Hausman v. Throesch

289 S.W.3d 493, 104 Ark. App. 113, 2008 Ark. App. LEXIS 855

• Court: Court of Appeals of Arkansas
• Decided: December 10, 2008
• Docket: CA 08-478
• Status: Published

Opinions

D.P. Marshall, Judge.

Does a servient landowner ever have the right to change, without the easement holder’s permission, the location of an established easement if the landowner provides an alternate route? We cannot answer that interesting legal question for want of appellate jurisdiction.

The Hausmans plowed up a road that ran through the middle of their field. The Throesches had an implied easement to use that road to get to their adjoining field. The Hausmans moved the road to the edge of their field so that they could level and better utilize their land for growing rice. The circuit court found that the Hausmans had no legal right to either move the easement or insist that the Throesches use an alternate route. The court entered a final order resolving all the issues. It directed the Hausmans to rebuild the road in its original location. The Hausmans filed a post-trial motion under Rule of Civil Procedure 52. They asked the court to amend its findings, or to make additional findings, about the specifications for rebuilding the original road. The court held a hearing on the motion. Ruling from the bench, the court modified its original order slightly. The court later entered an amended order, which embodied its original order and its oral ruling making the change in specifications. The Hausmans appeal the amended order.

“Timely filing of a notice of appeal is jurisdictional, and we are required to raise the issue of subject-matter jurisdiction on our own motion.” Stacks v. Marks, 354 Ark. 594, 599, 127 S.W.3d 483, 485 (2003). The time-line of filings and events illuminates the jurisdictional issue:

14 September 2007: Court entered original order¹

19 September 2007: Hausmans filed Rule 52 motion

29 October 2007: Court held hearing on Rule 52 motion and made an oral ruling

4 January 2008: Court entered amended order

22 January 2008: Hausmans filed notice of appeal

The Hausmans’ Rule of Civil Procedure 52 motion for amended or additional findings was timely. Ark. R. App. P.-Civ. 4(b)(1). It therefore tolled their time to file a notice of appeal from the original final order. Ibid. But the circuit court neither granted nor denied the motion within thirty days. Thus the motion was deemed denied by operation of law on 19 October 2007. Ibid. The circuit court lost jurisdiction on that date because it had entered no decision of record on the motion within the thirty-day period. Ark. State Highway Commission v. Ayres, 311 Ark. 212, 214, 842 S.W.2d 853, 854 (1992). The Hausmans then had thirty days to file their notice of appeal. Ark. R. App. P.-Civ. 4(b)(1). The Haus-mans did not file their notice, however, until 22 January 2008 — well after their thirty-day deadline had passed. We therefore do not have jurisdiction and must dismiss this appeal. Seay v. C.A.R. Transportation Brokerage Co., 366 Ark. 527, 530-31, 237 S.W.3d 48, 51 (2006).

Even if we construe the Hausmans’ motion as arising under Rule of Civil Procedure 60(a), thus expanding the circuit court’s window to amend its final order to ninety days, we still do not have jurisdiction. The court held its late October 2007 hearing on the Hausmans’ motion within ninety days of entering the original order. The court ruled from the bench at the end of that hearing. But “[pjursuant to Administrative Order 2(b)(2), an oral order announced from the bench does not become effective until reduced-to writing and filed.” Community Bank of North Ark. v. Tri-State Propane, 89 Ark. App. 272, 279, 203 S.W.3d 124, 128 (2005). The court did not reduce its bench ruling to writing, and enter its amended order, within the ninety-day period of jurisdiction provided by Rule 60(a). The Hausmans’ appeal, therefore, cannot be salvaged by looking to Rule 60 and the amended order.

Dismissed.

Robbins, Bird, Glover, and Heffley, JJ., agree. Baker, J., dissents.

1 The signature page of this order is missing from the addendum and the record. The parties assume and premise their arguments, however, on the circuit court’s entry of a signed order on 14 September 2007.