Foster v. Crawford

2014 Ark. App. 251

• Court: Court of Appeals of Arkansas
• Decided: April 23, 2014
• Docket: CV-13-1120
• Status: Published

Opinion

Cite as 2014 Ark. App. 251

ARKANSAS COURT OF APPEALS DIVISION III No. CV-13-1120

Opinion Delivered April 23, 2014

THOMAS FOSTER, JR. APPEAL FROM THE APPELLANT INDEPENDENCE COUNTY CIRCUIT COURT V. [NO. E-93-351-1]

HONORABLE TIM WEAVER, KATHERINE CRAWFORD and RUBY JUDGE ANN CRAWFORD APPELLEES APPEAL DISMISSED

KENNETH S. HIXSON, Judge

This case involves a property dispute between appellant Thomas Foster, Jr., and

appellees Katherine Crawford and Ruby Ann Crawford. The property at issue is located in

Independence County, and the litigation was initiated by Katherine Crawford. The trial

court entered a “default and summary judgment” finding that the appellees owned the

property and quieting title in the appellees. Mr. Foster filed a motion to set aside the default

judgment, and the trial court entered an order denying the motion. Mr. Foster now appeals,

arguing that the default judgment should be reversed because the case had become stale and

the trial court erred in failing to dismiss the case on its own initiative pursuant to Rule 41(b)

of the Arkansas Rules of Civil Procedure. We must dismiss the appeal for lack of a final

appealable order. Cite as 2014 Ark. App. 251

On July 15, 1993, Katherine Crawford filed a petition against Mr. Foster, alleging that

she was the owner of certain property in Independence County. Katherine alleged that

Mr. Foster had trespassed on her property and had caused damage by cutting timber and other

activities. Katherine requested that Mr. Foster be enjoined from trespassing on her lands, and

she also prayed for damages.

Mr. Foster filed an answer to Katherine’s petition on July 23, 1993, wherein he

admitted that Katherine owned the property but denied that he had trespassed or caused any

damage. On May 4, 1994, Mr. Foster filed an amended answer, seeking to quiet title to a

portion of the subject property on grounds of adverse possession. After that, there was no

activity in the case for more than seventeen years.

On September 7, 2012, Katherine Crawford and Ruby Ann Crawford, as plaintiffs,

filed an amended petition. In the amended petition, the Crawfords adopted and incorporated

each of the allegations made in the original petition. The amended petition further asserted

that the Crawfords were owners of additional lands not described in the original petition, and

that Mr. Foster had been trespassing on those lands. Mr. Foster did not file an answer to the

amended petition.

On December 27, 2012, the Crawfords propounded requests for admission to

Mr. Foster’s counsel. Among other things, the Crawfords requested that Mr. Foster admit

that all of the property at issue was owned by the Crawfords, that Mr. Foster had not been

in exclusive possession of the property for seven years, and that he had not paid real-estate

taxes on the property. On March 14, 2013, the Crawfords filed a motion to deem their

2 Cite as 2014 Ark. App. 251

requests for admission admitted because Mr. Foster had failed to timely answer their requests.

On April 12, 2013, the trial court entered an order that deemed the Crawfords’ requests for

admission admitted.

The Crawfords subsequently filed a motion for summary judgment, alleging that all

material facts had been admitted and that the trial court should enter a judgment quieting title

to the property in them. The Crawfords also filed a motion for default judgment on the

grounds that Mr. Foster had failed to file an answer to their amended petition.

On July 30, 2013, the trial court entered a “default and summary judgment” in favor

of the Crawfords. In the judgment, the trial court found that the Crawfords owned the

property at issue, and that Mr. Foster had no ownership interest. The trial court quieted title

to the property in the Crawfords. However, the trial court did not rule on the issue of

damages.

Mr. Foster timely filed a motion to set aside the default judgment, arguing, among

other things, that the case should have been involuntarily dismissed by the trial court long ago

pursuant to Rule 41(b), which provides:

(b) Involuntary dismissal. In any case in which there has been failure of the plaintiff to comply with these rules or any order of court or in which there has been no action shown on the record for the past 12 months, the court shall cause notice to be mailed to the attorneys of record, and to any party not represented by an attorney, that the case will be dismissed for want of prosecution unless on a stated day application is made, upon a showing of good cause, to continue the case on the court’s docket. A dismissal under this subdivision is without prejudice to a future action by the plaintiff unless the action has been previously dismissed, whether voluntarily or involuntarily, in which event such dismissal operates as an adjudication on the merits.

3 Cite as 2014 Ark. App. 251

After a hearing, the trial court entered an order denying appellant’s motion to set aside, and

Mr. Foster timely appealed.

The question of whether an order is final and appealable is jurisdictional, and we are

obligated to consider the issue on our own even if the parties do not raise it. Kendall v.

Golden, 2014 Ark. App. 172. Pursuant to Arkansas Rule of Appellate Procedure–Civil

2(a)(1), a party may appeal from a final judgment or final decree of the circuit court. An order

is not final when it adjudicates fewer than all of the claims or the rights and liabilities of fewer

than all of the parties. Farrell v. Farrell, 359 Ark. 1, 193 S.W.3d 734 (2004). As a general rule,

a judgment or order is not final and appealable if the issue of damages remains to be decided.

Israel v. Oskey, 92 Ark. App. 192, 212 S.W.3d 45 (2005). In Sevenprop Association v. Harrison,

295 Ark. 35, 746 S.W.2d 51 (1988), our supreme court held that, in an appeal from a default

judgment on liability, where there was failure to file a timely answer and the issue of damages

was not yet resolved, the appeal had to be dismissed. The requirement that an order must be

final and appealable is observed to avoid piecemeal litigation. Kendall, supra.

In this case, the “default and summary judgment” entered by the trial court quieted

title to the property in the Crawfords, but it did not resolve Katherine Crawford’s claim for

damages against Mr. Foster. Because the order in this case did not adjudicate all the claims

or rights of all the parties, we must dismiss without prejudice for lack of a final order.

Appeal dismissed. GLADWIN, C.J., and GLOVER, J., agree. Quincey M. Ross, Legal Aid of Arkansas, Inc., for appellant. Murphy, Thompson, Arnold, Skinner & Castleberry, by: Blair Arnold, for appellee.