Rex Jones and Sharon Jones v. Tim Byrd, Angela Byrd, and Randolph County, Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION IV

REX JONES and SHARON JONES

APPELLANTS

V.

TIM BYRD, ANGELA BYRD and

RANDOLPH CO., ARKANSAS

APPELLEES

CA 00-783

MARCH 21, 2001

APPEAL FROM THE RANDOLPH

COUNTY CHANCERY COURT

[NO. E-99-235]

HONORABLE THOMAS L.

HILBURN, CHANCERY JUDGE

AFFIRMED

On October 6, 1999, appellants Rex Jones and Sharon Jones filed suit in chancery court against appellees Tim Byrd, Angela Byrd, and Randolph County. Appellants petitioned for a declaratory judgment, asking that a road across their property be declared not to be a county road and to enjoin the Byrds from trespassing on the road or removing gates from the road. In its answer, Randolph County asserted that the road in question was a county road and had been for several years. In a separate answer filed by the Byrds, it was reiterated that the road at issue was a county road. Alternatively, the Byrds claimed that they had a written easement, and they counterclaimed for a restraining order preventing the appellants from interfering with their use of the road.

In a subsequent pleading, the appellants added as defendants the Randolph County Sheriff and members of the Maynard School Board. The petition sought to prevent thesheriff from trespassing on appellants' property and alleged that the sheriff had caused his deputies to trespass on the property in furtherance of a personal vendetta. The petition further alleged that the Maynard School Board included the road at issue in its school bus route, and requested an injunction against any further use of the road in that regard.

After a trial, the chancery court denied appellants' petitions. In its order, the trial court announced:

The Court finds for the roadway in question there is a county court order dated the 20th day of July, 1995, and such court order is not subject to collateral attack in this court, and the petition herein insofar as it attempts to collaterally attack such order is hereby dismissed.

There is insufficient evidence to indicate that Randolph County, Arkansas has in any way interfered with the alleged cattle guards of the petitioners and no injunction should issue against Randolph County or the Sheriff of Randolph County.

All other claims of the Petitioners herein are meritless.

The Joneses now appeal, arguing that the chancery court erred in not allowing either a collateral or direct attack on the county court judgment. In addition, they contend that the chancery court erred in denying injunctive relief regarding their cattle guards and gates. We find no error and affirm.

Donald Wayne Griggs was the first to testify at trial. He stated that he delivers residential propane and has used the road at issue for the past three years. Mr. Griggs testified that the cattle guards on the road had always been maintained, but that recently a load of gravel had been pushed on top of them so that they were completely covered.

Janice Mock, County Clerk of Randolph County, testified that she has held this position for four months. She stated that in her files is a "notice" indicating that on October12, 1989, a hearing was held pertaining to establishing, widening, and closing roads in Richardson Township, which is where the subject road is located. Although the records reflected that a meeting was held, there were no minutes or other report in the file.

Jim Andrews was the Randolph County Judge from 1985 to 1994. He stated that he was presiding at the time the hearing was held in 1989. Mr. Andrews stated that he had traveled over the road at issue and, during his tenure as judge, he was called out several times to look at the road to see if it could be improved.

Mike Davis, the current Randolph County Judge, also testified. He stated that he has held the position since the beginning of 1999. A copy of the notice for a hearing concerning roads in Richardson Township, as printed in the Pocahontas Star Herald, was admitted into evidence and, according to Judge Davis, the road across appellants' property is marked on the map as an established county road. With respect to the cattle guards on the road, Judge Davis testified that the superintendent of schools advised that the only thing preventing access by a school bus to pick up the Byrd children was an unsafe cattle guard. As a result, the cattle guard was filled. Judge Davis stated that the cattle guard was in disrepair, was "pretty much filled anyway," and was not going to hold any cows even before being filled by the county.

Mr. Jones testified on his own behalf, and he stated that on September 28, 1999, the county filled the cattle guards with clay and gravel. He indicated that, prior to that time, the county had never put gravel on the road. Mr. Jones stated that he has owned his propertysince 1994 and was never given notice that the road was a county road until 1997. He further stated that the first time he saw a school bus on the road was in October 1999.

The July 20, 1995, county court order referenced in the chancery court's order was entered nunc pro tunc and purported to relate back to hearings held in 1989, which included the hearing regarding the roads in Richardson Township. The order recites:

Now on this 20th day of July, 1995, comes on to be heard the matter of County Roads for Randolph County, Arkansas, and after publication of Notice in each Township and hearings held for each Township, this Court being well and sufficiently advised in the premises finds:

1. That all roads set forth and notices as amended upon proper hearings and placed in the file of this cause are hereby designated as county roads of Randolph County, Arkansas, with rights-of-way of not less than 50 feet and greater than 50 feet as designated by any prior Court Order.

2. That this Order is Nunc Pro Tunc and shall not [a]ffect any road designated as a road from or after January 1, 1980.

3. That any road not so shown and not established subsequent to January 1, 1980, is hereby determined to be closed and abandoned by Randolph County as a county road.

4. That this Order is Nunc Pro Tunc and shall be effective as of the date of entry hereof.

For its first point on appeal, appellants argue that the chancery court erred in refusing to allow a collateral or direct attack of the July 20, 1995, order. During the trial, appellants argued to the chancery court that there were procedural deficiencies in the procurement of the nunc pro tunc order, but the chancery court stated, "I'm not going to let you attack the order at this time." The appellants submit that this was error and further contend that the road at issue was not properly established as a county road because there were no viewers appointed and there was no petition, hearing, or notice as required by law. Appellantsfurther assert that there were deficiencies because there was a six-year lapse of time between the purported hearing and the issuance of a written order, and the order was signed by a different judge than the one who presided over the meeting. Appellants urge this court to reverse and remand for development of these issues.

In the case at bar the appellants took no appeal from the July 20, 1995, order. However, it is not necessary to appeal from a void order because it never became effective, and a void order is subject to collateral attack. Mayberry v. Flowers, 69 Ark. App. 307, 12 S.W.3d 652 (2000). The appellants attempted to collaterally attack the nunc pro tunc order through its petition filed in chancery court more than four years later. But a judgment cannot be collaterally attacked unless it is void on the face of the record or the rendering court is shown to have lacked subject-matter jurisdiction. Rowland v. Farm Credit Bank, 41 Ark. App. 79, 848 S.W.2d 433 (1993). In the instant case the nunc pro tunc order was not void on its face and the county court had jurisdiction pursuant to Ark. Code Ann. § 14-298-101 (1987), which provides:

All public roads and highways shall be laid out, opened, and repaired agreeably to the provisions of this chapter. The county court of each county in this state shall have full power and authority to make and enforce all orders necessary as well for establishing and opening new roads as for changing and vacating any public road or part thereof.

Where a court has jurisdiction of the subject matter, its judgment, even if erroneous, is conclusive so long as not reversed, and cannot be attacked collaterally. Tweedy v. Counts, Ark. App. , S.W.3d (March 21, 2001); Rowland v. Farm Credit Bank, supra. Therefore, the chancery court was correct in refusing to allow the appellants to attack the July 20, 1995, order.

The appellants' remaining argument is that the trial court erred in denying injunctive relief regarding their cattle guards and gates. However, we find no merit to this argument. It is undisputed that the cattle guards were filled by the county, but the testimony of Judge Davis indicated that the cattle guards were in disrepair, were already substantially filled, and could not be used for their intended purpose. Based on this evidence, the chancery court ruled that there was insufficient evidence that the county interfered with the cattle guards and that, therefore, no injunction should issue against the county or county sheriff. In reviewing the chancery court's findings, we will not reverse unless we find that they are clearly erroneous, and we give deference to the superior position of the chancery court to judge the credibility of witnesses. Ark. R. Civ. P. 52(a); Riddick v. State, 313 Ark. 706, 858 S.W.2d 62 (1993). From the evidence presented, we cannot find that the chancery court clearly erred in refusing to grant an injunction against the county.

Affirmed.

Bird and Roaf, JJ., agree.