Townsend v. Arkansas State Highway Comm'n

Ray TOWNSEND and Ray Townsend Farms, Inc. v.
ARKANSAS STATE HIGHWAY COMMISSION

96-677                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered November 25, 1996


1.   Jurisdiction -- when equity jurisdiction exists. -- As a
     general matter, equity jurisdiction exists only when the
     remedy at law is inadequate; but the existence of a remedy at
     law does not deprive the chancery court of jurisdiction unless
     such remedy is clear, adequate, and complete.

2.   Jurisdiction -- determined from pleadings. -- The supreme
     court determines jurisdiction from the pleadings.

3.   Jurisdiction -- subject-matter jurisdiction -- raised by
     appellate court on its own motion. -- Although appellant's
     abstract was flagrantly deficient because he failed to include
     the order of the chancery court disposing of the issue in
     question, it was clear from the abstract that appellant had
     broached the fundamental point of jurisdiction to the chancery
     court; moreover, the appellate court can consider subject-
     matter jurisdiction on its own motion.

4.   Jurisdiction -- equity -- adequacy of legal remedy may not be
     raised first on appeal. -- When the issue is whether the
     chancery court has jurisdiction because the plaintiff lacks an
     adequate remedy at law, the supreme court will not allow it to
     be raised for the first time on appeal; it is only when the
     court of equity is wholly incompetent to consider the matter
     that the appellate court will permit the issue of competency
     to be raised for the first time on appeal; the appellate court
     will not raise the issue itself when the adequacy of the legal
     remedy is in question, and it will not permit a party to raise
     it on appeal if it was not first brought to the chancery
     court's attention.

5.   Appeal & error -- deficient abstract -- supreme court will not
     speculate about chancery court's ruling. -- Where the chancery
     court's order was not abstracted, the supreme court would
     neither speculate about the chancery court's ruling nor
     require all seven justices to go to the record to determine
     whether an order was entered; there are seven justices and one
     record, and it is impossible for the seven justices to examine
     the one record.

6.   Appeal & error -- legal-remedy issue not timely raised. -- The
     legal-remedy issue was not timely raised, and the supreme
     court did not view a general denial of an allegation of
     inadequate remedy raised in the complaint in 1992 as the
     equivalent of a jurisdictional contest or of a motion to
     transfer to circuit court where the litigation had been
     ongoing since April 1992, and the merits of this case had been
     decided in 1993.


     Appeal from Monroe Chancery Court; Kathleen Bell, Chancellor;
affirmed.
     T. David Carruth, for appellants.
     Robert L. Wilson, Chief Counsel, William L. Wharton, and
Calvin R. Gibson, for appellee.

     Robert L. Brown, Justice.
     This is the fourth time this matter has been before this
court.  See Arkansas State Highway Comm'n v. Townsend, 313 Ark.
702, 858 S.W.2d 66 (1993) (Townsend I); Arkansas State Highway
Comm'n v. Townsend, 317 Ark. 581, 879 S.W.2d 447 (1994) (Townsend
II); Townsend v. Arkansas State Highway Comm'n, 322 Ark. 122, 907 S.W.2d 726 (1995) (Townsend III).  Appellants Ray Townsend and Ray
Townsend Farms, Inc., (Townsend) now contend that the chancery
court lacked subject-matter jurisdiction when it first heard the
Highway Commission's petition for a mandatory injunction to remove
encroachments, which resulted in Townsend I.  This is so, according
to Townsend, because the Highway Commission had an adequate remedy
at law -- self help.  We affirm.
     On April 1, 1992, appellee Highway Commission filed a petition
for a mandatory injunction to compel Townsend to remove
encroachments from the Highway Commission's right-of-way.  The
chancery court enjoined the Highway Commission from removing the
encroachments.  In Townsend I, this court reversed the chancery
court.
     In Townsend II, the Highway Commission again appealed because
on remand from Townsend I, the chancery court ruled that it was
powerless to act because the case had been "dismissed" by this
court.  We held that the language contained in the body of the
opinion in Townsend I was clear in its directive, which
contemplated a remand despite the use of the word "dismissed" at
the end of the opinion.  We reversed and remanded the case for the
trial court to enter its decree ordering Townsend to remove all
structures from the right-of-way.
     In Townsend III, we upheld a contempt sanction against
Townsend and refused to hold that the "dismissal" in Townsend I was
law of the case.
     The following facts give rise to Townsend IV.  On November 29,
1995, Townsend for the first time moved to dismiss the case for
lack of subject-matter jurisdiction because the Highway Commission
had an adequate remedy at law.  In response, the Highway Commission
asserted that the motion to dismiss was filed for an improper
purpose and only for harassment and delay in violation of Ark. R.
Civ. P. 11.  A hearing was held on Townsend's motion, and counsel
for the Highway Commission argued that the motion was meritless
because this court had previously held that the mandatory
injunction was proper.  Counsel for Townsend countered that the
subject-matter jurisdiction of the court could be raised at any
time.  This was so, Townsend's counsel contended, because from the
beginning the Highway Commission had an adequate remedy at law
under Ark. Code Ann.  27-67-304 (Repl. 1994).  He added that
Townsend had disputed the inadequacy of the remedy at law in his
answer to the initial complaint.  Accordingly, Townsend claims that
jurisdiction in chancery court was lacking.  The chancery court
apparently denied Townsend's motion to dismiss (the order ruling on
the motion is not abstracted), which led to this appeal.
     Townsend's argument on appeal is the same: the remedy afforded
the Highway Commission under  27-67-304, authorizing removal of
encroachments, provides an adequate remedy at law.  That statute
reads in pertinent part: "No physical or functional encroachments
... or other structures or uses shall be permitted within the
right-of-way limits of state highways."  Ark. Code Ann.  27-67-304
(a) (Repl. 1994).
     As a general matter, equity jurisdiction exists only when the
remedy at law is inadequate.  See, e.g., Priest v. Polk, 322 Ark.
673, 912 S.W.2d 902 (1995); Walker v. First National Bank, N.A.,
317 Ark. 617, 880 S.W.2d 316 (1994); Bates v. Bates, 303 Ark. 89,
793 S.W.2d 788 (1990).  But the existence of a remedy at law does
not deprive the chancery court of jurisdiction unless such remedy
is clear, adequate, and complete.  McGehee v. Mid-South Gas Co.,
235 Ark. 50, 357 S.W.2d 282 (1962).  We determine jurisdiction from
the pleadings.  McCormac v. McCormac, 304 Ark. 89, 799 S.W.2d 806
(1990).
     We observe, as an initial matter, that Townsend's abstract is
flagrantly deficient because he fails to include the order of the
chancery court disposing of this issue.  See McGarrah v. McGarrah,
325 Ark. 81, 924 S.W.2d 453 (1996); Winters v. Elders, 324 Ark.
246, 920 S.W.2d 833 (1996).  Nevertheless, it is clear from the
abstract that Townsend broached the fundamental point of
jurisdiction to the chancery court.  It is further clear that this
court can consider subject-matter jurisdiction on its own motion. 
Tucker v. Lake View Sch. Dist. No. 25, 323 Ark. 693, 906 S.W.2d 295
(1996).  The issue then becomes whether the matter raised is one of
subject-matter jurisdiction.
     In Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986), we
concluded:
     [W]hen the issue is whether the chancery court has
     jurisdiction because the plaintiff lacks an adequate
     remedy at law, we will not allow it to be raised for the
     first time on appeal.  ...  [I]t is only when the court
     of equity is "wholly incompetent" to consider the matter
     before it will we permit the issue of competency to be
     raised for the first time on appeal.
Liles, 289 Ark. at 175, 711 S.W.2d  at 455-56.  We went on to say
that we will not raise the issue ourselves when the adequacy of the
legal remedy is in question, and we will not permit a party to
raise it on appeal if it was not first brought to the chancery
court's attention.
     Thus, the adequacy of a legal remedy does not render the
chancery court wholly without jurisdiction, and the issue of the
legal remedy must first be presented to the chancery court.  Here,
the issue was argued to the chancery court, according to the
abstract, but for two reasons we give it little credence.  First,
the abstract does not evidence that the question was resolved by
the chancery court.  The chancery court's order was not abstracted,
and we will not speculate about the chancery court's ruling.  Nor
will we require all seven justices to go to the record to determine
whether an order was entered.  We have stated many times of late
that there are seven justices and one record, and it is impossible
for the seven justices to examine the one record.  See, e.g.,
Winters v. Elders, supra.  Secondly, the issue was not timely
raised.  We do not view a general denial of an allegation of
inadequate remedy raised in the complaint in 1992 as the equivalent
of a jurisdictional contest or of a motion to transfer to circuit
court.  This litigation has been ongoing since April of 1992, and
the merits of this case were decided in Townsend I in 1993.  To now
question the adequacy of the legal remedy and the authority of the
chancery court to act at least two years after the case has been
decided at the appellate level strains the bounds of
reasonableness.
     By this decision, we are not suggesting that  27-67-304
authorizes self-help or that self-help under these facts
constitutes an adequate legal remedy.  We simply decide the issue
raised in this appeal on other grounds.
     Affirmed.