Roberts v. Riege , 526 S.W.3d 60 ( 2017 )

Cite as 2017 Ark. App. 408
ARKANSAS COURT OF APPEALS
No. CV-17-82
LYNN ROBERTS AND VICKI STEEN Opinion Delivered: July 19, 2017
APPELLANTS
APPEAL FROM THE STONE
V. COUNTY CIRCUIT COURT
[NO. 69CV-14-76]
RITA RIEGE AND THE RITA MAY HONORABLE TIM WEAVER,
RIEGE REVOCABLE TRUST JUDGE
APPELLEES
DISMISSED WITHOUT PREJUDICE
PER CURIAM
Lynn Roberts and Vicki Steen appeal from the October 25, 2016 order entered by
the Circuit Court of Stone County, in a lawsuit that included Rita Riege’s claims for adverse
possession and boundary by acquiescence. Ms. Riege, now appellee, has filed a motion to
dismiss the appeal for lack of a final order. She asserts that although the circuit court
denominated the order a “final order and judgment,” it was not final for purposes of appeal
under Ark. R. App. P.–Civ(2)(a)(1) and long-standing case law. We agree, and we grant the
motion to dismiss without prejudice.
An appeal may be taken from a “final judgment or decree entered by the circuit
court” or from an order that in effect “determines the action and prevents a judgment from
which an appeal might be taken, or discontinues the action.” Ark. R. App. P.–Civ. 2(a)(1),
2(a)(2) (2016). Absent a final order or a properly executed certificate from the circuit court
making an “express determination, supported by specific factual findings, that there is no just
reason for delay”—which we do not have—an order that fails to adjudicate all of the parties’
Cite as 2017 Ark. App. 408
claims cannot be appealed. Ark. R. Civ. P. 54(b) (2016).
In order to be appealable, an order must be of such a nature as to not only decide the
rights of the parties, but also put the court’s directive into execution, ending the litigation
or a separable part of it. Petrus v. Nature Conservancy, 330 Ark. 722, 725, 957 S.W.2d 688,
689 (1997). The “Final Order” decree in Petrus purportedly dismissed the Petruses’ claims
and found that the Arkansas Natural Heritage Commission (ANHC) had prevailed on its
adverse-possession claim. Id. Although the decree included relevant findings, it did not
identify the property awarded to ANHC or the portions excepted and reserved to the
Petruses:
While the chancellor and the parties apparently intended to resolve the boundary lines
via a future survey, the permanent record in a boundary-line decision should describe
the line with sufficient specificity that it may be identified solely by reference to the
order. Otherwise, leaving those lines to be established by a future survey may likely
result in additional disputes, litigation, and appeals. Again, the case law that requires
a chancery decree to fix and describe the boundary lines in a dispute between
landowners discourages piecemeal litigation.
330 Ark. 722, 726, 957 S.W.2d 688, 689–90. Because the decree lacked finality, the appeal
was premature and was dismissed without prejudice.
We have followed Petrus in dismissing appeals where property is not adequately
described and the record does not contain sufficient evidence to permit the trial court to set
forth the specific description of the property without further proceedings. See, e.g., Keating
v. Mason, 2013 Ark. App. 477, at 2. Where property descriptions are deficient but the order
references existing surveys, and where nothing remains to be done, the case can be decided
on the merits and remanded for the inclusion of a more specific legal description in the order.
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Cite as 2017 Ark. App. 408
See, e.g., Rice v. Whiting, 248 Ark. 592, 452 S.W.2d 842 (1970); Boyster v. Shoemake, 101 Ark.
App. 148, 272 S.W.3d 139 (2008); Adams v. Atkins, 97 Ark. App. 328, 249 S.W.3d 166
(2007); Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997).
Here, as in Petrus, further action was contemplated by the parties. The circuit court’s
order included the following paragraphs:
11. That the jury did also return a verdict in favor of the Rita May Riege
Revocable Trust’s property, Count II Adverse Possession claim, meaning that from
henceforth, the Rita May Riege Revocable Trust is hereby ordered the owner of any
and lands located on the left side of the Raccoon Lane, from a point in which the
curve of the road begins, approximately 20 yards before the completion of the road’s
90 degree turn, to be more fully described in a survey to completed by Defendant.
12. That the jury did also return a verdict in favor of the Rita May Riege
Revocable Trust’s property, Count III Boundary by Acquiescence claim, meaning
that from henceforth, the Rita May Riege Revocable Trust is hereby ordered the
owner of any and all lands located on the left side of the Raccoon Lane, from a point
in which the curve of the road begins, approximately 20 yards before the completion
of the road’s 90 degree turn, to be more fully described in a survey to be completed
by Defendant.
13. That as to the jury’s findings in paragraphs 11 and 12 of this Order,
Intervenor, the Rita May Riege Revocable Trust is hereby given 45 days to obtain
a survey of the lands which have been found to be Intervenor’s by way of adverse
possession and boundary by acquiescence. Should more time be needed, the Court
should be notified and further time given.
Appellants have responded to the motion to dismiss their appeal of this order. They
deny an allegation in the motion that the survey had not been completed, but they state in
the affirmative that Ms. Riege’s counsel very well may not have received notice that the
survey had been completed at the time the motion was filed. They request that, should we
determine that the circuit court should enter an additional order containing or referencing
the survey prior to final disposition of their appeal, they be granted leave for entry of an
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Cite as 2017 Ark. App. 408
appropriate order and to supplement the record. Attached to their response is Exhibit A, an
email from their counsel to Ms. Riege’s counsel—with the survey attached. Also attached
to the response is Exhibit B, Ms. Riege’s motion for extension of time to complete any
necessary supplemental abstract and addendum.
We note that the survey attached to the response is not a part of the record before us
and was not before the circuit court at the time it entered the order now being appealed.
Thus, there is no survey or other evidence in the record to establish without further
proceedings the exact location of the awarded “lands located on the left side of the Raccoon
Lane, from a point in which the curve of the road begins, approximately 20 yards before the
completion of the road’s 90 degree turn, to be more fully described in a survey to be
completed by Defendant.” Accordingly, we grant appellee’s motion to dismiss appeal for
lack of a final order, and we dismiss the appeal without prejudice.
Dismissed without prejudice.
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