Mikel v. Hubbard

876 S.W.2d 558, 317 Ark. 125, 1994 Ark. LEXIS 321
CourtSupreme Court of Arkansas
DecidedMay 23, 1994
Docket93-755
StatusPublished
Cited by25 cases

This text of 876 S.W.2d 558 (Mikel v. Hubbard) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mikel v. Hubbard, 876 S.W.2d 558, 317 Ark. 125, 1994 Ark. LEXIS 321 (Ark. 1994).

Opinion

Robert H. Dudley, Justice.

Plaintiff Doris Mikel alleged defendant Hubbard Marine wrongfully occupied her land on the east side of the Poteau River. The jury returned a defendant’s verdict, and a judgment was accordingly entered. We affirm the judgment.

The interesting facts of this case are as follows. In 1820, 1825, and 1830, Congress ratified the Treaty of Doak’s Stand, the Treaty of Washington, D. C., and the Treaty at Dancing Rabbit Creek with the Choctaw Indian Nation. These treaties placed title to land that was west of the western boundary of Arkansas in the Choctaw Indian Nation. At the time of statehood, in 1836, the western boundary of Arkansas was east of the Poteau River. In 1904, the area between the western boundary of Arkansas and the Poteau River was platted and subdivided as part of West Fort Smith, Choctaw Nation, Indian Territory. In 1905, Congress extended the western boundary of Arkansas to the thread of the Poteau River and, by moving the boundary west, placed the land in dispute in Arkansas. In 1908, the Choctaw Indian Nation began selling its platted lots in West Fort Smith, Arkansas. In 1909, the area was annexed into Fort Smith, Arkansas. In 1918, William Ray purchased unallotted Indian land tracts 510 and 526 and subsequently wrote a letter of complaint to the Commissioner of the Five Civilized Tribes that the lots “were badly damaged by the river.” Part of these two tracts was later acquired by plaintiff Mikel as Lot 7 of West Fort Smith. In 1981, defendant Hubbard Marine purchased lots 10 and 11, which are part of Lot 7, and constructed a concrete driveway and dock that extend into the river. Plaintiff Mikel contends the driveway and dock are on her land.

Plaintiff filed this suit in ejectment, and thus had the burden of proving title to the land by relying upon the strength of her title and not upon the weakness of the defendant’s claim. See Jones v. Brooks, 233 Ark. 148, 343 S.W.2d 99 (1961). Hubbard Marine pleaded that it had acquired the right to the land, on which it built the driveway and dock, through accretion to lots 10 and 11. Both parties acknowledge that accretion is an affirmative defense and that Hubbard Marine had the burden of proof on the issue. See Simpson v. Martin, 174 Ark. 956, 298 S.W.2d 861 (1927). The trial court charged the jury on the law of accretion. The verdict was a general verdict for the defendant, and we have no way of knowing whether the jury found that plaintiff failed to establish her title, or whether it decided that the defendant proved it was entitled to the land through accretion.

Plaintiff makes six assignments of error, but we are able to reach only one of the points, as the other five are procedurally barred. The assignment we reach involves Hubbard Marine’s cross-examination of Doris Mikel about her complaint and amended complaint. Hubbard Marine’s attorney asked plaintiff if she had alleged in her complaint that the offending activity began in August of 1981. Plaintiff’s attorney objected, and the trial court overruled the objection. Hubbard Marine’s attorney then began a question with the phrase, “Seven years after you went down there and first saw. ..,” and plaintiff’s attorney objected. The trial judge sustained the objection and, at Ms. Mikel’s request, instructed the jury that a complaint initially was filed in Federal District Court in 1986. In her brief, plaintiff argues: “Introduction of a complaint into evidence is reversible error. Razorback Cab of Fort Smith, Inc. v. Lingo, 304 Ark. 323, 802 S.W.2d 444 (1991). Likewise, examination of a witness concerning specific allegations in that pleading should be inadmissible.”

Plaintiff cites no authority for the argument that a party cannot be cross-examined about his or her pleadings and does not make any further argument. When an appellant neither cites authority, nor makes a convincing argument, and where it is not apparent without further research that the point is well taken, we will affirm. Firstbank of Arkansas v. Keeling, 312 Ark. 441, 850 S.W.2d 310 (1993). We will not do appellant’s research. Id. Further, it is clear that Rule 613 of the Arkansas Rules of Evidence provides for examination of a witness concerning his or her prior statement. Plaintiff’s second objection, made soon after the first, was sustained, and an admonition was given as she requested. A party cannot complain when he or she has received all the relief requested. Odum v. State, 311 Ark. 576, 845 S.W.2d 524 (1993). Thus, the assignment of error is without merit.

Each of the other five points of appeal are either procedurally barred or, at most, harmless error, and we treat them only briefly. In one of the points, plaintiff argues that the trial court erred in failing to direct a verdict in her favor on Hubbard Marine’s affirmative defense of accretion, but plaintiff did not make such a motion at either the close of the defendant’s affirmative defense or after her rebuttal of the affirmative defense. In a trial by jury, a trial court is not required to grant a directed verdict on its on motion. See ARCP Rule 50(a) & (e); see also Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). At a later time, during discussion of the proposed instructions, plaintiff stated that the trial court should have granted a directed verdict, but even at that late time, there was no ruling by the trial court. Even though the point was already waived, see Thomas v. State, 315 Ark. 504, 868 S.W.2d 483 (1994), it was up to appellant to obtain a ruling in order to even possibly preserve the issue for appeal. Mine Creek Contractors, Inc. v. Grandstaff, 300 Ark. 516, 780 S.W.2d 543 (1989).

Plaintiff also contends that the general verdict was “not supported by a preponderance of the evidence.” Determining the preponderance of the evidence is for the jury, and an appellate court will not reweigh the evidence. However, it does not appear that this is what plaintiff is really asking us to do. In her argument, she contends that there was no evidence whatsoever to contradict her ownership of the property and that we should reverse and declare that she is the owner of the property. She did not move for a new trial, and this is not an appeal from a ruling denying a new trial. See ARCP Rule 59(a)(6). In addition, plaintiff did not move for a directed verdict on her case-in-chief, nor did she move for a directed verdict on Hubbard Marine’s affirmative defense. The sufficiency of the evidence was never raised in the trial court by plaintiff, and she cannot raise it for the first time on appeal, ARCP Rule 50(e); Willson Safety Prods. v. Eschenhrenner, 302 Ark. 228, 788 S.W.2d 729 (1990).

Plaintiff also argues that the doctrine of collateral estoppel barred Hubbard Marine from acquiring the land in dispute, but plaintiff neither pleaded collateral estoppel, see ARCP Rule 8(c), nor did she mention the words “collateral estoppel” to the trial court.

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Bluebook (online)
876 S.W.2d 558, 317 Ark. 125, 1994 Ark. LEXIS 321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mikel-v-hubbard-ark-1994.