Schroeder v. Towmate, LLC

2017 Ark. App. 83

• Court: Court of Appeals of Arkansas
• Decided: February 8, 2017
• Docket: CV-16-503
• Status: Published

Opinion

Cite as 2017 Ark. App. 83

ARKANSAS COURT OF APPEALS DIVISION IV No. CV-16-503

Opinion Delivered: February 8, 2017 CHARLES A. SCHROEDER APPELLANT APPEAL FROM THE BENTON V. COUNTY CIRCUIT COURT [NO. 04CV-15-1108]

TOWMATE, LLC HONORABLE JOHN R. SCOTT, APPELLEE JUDGE DISMISSED WITHOUT PREJUDICE

MIKE MURPHY, Judge

We dismiss this appeal without prejudice for lack of a final and appealable order as

required by Arkansas Rule of Appellate Procedure–Civil 2 and Arkansas Rule of Civil

Procedure 54(b). This case revolves around road-access rights over property located in

Benton County. The two parties in this case are neighboring property owners who currently

hold title to five adjacent tracts of land located along or near the road in dispute.

Currently, appellant Charles Schroeder owns two tracts of land in Benton County,

Arkansas, which are described as Tracts 1 and 2; appellee Towmate owns the remaining

three tracts. Tract 1 fronts the highway, and Schroeder uses it for his boat-repair business.

He uses Tract 2, which is located directly behind Tract 1, for his residence. Towmate’s

Tract 3 is west of Tracts 1 and 2, and Towmate’s Tracts 4 and 5 are directly east of

Schroeder’s tracts. The road is located on Tract 3. Cite as 2017 Ark. App. 83

In 2015, Towmate submitted plans to construct a commercial building on Tract 3 to

the Benton County Planning Commission, and the commission ordered Towmate to

construct screening fences as a condition for development. As a result of the screening, the

road on Tract 3 was enclosed by a fence. Schroeder contended that he and others used the

road over Tract 3 for ingress and egress onto Tracts 1 and 2. In response to the road being

blocked, Schroeder filed this lawsuit seeking preliminary and permanent injunctions to

restrain Towmate from blocking the roadway. Schroeder argued that the road was a “county

road,” which did not give Towmate authority to block the passageway. He alternatively

argued that the nature and use of the road created a prescriptive easement in favor of

Schroeder and the public. Schroeder also requested attorney’s fees. Towmate answered and

filed a counterclaim demanding its costs and attorney’s fees and $350 to repair its fence.

On August 26, 2015, the circuit court entered an order denying Schroeder a

temporary injunction. A two-day bench trial commenced, and the circuit court entered an

order on February 12, 2016, denying Schroeder’s request for injunctive relief and denying

his request for an easement over Tract 3. On March 9, 2016, Schroeder filed his notice of

appeal. Schroeder filed an amended notice of appeal on March 10, 2016. We decline to

reach the merits of this case because the order from which Schroeder appeals is not a final

order.

While no party has raised this issue, whether an order is final for appeal purposes is a

jurisdictional question that this court will raise sua sponte. Miracle Kids Success Acad., Inc. v.

Maurras, 2016 Ark. App. 445, at 2–3, 503 S.W.3d 94, 95. Arkansas Rule of Appellate

Procedure–Civil 2(a)(1) provides that an appeal may be taken only from a final judgment or

2 Cite as 2017 Ark. App. 83

decree entered by the circuit court. Arkansas Rule of Civil Procedure 54(b) provides that

when more than one claim for relief is presented in an action or when multiple parties are

involved, an order that adjudicates fewer than all the claims or the rights and liabilities of

fewer than all the parties is not a final, appealable order. Miracle Kids Success Acad., 2016 Ark.

App. 445, at 2–3, 503 S.W.3d at 95. Rule 54(b) allows a circuit court, when it finds no just

reason for delaying an appeal, to direct entry of a final judgment as to fewer than all the

claims or parties by executing a certification of final judgment as it appears in Rule 54(b)(1).

Ark. R. Civ. P. 54. However, absent this required certification, any judgment, order, or

other form of decision that adjudicates fewer than all the claims or the rights and liabilities

of fewer than all the parties shall not terminate the action. Miracle Kids Success Acad., supra.

No such certification was made in this case.

The circuit court’s order specifically addressed Schroeder’s arguments and held that

the road was not a county road and that neither Schroeder nor the public had a prescriptive

right of access over the road. The circuit court also addressed attorney’s fees and costs and

declined to award either. However, the order does not address Towmate’s counterclaim for

$350 to repair the fence. Because the judgment from which Schroeder appeals does not

resolve all the claims brought in this lawsuit, we dismiss this appeal without prejudice for

lack of a final order.

Dismissed without prejudice.

ABRAMSON and GLOVER, JJ., agree.

Daily & Woods, P.L.L.C., by: C. Michael Daily, for appellant.

Kelley Law Firm, a professional limited liability company, by: Glenn E. Kelley, for appellee.