Anita G, LLC v. Centennial Bank

2019 Ark. App. 217, 575 S.W.3d 561
CourtCourt of Appeals of Arkansas
DecidedApril 17, 2019
DocketNo. CV-18-227
StatusPublished
Cited by5 cases

This text of 2019 Ark. App. 217 (Anita G, LLC v. Centennial Bank) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anita G, LLC v. Centennial Bank, 2019 Ark. App. 217, 575 S.W.3d 561 (Ark. Ct. App. 2019).

Opinion

V. The Preliminary-Injunction Order

A. The Implied-Dedication Claim

In evaluating the preliminary-injunction order, we begin by disposing of a brief argument made by Anita G. Anita G contends that our court should decline to consider whether Centennial Bank has shown a likelihood of success on the merits of its implied-dedication claim. Anita G raises this argument because it was a basis on which Centennial Bank sought relief in its initial complaint.

On this point, we agree with Anita G. The preliminary-injunction order was based solely on Centennial Bank's prescriptive-easement claim, and Centennial Bank concedes this. Accordingly, we will not delve into the merits of whether there has been an implied dedication of Dayton Avenue by the City of Jonesboro.

B. The Prescriptive-Easement Claim

Anita G challenges the preliminary-injunction order on several grounds related to whether Centennial Bank demonstrated irreparable harm and a likelihood of success on the merits on its prescriptive-easement claim.

1. Irreparable harm

Anita G claims the circuit court erred by finding that irreparable harm will result in the absence of an injunction. As a general premise, harm is considered irreparable if monetary damages cannot adequately compensate a party or if a wrong cannot be adequately redressed in a court of law. City of Jacksonville v. Smith , 2018 Ark. 87, 540 S.W.3d 661.

Generally, Anita G's argument is that the evidence demonstrated that mere inconvenience resulted from the closure of Dayton Avenue and that mere inconvenience is insufficient to support a finding of irreparable harm. We acknowledge that the testimony indicates that Dayton Avenue was the easiest, most convenient travel route for many witnesses but that it was not the only means by which to reach one's destination. Nevertheless, that is not the irreparable harm the circuit court identifies in its order.

In the injunction order, the circuit court specifically found that in the absence of an injunction there would be irreparable harm because Anita G

would be able to engage in uses of the disputed property which would realistically diminish or destroy the public's use of the roadway even if [Centennial Bank] ultimately prevailed in the suit. Such diminution or elimination of access could not be rectified by simply awarding monetary damages.

There is ample evidence to support the circuit court's findings. In fact, Prateek Gera testified that Anita G planned to build a 40,000-square-foot shopping center on the property and that, had the lawsuit not been filed, it would have started construction. If construction had begun, it would be difficult-if not impossible-to afford relief to Centennial Bank because monetary damages would not suffice under these facts. Thus, we hold that the circuit court did not abuse its discretion in concluding that Centennial Bank demonstrated *569that irreparable harm will result in the absence of an injunction.

2. Likelihood of success on the merits

Anita G's remaining arguments to reverse the preliminary-injunction order pertain to whether Centennial Bank demonstrated a likelihood of success on the merits of its complaint. The test for determining the likelihood of success is whether there is a reasonable probability of success in the litigation. Smith , 2018 Ark. 87, 540 S.W.3d 661.

Because our analysis focuses on whether Centennial Bank is likely to succeed on the merits of this action, we begin by identifying the elements of a successful prescriptive-easement claim. A prescriptive easement may be gained by one not in fee possession of the land by operation of law in a manner similar to adverse possession. Roberts v. Jackson, 2011 Ark. App. 335, 384 S.W.3d 28. One asserting an easement by prescription must show by a preponderance of the evidence that one's use has been adverse to the true owner and under a claim of right for the statutory period. Id. The statutory period of seven years for adverse possession applies to prescriptive easements. Id.

In seeking reversal based on a failure to demonstrate a likelihood of success on the merits, Anita G raises the issues of whether (1) there was open, notorious, and adverse use of Dayton Avenue; (2) Centennial Bank rebutted the presumption of permissive use associated with open, undeveloped land; (3) Centennial Bank proved continuous use for the requisite seven years; (4) the adverse consequences of the preliminary injunction overwhelm any benefit to it; and (5) laches bars the prescriptive-easement claim.

a. Open, notorious, and adverse use

The crux of Anita G's argument here is that any use of Dayton Avenue was permissive and therefore insufficient to demonstrate a likelihood of success on the merits of a prescriptive-easement claim. Here, we address two related points on appeal raised by Anita G, namely whether the circuit court erred by finding that there was open, notorious, and adverse use and whether Centennial Bank rebutted the presumption of permissive use that accompanies open, undeveloped land.

Whether use is adverse or permissive is a factual question. Roberts, supra. We acknowledge that use of unenclosed, undeveloped land by strangers is presumed permissive, but that presumption can be rebutted if hostility of conduct in the usage of the land is shown. See Merritt Mercantile Co. v. Nelms , 168 Ark. 46, 269 S.W. 563 (1925).

On these points, the circuit court's findings are particularly pertinent to our review. In the preliminary-injunction order, the circuit court specifically found that "members of the public never sought nor received explicit permission to use the Disputed Dayton Avenue." In determining that Centennial Bank had demonstrated adverse, rather than permissive, use the circuit court relied heavily on Gazaway v. Pugh

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Cite This Page — Counsel Stack

Bluebook (online)
2019 Ark. App. 217, 575 S.W.3d 561, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anita-g-llc-v-centennial-bank-arkctapp-2019.