Barton v. Brockington

2016 Ark. App. 138, 487 S.W.3d 820, 2016 Ark. App. LEXIS 150
CourtCourt of Appeals of Arkansas
DecidedMarch 2, 2016
DocketCV-15-200
StatusPublished
Cited by1 cases

This text of 2016 Ark. App. 138 (Barton v. Brockington) 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
Barton v. Brockington, 2016 Ark. App. 138, 487 S.W.3d 820, 2016 Ark. App. LEXIS 150 (Ark. Ct. App. 2016).

Opinion

BRANDON J. HARRISON, Judge

11 Sharon K. Barton, Robert Franklin Bryant, Gallie Thomas Bryant, and Paulette Frances Bryant (collectively the Bryants) filed a complaint for trespass and ejectment against Bobby and Sheila Broc-kinton in Faulkner County Circuit Court in August -2012. The Bryants and the Brockintons are adjacent landowners.

The Bryants amended their complaint in October 2012, alleging that the Brockin-tons had destroyed a fence, trespassed, and constructed three storage units on their land. The Bryants asked for a total of $40,000 in damages and for the court to eject the Brockintons from their property. The Brockintons responded to the Bryants’• complaint, denied all allegations of wrongdoing, and raised fourteen affirmative defenses."

lain April 2013, the Brockintons moved for summary judgment. The circuit court held a hearing on the summary-judgment motion in July 2013 and orally denied it. Two months later, the Brockintons filed a counterclaim, alleging that the Bryants’ lawsuit “caused a cloud” on their title, making them unable to build duplexes on the property, and that they were entitled to $1,200 in monthly damages. The Bryants responded and argued, among other things, that the Brockintons failed to state sufficient facts upon which relief could be granted, and their counterclaim should be dismissed pursuant to Arkansas Rule of Civil Procedure 12(b)(6).'

The case was tried in April 2014 over the course of two days. The parties put forth competing surveys and testimony about the proper boundary line between the Brockintons’ and Bryants’ properties. The court entered a written order on 4 June 2014, stating,

1. This is the Court of proper jurisdiction and venue.
2. This case involved the location of a boundary between the property of the Plaintiffs and Defendants.
3. The Court finds the survey of Defendant’s surveyor Tim Tyler to be true and correct.
4. The Plaintiffs failed in their burden to establish by a preponderance of the evidence that the boundary line they claimed between the parties’ property was the true boundary.
5.- The Plaintiffs’ petition is denied and dismissed.

On 25 September 2014, the court entered an “amended” order, which was exactly the same as the June order except that it had a Rule 54(b) certificate attached. The Bryants filed a notice of appeal from the June 4 and September 25 orders, on 15 October 2014.

l.qBecause the orders the Bryants have appealed are neither final nor certified properly under Rule 54(b),, we dismiss their appeal without prejudice for lack of a final, appealable order.

The question of whether an order is final and- subject to appeal is a jurisdictional question that this court will raise on its own. Kowalski v. Rose Drugs of Dardanelle, Inc., 2009 Ark. 524, 357 S.W.3d 432. The requirement of a final judgment is the cornerstone of appellate jurisdiction; this court reviews only final orders. Ark. R. App. P.-Civ. 2(a). Bayird v. Floyd, 2009 Ark. 455, 344 S.W.3d 80. For an order to be final and appealable, it must dismiss the parties from the court, discharge, them from the action, or conclude their rights to the subject matter in controversy. Id.

Arkansas Rule of Civil Procedure 54(b) is an exception to this general rule and may apply when “one or more but fewer than all of the claims” is adjudicated. Ark. R. Civ. P. 54(b) (2015). Pursuant to Rule 54(b) a circuit court may direct “the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination, supported by specific factual findings, that there is no just ’reason for delay and upon an express direction for the entry of judgment.” When determining that there is “no just reason for delay,” the circuit court must weigh “the overall policy against piecemeal appeals against whatever exigencies' the case at hand may present.”' Murry v. State Farm Mut. Auto. Ins. Co., 291 Ark. 445, 447, 725 S.W.2d 571, 572 (1987) (quoting" Federal Practice and Procedure § 2659 (1983)).

Facts supporting a Rule 54(b) certification must be stated in the circuit court’s order; that the record may contain facts supporting the circuit court’s Rule 54(b) certificate is not Insufficient. See Bayird,- 2009 Ark. 455, at 4, 344 S.W.3d at 84 (“[Mjerely tracking the language of Rule 54(b) will not suffice.”). A circuit court’s Rule 54(b) findings and certifications are reviewable for an abuse of discretion. . Id. The role of the appellate court is “not to reweigh the equities or reassess the facts but to make sure that the conclusions derived from those weighings and assessments are judicially sound and supported by the record.” Id. Our supreme court has also stressed that the discretionary power of the circuit court to direct finality should be “exercised infrequently and only in harsh cases.” Robinson v. Villines, 2012 Ark. 211, at 6, 2012 WL 1739140. The time for filing a notice of appeal begins to run upon entry of a judgment that includes-a proper Rule 54(b) certificate. See Ark. R. Civ. P. 54(b)(3); see also Lee v. Martindale, 363 Ark. 249, 213 S.W.3d 1 (2005).

The Bryants maintain that the certification is proper under Arkansas Rule of ' Civil Procedure 54(b), so they may appeal now. But the Brockintons ask us to dismiss the Bryants’' appeal because (1) we lack “subject matter jurisdiction” due to an untimely notice of appeal, (2) the Rule 54(b) certificate is deficient, and (3) the appealed orders do not describe the boundary line between" the parties with enough specificity.

On the first point, the Brockintons argue that the thirty-day window for filing a notice of appeal “should have started after [the June 4] non-final order.” Their rationale is that “the closing of the case [by entry of • the June 2014 judgment] should operate as a clear directive to the parties that they should make the necessary preparations for appeal.” We reject this argument.

The Bryants did not have to appeal within thirty days of the June 2014 order. Pursuant to Rule 41(a)(1) of the Arkansas Rules of Civil Procedure, a claim may be | ¿dismissed without prejudice to a future action by the plaintiff before final submission of the case; but “it is effective only upon entry of a court order dismissing the action.” Ark. R. Civ. P. 41(a)(1) (2015). Rule 41 also applies to the dismissal of any counterclaim, cross-claim, or third-party claim. Ark., R. Civ. P. 41(c). The Rule 54(b) certificate in this case, states that the Brockintons “dismissed their counterclaim without prejudice”—but only a written order by the circuit court is sufficient to dismiss a claim. M; see also Bevans v. Deutsche Bank Nat’l Tr. Co., 373 Ark. 105, 281 S.W.3d 740 (2008). Because there is no written order dismissing the counterclaim in the record, the June order was not final, absent a Rule 54(b) certificate.

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Bluebook (online)
2016 Ark. App. 138, 487 S.W.3d 820, 2016 Ark. App. LEXIS 150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barton-v-brockington-arkctapp-2016.