Alb Investments, LLC v. Carl Echols , 2022 Ark. App. 160 ( 2022 )

Cite as 2022 Ark. App. 160ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-21-37
ALB INVESTMENTS, LLC OPINION DELIVERED APRIL 13, 2022
APPELLANT
APPEAL FROM THE BENTON
COUNTY CIRCUIT COURT
V. [NO. 04CV-19-761]
CARL ECHOLS HONORABLE JOHN R. SCOTT,
APPELLEE JUDGE
DISMISSED WITHOUT PREJUDICE
ROBERT J. GLADWIN, Judge
ALB Investments, LLC (ALB), is again before us with this one-brief appeal of the
September 30, 2020 decree quieting title filed by the Benton County Circuit Court. On
January 19, 2022, we remanded the case to settle and supplement the record with certain
relevant and unencrypted documents pursuant to Arkansas Rules of Appellate Procedure–
Civil 6(e) (2021). See ALB Invests., LLC v. Echols, 2022 Ark. App. 20. The record has been
supplemented with the necessary documents, and no new briefs have been submitted. ALB
argues that the court erred in (1) disqualifying its counsel and (2) granting default judgment
in favor of Carl Echols for failure to defend. We dismiss without prejudice.
Echols filed a complaint for quiet title on April 3, 2019, against ALB, Joshua Duggar,
and Edward Lewis regarding certain property commonly known as 16911 Mahurin Loop,
Garfield, Benton County, Arkansas.1 ALB filed both an answer and a motion to dismiss on
May 7; however, Lewis did not respond to the complaint. The circuit court entered an order
on June 10 dismissing Duggar from the lawsuit with prejudice. Echols filed an amended
complaint on June 4, to which ALB responded by filing its answer on July 5. After multiple
motions and responses were exchanged by the parties, ALB filed a counterclaim on
December 23, to which Echols filed his answer on January 13, 2020.
On February 5, Echols again amended his complaint. ALB filed its answer on
February 25, followed by a motion for summary judgment the following day.
On March 5, Echols moved to disqualify pursuant to Rule 3.7 of the Arkansas Rules
of Professional Conduct (2020) seeking the removal of ALB’s counsel, Travis Story. Echols’s
reason for requesting the disqualification was that “[Echols] expects and is likely to call Travis
W. Story, Esq. as a witness for a number of reasons.”
While ALB’s motion for summary judgment was pending, on March 9, the circuit
court scheduled a hearing on Echols’s motion to disqualify counsel for March 24. On March
10, the circuit court scheduled a hearing for April 13 on ALB’s motion for summary
judgment.
Without a hearing, on March 23—the day before the hearing scheduled on the motion
to disqualify counsel—the circuit court granted Echols’s motion to disqualify. 2 On April 4,
1
The complaint also included counts of fraud and breach of contract.
2
ALB had thirty days to appeal the order granting the motion to disqualify pursuant
to Ark. R. App. P.–Civ. 4 (2020). See In re Estate of Stinnett, 2011 Ark. 278, at 6, 383 S.W.3d
357, 361 (holding that if an order is appealable under Rule 2(a), it must be appealed within
2
Echols moved to strike ALB’s answer, counterclaim, answers to Echols’s amended complaint,
and motion in limine, alleging that Story was never qualified to serve as ALB’s attorney in
this case, and for attorney’s fees. The court subsequently dismissed ALB’s motion for
summary judgment on April 15 while ALB was not represented by counsel. Thereafter, ALB
retained substitute counsel who filed a response to Echols’s motion to strike on April 20 but
who failed to further participate in the case, communicate with opposing counsel, or make
court appearances.
On July 29, the circuit court notified the parties that all pending motions—including
Echols’s motion to strike ALB’s answer, counterclaim, answers to Echols’s amended
petitions, and motion in limine—would be heard on September 10. Echols appeared through
counsel, but for some unknown reason, neither ALB’s replacement counsel nor any ALB
representative appeared at the September 10 hearing. The circuit court noted the lack of
appearances for ALB and, without taking any evidence, stated from the bench, “I’m going
to grant the Motion to Strike and the Motion for Attorney’s Fees, and I’m also going—it’s
moot as to the Motion in Limine regarding evidence of criminal convictions. And I’m going
to grant the relief for quiet title prayed for in the original complaint.” The circuit court
directed Echols’s counsel to draft an order.
the thirty days after entry of the order as prescribed by Ark. R. App. P.–Civ. 4(a)). No notice
of appeal was filed in this matter until the present notice of appeal dated October 30, 2020,
which designated only the September 30, 2020 order quieting title as the order being
appealed.
3
On September 25, Echols filed with the circuit court copies of an affidavit of
publication and Echols’s affidavit noting that a copy of the complaint had been posted on
the real property as well as an accounting for attorneys’ fees. The circuit court signed and
entered a decree quieting title on September 30 in which it found in relevant part:
3. [Echols] is in possession of the following described property in the Benton
County Arkansas:
Part of the SE/4 of the SE/4 Section 17, Township 20 North, Range 28 West,
Benton County, Arkansas, described as beginning at the SW corner of the
SE/4 of the SE/4 of said Section 17; Thence North 33°45’33” East, 807.03
feet; Thence South 71°52’57” East, 360.38 feet; Thence South
39°06’33”West, 446.03 feet; Thence North 89°26’10” West, 168.00 feet;
Thence South 00°36’39” East, 217.84 feet; Thence North 89°26’10” West,
343.97 feet to the point of beginning and containing 5 acres.
4. [Echols] purchased the property described herein on January 6, 2006, from
[Lewis] and has possessed it continuously since then. [Echols] was given a signed,
dated, and witnessed bill of sale that was recorded by the Benton County Circuit
Clerk at Mortgage Book 2012 Page 10087.
6. [Echols] and those under whom he claims, have paid taxes on all said property
described above continuously for a period of more than the past seven (7) years. The
County Clerk’s tax certificates attesting to such facts have been filed herein.
7. The Court finds that [Echols] is the fee simple owner of the property described
herein and title is quieted and confirmed in his name.
9. Any potential claims or interest of any persons whatsoever, and specifically as
to Defendants/Respondents herein, by virtue of other instruments or defective
conveyances in the chain of title, or otherwise, are inferior to [Echols]’s title, and that
[Echols] is entitled to have his title quieted and confirmed. No one is in possession
of the premises claiming adversely to it.
10. [Lewis] was properly served on April 10, 2019, but has failed to answer and is
in default.
11. [ALB] failed to appear for the hearing on September 10, 2020 and is ordered
to pay attorney’s fees and costs in the amount of $5,000.00.
4
IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED, that title to the
above described property is hereby quieted in fee simple absolute and confirmed in
[Echols]; that any existing or potential adverse claims or interests of any persons
whatsoever, and specifically as to Defendants herein, their unknown heirs, devisees,
successors and assigns, and anyone claiming through or under them, be extinguished
and declared a nullity; and that this Court retains jurisdiction of this action to grant
such other relief as may be shown necessary and appropriate.[3]
Notably, there is no reference to the oral grant of Echols’s motion to strike. ALB filed
a timely notice of appeal on October 30. An amended decree quieting title was filed on
December 15; however, there does not seem to be any significant difference in the original
decree and the amended decree. The only purpose of the amended decree was to correct the
property description to reflect that the property was subject to an access and utility easement
along the north side. ALB did not file a subsequent notice of appeal to include the amended
decree.
ALB appeals the September 30 decree quieting title, arguing that the circuit court
erred in disqualifying its counsel and in granting default judgment in favor of Echols on the
basis of ALB’s failure to defend; however, we lack jurisdiction to address the merits of ALB’s
arguments because it has appealed from a nonfinal order. Whether an order is final and
subject to appeal is a jurisdictional question that appellate courts have a duty to raise sua
sponte. McKelvey v. McKelvey, 2022 Ark. App. 111, at 3. For this court to have jurisdiction
over an appeal, the order appealed must either be a final order or meet one of several
exceptions under Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure–Civil (2020). A
3
There is no paragraph 5 or paragraph 8 in the decree.
5
final order is one that dismisses the parties, discharges them from the action, or concludes
their rights to the subject matter in controversy. Id.Because the circuit court’s governing written order failed to address the oral ruling
granting Echols’s motion to strike—in particular ALB’s pending counterclaim—the order
from which ALB appeals is not a final order. See Howell v. Howell, 2021 Ark. App. 97, at 6
(holding that because a circuit court’s oral ruling was not included in its written ruling, the
order lacked finality). In this case, even though the circuit court orally dismissed ALB’s
counterclaim at the hearing, the court failed to address the ruling in the resulting written
decree. Because the written order controls, we decline to interpret the circuit court’s findings
and must assume that the circuit court has not disposed of the counterclaim. Because the
written order does not address all of the claims raised, we dismiss the appeal without
prejudice.
Dismissed without prejudice.
KLAPPENBACH and BROWN, JJ., agree.
Webb Law Office, by: Samuel A. Martin, for appellant.
One brief only.
6