Schroeder v. Towmate, LLC , 2017 Ark. App. 83 ( 2017 )

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
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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.
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