Ervin King v. Sam Gale , 166 So. 3d 589 ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2013-CA-00271-COA
ERVIN KING APPELLANT
v.
SAM GALE AND JERUSALEM BAPTIST APPELLEES
CHURCH
DATE OF JUDGMENT: 11/20/2012
TRIAL JUDGE: HON. EDWARD C. FENWICK
COURT FROM WHICH APPEALED: KEMPER COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: ROBERT M. LOGAN JR.
ATTORNEY FOR APPELLEE: GEORGE HOWARD SPINKS
NATURE OF THE CASE: CIVIL - REAL PROPERTY
TRIAL COURT DISPOSITION: DISMISSED APPELLANT’S CLAIMS TO
CONFIRM AND QUIET TITLE AND FOR
AN EASEMENT BY IMPLICATION OR
NECESSITY; DENIED APPELLANT’S
CLAIM FOR A PRESCRIPTIVE EASEMENT
DISPOSITION: AFFIRMED - 06/16/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
MAXWELL, J., FOR THE COURT:
¶1. Ervin King appeals the denial of his claims for either a prescriptive easement or
easement by necessity across Sam Gale’s and Jerusalem Baptist Church’s properties. The
evidentiary burden required to establish a prescriptive easement is high—clear and
convincing evidence. And the chancellor found King failed to clearly establish the most
basic principle for a prescriptive easement—use that is non-permissive. The chancellor also
found King did not prove that an easement by necessity across Gale’s property was, in fact,
necessary. And as to the church property, King could not meet the preliminary requirement
for an easement-by-necessity claim—that his and the church’s land was once commonly
owned.
¶2. After review, we find the chancellor applied the law correctly and based his decision
on substantial record evidence. So we affirm.
Facts and Procedural History
I. King’s Property
¶3. King has owned a landlocked piece of property in Kemper County since 1974.
Though King lives out of state, he visits the Mississippi property three to four times a year.
¶4. According to King, to get to his property, most often he would turn off Highway 39
onto Jerusalem Church Road and head south. Jerusalem Church Road runs past Jerusalem
Baptist Church, which has a private drive and parking lot. Just south of the church parking
lot is Sam Gale’s property. And south of Gale’s property lies King’s. Gale’s property is
fenced. But sometimes, with Gale’s permission, King would open Gale’s gates and drive
across Gale’s property to get to his. Most times, however, King would park in the church
parking lot, hop the fence, and then walk across Gale’s property.
¶5. At other times, King would not go through Gale’s property at all. Instead, he would
enter his property through land belonging to another neighbor, George Follet. For example,
when King harvested timber in 1985, he used Follett’s property to remove the timber.
¶6. In 2004, King and Gale had a falling out. So King stopped going across Gale’s
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property and ever since has crossed Follett’s.
II. King’s Lawsuit
¶7. In 2006, King sued Gale. King asked the Kemper County Chancery Court to establish
a boundary line between his and Gale’s properties. He also asked for an easement by
necessity or prescriptive easement across Gale’s land. Later, King amended his complaint,
adding Jerusalem Baptist Church as a defendant. King’s amended complaint sought an
easement across the church’s property too.
¶8. Trial began in January 2012. At the close of King’s evidence, Gale and Jerusalem
Baptist Church filed a motion to dismiss. See M.R.C.P. 41(b) (permitting the defendant, in
a case tried without a jury, to file a motion to dismiss “on the ground that upon the facts and
the law the plaintiff has shown no right to relief”). The chancellor partially granted the
motion.
¶9. The chancellor dismissed King’s claim to establish a boundary line, because he
“didn’t think the evidence was compelling enough.” See Buelow v. Glidewell, 757 So. 2d
216, 220 (¶12) (Miss. 2012) (directing that a Rule 41(b) motion “should be granted if the
plaintiff has failed to prove one or more essential elements of his claim or if the quality of
the proof offered is insufficient to sustain the plaintiff's burden of proof”). While King
presented an expert surveyor, the chancellor refused to admit some of the documents the
expert relied on—namely, a twenty-year-old preliminary sketch prepared by the surveyor’s
predecessor and a plat the surveyor created from his predecessor’s sketch.
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¶10. The chancellor also dismissed King’s claim for an easement by necessity across both
Gale’s and Jerusalem Baptist Church’s properties. The chancellor found King had presented
no proof of necessity against Gale. King also offered no proof his land used to be part of a
common tract with the church property—an essential first step to establishing an easement
by necessity.
¶11. Still, the chancellor overruled the motion to dismiss the prescriptive-easement claim.
Because he could not say King failed to establish this claim, the chancellor ordered trial to
continue on this remaining issue.
¶12. In his order partially granting dismissal under Rule 41(b), the chancellor used the
phrase “without prejudice.” But because of the confusion that phrase created, the chancellor
later entered an order clarifying that, since his dismissal was based on an evaluation of the
merits of King’s evidence, the boundary-line claim and easement-by-necessity claims had
been actually dismissed with prejudice. According to the chancellor, the phrase “without
prejudice” merely had been used “to convey to the parties that the ruling did not prejudice
the rights of each defendant to proceed with the presentation of their respective case on the
only remaining issue before the court.” See M.R.C.P. 41(b) (expressly stating that a
defendant does not “waiv[e] his right to offer evidence in the event the motion is not
granted”).
¶13. Trial continued in November 2012. At the close, the chancellor denied King’s claim
for a prescriptive easement across Gale’s and the church’s property, finding King failed to
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prove by clear and convincing evidence all six required elements of a prescriptive easement.
In particular, King had failed to show his use of Gale’s property had been hostile, as King
himself testified he had asked for Gale’s permission.
¶14. With the November 2012 order dismissing the remaining claims, both this order and
the earlier Rule 41(b) order became final and appealable. And following the denial of his
motion for a new trial or alteration of the judgment, King timely appealed.
¶15. On appeal, we employ a limited standard of review. We will not disturb the
chancellor’s findings unless the chancellor was manifestly wrong or clearly erroneous or the
chancellor applied the wrong legal standard. McNeil v. Hester, 753 So. 2d 1057, 1063 (¶21)
(Miss. 2000).
Discussion
I. Surveyor’s Sketch and Plat
¶16. King’s first argues the chancellor erred by excluding the preliminary sketch and plat
offered by his expert witness, licensed surveyor Henry D. Purvis III. Gale and Jerusalem
Baptist Church objected to the sketch because it had been drawn twenty years ago by another
surveyor, a man Purvis had apprenticed under. And they objected to Purvis’s plat because
Purvis had based the plat on the sketch, not his own survey.
¶17. King claims these objections had more to do with the weight of this evidence, not its
admissibility. He asserts the sketch and plat were business records and, thus, should have
been admitted under the business-records exception to the hearsay rule. See M.R.E. 803(6).
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We agree with King that there was no hearsay issue with the sketch and plat. See Dillon v.
Greenbrier Digging Serv., Ltd., 919 So. 2d 172, 175-76 (¶¶8-10) (Miss. Ct. App. 2005)
(affirming the admission of an inspection report, which had been prepared by a different
inspector than the one offering it into evidence, because it met the requirements of the
business-record exception). And any evidentiary problems had more to do with the weight
and credibility, not the admissibility, of this evidence.
¶18. That said, the chancellor clearly found the sketch and plat were insufficient to
establish a boundary line between the two properties. Both the admissibility and—in a bench
trial like this one—evidentiary weight of the sketch and plat fell within the sound discretion
of the chancellor. Terrain Enters., Inc. v. Mockbee, 654 So. 2d 1122, 1131 (Miss. 1995)
(broad discretion vested to trial judge regarding evidentiary questions); Murphy v. Murphy,
631 So. 2d 812, 815 (Miss. 1994) (deferential standard of review for chancellor, who sits as
the finder of fact). On appeal, our role is not to substitute our judgment for the chancellor’s
but instead to ask whether he abused his discretion. See Murphy, 631 So. 2d at 815. Further,
“for a case to be reversed on the admission or exclusion of evidence, it must result in
prejudice and harm or adversely affect a substantial right of a party.” Terrain Enters., 654
So. 2d at 1131.
¶19. Had a trial judge excluded this evidence, preventing a jury from weighing it, such
exclusion might be reversible. But here the chancellor was the fact-finder. And even had
he admitted the sketch and plat, it is clear he found this evidence lacked sufficient weight to
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meet King’s burden to establish the boundary line. So we cannot say that his refusal to admit
this evidence was reversible error.
II. Prescriptive-Easement Claim
¶20. King next argues he was entitled to a prescriptive easement across both Gale’s and
Jerusalem Baptist Church’s properties.1 We are mindful that the evidentiary burden to
establish a prescriptive easement is high. King had to show by clear and convincing evidence
he used the church’s private drive and a path across Gale’s property to get to his. See
Thornhill v. Caroline Hunt Trust Estate, 594 So. 2d 1150, 1152 (Miss. 1992). He also had
to prove his use was (1) under claim of ownership, (2) actual or hostile, (3) open, notorious,
and visible, (4) continuous and uninterrupted for a period of ten years, (5) exclusive, and (6)
peaceful. Id. at 1152-53 (citations omitted).
¶21. As to Gale, the chancellor found no clear and convincing evidence of even a road
across Gale’s property—let alone clear and convincing evidence King had been using this
road openly, notoriously, visibly, adversely, under a claim of ownership, exclusively,
peacefully, and uninterruptedly for at least ten years. In Rawls v. Blakeney, 831 So. 2d 1205,
1
While Gale filed a brief in response to King’s, Jerusalem Baptist Church did not.
Traditionally, the “failure to file a brief [was] tantamount to a confession of error[.]” Gary
v. Gary, 84 So. 3d 836, 838-39 (¶11) (Miss. Ct. App. 2012). But “there is an exception when
this court can ‘state with conviction after reviewing the record and brief of the appealing
party that no error existed.’” Id. (quoting Conservator of Eldridge v. Sparkman, 813 So. 2d
753, 755 (¶7) (Miss. Ct. App. 2001)). Because our review of the record and King’s brief
leaves us with the conviction no error occurred, we do not take Jerusalem Baptist Church’s
failure to file a brief to be a confession of error.
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1209-10 (¶15) (Miss. 2002), this court affirmed the grant of prescriptive easement, in part,
because the plaintiff had met the under-a-claim-of-ownership requirement by maintaining
the road across her neighbor’s property and keeping it from getting overgrown. Here, had
there ever been a road, it is clear King never did anything to maintain it or otherwise claim
ownership of an easement over the road. So we agree King’s claim for a prescriptive
easement to drive across Gale’s property fails.
¶22. At most, the evidence showed King had used Gale’s property to walk across by foot.
See Fratesi v. City of Indianola, 972 So. 2d 38, 43 (¶14) (Miss. 2008) (noting that the scope
of a prescriptive easement is limited to the adverse use). But King testified he had done so
with Gale’s permission. “[T]he rule is well settled that use by express or implied permission
or license, no matter how long continued, cannot ripen into an easement by prescription[.]”
Patterson v. Harris, 239 Miss. 774, 785, 125 So. 2d 545, 550 (1960). Based on King’s own
testimony, the chancellor found King’s use of Gale’s property was permissive and thus could
not ripen into a prescriptive easement. Because we will not disturb a chancellor’s finding of
fact when it is supported by substantial evidence from the record, Floyd v. Floyd, 949 So. 2d
26, 28 (¶5) (Miss. 2007), we find King’s claim for a prescriptive easement to walk across
Gale’s property also fails.
¶23. Against Jerusalem Baptist Church, King likewise failed to prove by clear and
convincing evidence his use of the church’s driveway and parking lot was under a claim of
ownership and non-permissive (i.e., hostile). At most, King drove or parked on the driveway
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four times a year. Given how the church parking lot was used, this was certainly not enough
to assert a claim of ownership of an easement. As one of the church’s deacons testified, King
was welcome to use their driveway and parking lot “just like anyone else.” Because King
took advantage of the church’s generosity, he cannot claim a prescriptive easement. See
Patterson, 239 Miss. at 785-86, 125 So. 2d at 550 (“It is only when the use of the path or
road is clearly adverse to the owner of the land, and not an enjoyment of neighborly courtesy,
that the landowner is called upon ‘to go to law’ to protect his rights.”).
III. Easement-by-Necessity Claim
¶24. Alternatively, King claims he was entitled to an easement by necessity.
¶25. An “easement by necessity” and an “implied easement” are the same. Delancey v.
Mallette, 912 So. 2d 483, 488 (¶13) (Miss. Ct. App. 2005) (citations omitted). “An implied
easement must be continuous, apparent, permanent, and necessary.” Id. at (¶14) (citing
Hutcheson v. Sumrall, 220 Miss. 834, 840, 72 So. 2d 225, 227 (1954)). “Apparent” in this
context “does not necessarily mean ‘visible,’ but includes permanent artificial structures.”
Hutcheson, 220 Miss. at 840, 72 So. 2d at 227. So “use is apparent when it may be
discovered upon reasonable inspection.” Id.
¶26. While the chancellor provisionally dismissed2 King’s claim of an easement by
necessity months before he ruled on the prescriptive-easement claim, his findings from the
2
Under Mississippi Rule of Civil Procedure 54(b), an order that disposes of less than
all claims is not final, unless certified as such, and thus “is subject to revision at any time
before the entry of [a] judgment adjudicating all claims[.]”
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prescriptive-easement hearing reinforce the earlier conclusion that King failed to establish
an easement by necessity across Gale’s property. Again, the chancellor found scant evidence
of the alleged dirt road used in the decades after King’s property was severed and became
landlocked. So there was no “apparent” easement. And even had there once been a road, it
appeared to have been grown over, meaning there was also no “continuous” and “permanent”
easement. Finally, based on the chancellor’s findings, there was no “necessary” easement.
In other words, it is not necessary for King to cross Gale’s property to enjoy his property.
King testified he quit crossing Gale’s property after their dispute in 2004, opting instead to
cross Follett’s property to get to his. But even before this, King sometimes circumvented
Gale’s property, choosing to cross Follett’s property instead. Specifically, King went over
Follett’s and another neighbor’s land when removing timber back in 1985.
¶27. King also failed to establish an easement by necessity across Jerusalem Baptist
Church’s property. “[A]s an initial first step,” King had to “show that the tract that is
blocked in its access to a public road was once joined with the tract over which access is
allegedly necessary.” Delancey, 912 So. 2d at 488 (¶14) (citing Dieck v. Landry, 796 So. 2d
1004, 1008 (¶13) (Miss. 2001)). And King did not prove this first step. While King’s expert
testified the two tracts were in the same section, he did not testify they were commonly
owned. Nor do the title documents support King’s claim of common ownership. Rather, one
of the church’s deacons testified the church obtained its tract of land decades before King’s
parcel became severed and landlocked. See id.
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¶28. For these reasons, we affirm the chancellor’s order dismissing King’s claim for an
easement by necessity.
¶29. In light of Judge James’s separate opinion, we explain why our decision to affirm is
necessarily with prejudice. As the chancellor acknowledged in his amended Rule 41(b)
order, his use of the phrase “without prejudice” was a mistake. It was not meant to convey
that he was dismissing King’s easement-by-necessity claim on the pleadings, without delving
into the evidence. See M.R.C.P. 12(b)(6). Instead, as the chancellor expressed in his
amended order, his Rule 41(b) ruling was an adjudication on the merits, entered after King
“completed the presentation of his evidence.” See M.R.C.P. 41(b).
¶30. Apparently King was satisfied by this explanation. Nowhere in his brief does he ask
that if we affirm his already-denied easement-by-necessity claim that we do so “without
prejudice.” And King is not seeking an opportunity to refile his easement-by-necessity claim.
Nor could he be afforded a do over. Because the chancellor’s order was a final ruling on the
merits, the doctrine of res judicata bars him from relitigating his easement-by-necessity
claim. See Harrison v. Chandler-Sampson Ins., 891 So. 2d 224, 232 (¶23) (Miss. 2005).
¶31. THE JUDGMENT OF THE CHANCERY COURT OF KEMPER COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, CARLTON AND FAIR, JJ.,
CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT
SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART AND
DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. IRVING, P.J., NOT
PARTICIPATING.
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JAMES, J., CONCURRING IN PART AND DISSENTING IN PART:
¶32. I agree with the majority opinion that the circuit did not err in denying King’s claim
to a prescriptive easement. However, excluding the survey plat from evidence and changing
the dismissal of the easement by necessity from a dismissal without prejudice to a dismissal
with prejudice resulted in an abuse of discretion. Therefore, I respectfully dissent.
Denial of Survey Plat into Evidence
¶33. King argues that the sketch of the survey plat should have been admitted into evidence
because it was a part of regularly kept business records, an exception to the hearsay rule.
King contends that because Henry D. Purvis III was qualified as an expert witness by the trial
court and the successor to the surveying business, the plat should have been introduced by
his testimony. According to King, Purvis’s testimony about the sketch concerned a regularly
kept business record, confirming its accuracy.
¶34. An appellate court reviews “a trial court’s exclusion of evidence under an abuse-of-
discretion standard, and where [it] find[s] a trial court has erred, [it] will not reverse unless
the error adversely affects a party’s substantial right.” Heflin v. Merrill, 154 So. 3d 857, 860
(¶9) (Miss. 2014). “Relevancy and admissibility of evidence are largely within the discretion
of the trial court, and the trial court’s decision will only be reversed where that discretion has
been abused.” In re Dissolution of Marriage of Spriggs, 149 So. 3d 517, 526 (¶39) (Miss.
Ct. App. 2014) (citing Terrain Enters. Inc. v. Mockbee, 654 So. 2d 112, 1128 (Miss. 1995)).
¶35. Also, we have previously stated:
12
Mississippi Rule of Evidence 801(c) defines hearsay as[] “a statement, other
than one made by the declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted.” The threshold question
when addressing a hearsay issue is whether the statement is actually hearsay.
Blakeney v. State, 39 So. 3d 1001, 1010 (¶26) (Miss. Ct. App. 2010). Purvis referred to the
survey plat sketch that was prepared by Purvis’s predecessor before his death, making the
plat hearsay. King attempted to use the plat as evidence of the existence of the boundary
lines between his and Gale’s properties. “Hearsay evidence is inadmissible unless it falls
within one of the known exceptions.” Miss. Gaming Comm’n v. Freeman, 747 So. 2d 231,
242 (¶42) (Miss. 1999).
¶36. King claims the sketch falls under the business-records exception. In order to
establish the foundational requirements for admitting evidence under the business-record
exception, the following elements are required:
1) the statement is in written or recorded form; 2) the record concerns acts,
events, conditions, opinions or diagnoses; 3) the record was made at or near
the time of the matter recorded; 4) the source of the information had personal
knowledge of the matter; 5) the record was kept in the course of regular
business activity; and 6) it was the regular practice of the business activity to
make the record.
Dillon v. Greenbriar Digging Serv. Ltd., 919 So. 2d 172, 175 (¶8) (Miss. Ct. App. 2005)
(citing Flowers v. State, 773 So. 2d 309, 322 (¶72) (Miss. 2000)). Although the plat satisfies
several requirements, it does not fulfill all of them. When testifying, Purvis admitted that
although he was working with the surveyor who was the author of the sketch, he was
“working on the rod” and was an apprentice at the time the sketch was made. It is unclear
13
whether or not Purvis had personal knowledge of what was contained in the sketch. The trial
court did not abuse its discretion when it disallowed the admission of the survey into
evidence and dismissed the easement by necessity without prejudice. However, to disallow
the survey and dismiss the easement with prejudice results in an abuse of discretion. It is
clear that it was within the chancellor’s discretion to allow the admission of the evidence.
The dismissal with prejudice resulted in harm or prejudice to King, and it adversely affected
his substantial rights. This constitutes reversible error. See Terrain Enters., 654 So. 2d at
1131.
Easement by Necessity
¶37. King argues that, other than Gale’s property, there were no practical ways to gain
access to the public road. King contends that the other proposed ways to gain access to a
public road were impractical because they were heavily wooded and had large ditches.
¶38. “A claimant seeking an easement by necessity has the burden of proof and must
establish that he is entitled to a right of way across another’s land.” Fike v. Shelton, 860 So.
2d 1227, 1230 (¶11) (Miss. Ct. App. 2003) (citing Broadhead v. Terpening, 611 So. 2d 949,
954 (Miss. 1992)). King “must demonstrate strict necessity and is required to prove there is
no other means of access.” Id. An easement by necessity may be established by proving
reasonable necessity instead of absolute necessity. Evanna Plantation Inc. v. Thomas, 999
So. 2d 442, 446 (¶12) (Miss. Ct. App. 2009). In order to determine what is reasonably
necessary, “the operative consideration is ‘whether an alternative would involve
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disproportionate expense and inconvenience.’” Id.
¶39. Since 2003, King had not used the easement, yet King continued to visit the property
by crossing another neighbor’s property. We have previously stated that “an easement by
necessity will not be awarded when the only evidence presented was that an alternative route
would be longer and less convenient. Where one seeks to obtain a ‘way of access’ easement
by necessity[,] but submits no evidence as to the allegedly higher costs of an alternative
route, a trial court will not err in declining to award an easement.” Harkness v. Butterworth
Hunting Club Inc., 58 So. 3d 703, 708 (¶14) (Miss. Ct. App. 2011). King does not offer
sufficient evidence of any additional costs or impractical alternative routes. Therefore, I find
that the trial court did not err in refusing to establish an easement by necessity.
¶40. However, the easement by necessity also failed because the survey was not admitted
into evidence and no alternative route was shown along with the expenses for creating the
route. The chancellor abused his discretion in attempting to dismiss the easement by
necessity with prejudice after he initially dismissed the easement by necessity without
prejudice. As persuasive authority, in the case of Hutchinson v. City of Madison, 987 N.E.2d
539 (Ind. Ct. App. 2013), the court allowed a dismissal without prejudice to allow the City
to include an appraisal of the real property in order to refile its condemnation proceeding.
Hutchinson argued that the counterclaim should be dismissed with prejudice because the
hearing was an adjudication on the merits. The judge stated, “We are not convinced that the
failure to comply with Indiana Code Section 32-24-1-3(c) forever bars the state from
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acquiring property.” Id. at 542. Chancellors have broad discretion to fashion remedies to
avoid an inequitable dilemma. Borne v. Estate of Carraway, 118 So. 3d 571, 592 (¶65)
(Miss. 2013). In Mississippi State Highway v. Morgan, 248 Miss. 631, 638, 160 So. 2d 77,
80 (1964), the Court held that the highway commission abused its discretion in seeking to
condemn an easement, and the judgment of the circuit court was affirmed without prejudice
to any other rights or remedies, if any, which might be asserted by the parties. It should be
noted, however, that the subject of this case is a condemnation proceeding by the State. I do
not see why the same logic should not be applied to individuals in cases where injustice
would result. If King is not allowed to refile his complaint to pursue his petition for an
easement by necessity, his property will remain landlocked.
¶41. In the court’s order dated June 29, 2012, the court entered its Order on Plaintiff’s
Motion to Dismiss and for Withdrawal of Motion for New Trial as to the easement by
necessity. In this order, the court also set the hearing on the prescriptive easement for
November 5, 2012. In the court’s order, the court changed its order from a dismissal of the
easement by necessity without prejudice to a dismissal with prejudice, which would leave
King without a remedy. Also, I note that under Mississippi Rule of Civil Procedure 52(b)
a judgment must be amended within ten days of the Mississippi Rule of Civil Procedure
41(b) dismissal. The order of dismissal without prejudice was signed on January 30, 2012,
and filed on February 1, 2012. The judge labeled the change as a clarification, but it was in
16
the nature of an amendment.3 The amendment was done outside of the ten-day period as
required by the rule.
¶42. The majority opinion states that the petition should be dismissed without prejudice.
However, as previously stated, the judgment must be amended within ten days pursuant to
Rule 52(b). Also, our courts have established precedence in affirming judgments without
prejudice. See Pierce v. State, 811 So. 2d 395, 397 (¶7) (Miss. 2001).
¶43. Also, it is noted that in King’s motion to dismiss and for withdrawal of the motion for
a new trial, King stated:
Plaintiff would show that it is his desire to withdraw his motion for new trial
and allow the Court’s ruling of January 30, 2012[,] to stand, provided all other
issues in the Plaintiff’s complaint and amended complaints are dismissed
without prejudice.
King relied on the judge’s order that he was dismissing the easement by necessity without
prejudice. The majority opinion states that Rule 54(b) allows an order to be revised at any
time before the judgment adjudicating all of the claims. This is true for a revision. However,
the trial court dismissal with prejudice was a substantial amendment that prejudiced the
Appellant.4
3
“An amended judgment refers to a trial court correcting a substantive error in an
original judgment. . . . [A]n amended judgment should be issued within 10 days of the
original judgment.” http://definitions.uslegal.com/a/amended-judgment/ (citing Fed. R. Civ.
P. 59(e)).
4
“Revise - a reexamination or careful review for conclusion or improvement. A
revision can occur only if it will not materially prejudice the accused.” Black’s Law
Dictionary 1434 (9th ed. 2009).
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¶44. As a result, I would reverse the dismissal of the easement by necessity with prejudice,
and affirm the dismissal of the easement by necessity without prejudice to King’s right to file
a petition for an easement by necessity.
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