATCO raises on appeal. However, the circuit court did not
6
address the motion. Appellees responded and filed a motion to strike ATCO’s motion for
summary judgment. The motion to strike was likewise not ruled on.
Outcome: In summary, the orders on appeal contemplate further action by the parties and the circuit court such that there is no final, appealable order before us. Consequently, we must dismiss the appeal without prejudice. Morse v. Austin, 2017 Ark. App. 257, 520 S.W.3d 314.
Appeal dismissed without prejudice.
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Defendant's Experts:
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