Kenneth and Sandy Lee v. Julia Konkel-Swaim

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION I

KENNETH AND SANDY LEE

APPELLANTS

V.

JULIA KONKEL-SWAIM

APPELLEE

CA01-40

November 28, 2001

APPEAL FROM YELL COUNTY CHANCERY COURT, DANVILLE DISTRICT

E-99-7

HONORABLE WILLIAM R. BULLOCK

AFFIRMED

This case involves a dispute between the appellants, Kenneth and Sandy Lee (the Lees), and the appellee, Julian Konkel-Swaim, an adjoining landowner, regarding Konkel-Swaim's easement over land owned by the Lees. The chancellor entered several orders in 1999 that in essence found that the Lees had interfered with Konkel-Swaim's use of the easement by committing certain acts, and ordered the Lees to both do and refrain from doing certain specified acts, including among other things, construction of fencing and cattle guards. This court dismissed the Lees' first appeal from one of the 1999 orders based on lack of finality in Lee v. Konkel-Swaim, 73 Ark. App. 429, 43 S.W.3d 767 (2001).1 The Lees again appeal, this time from a contempt order entered by the trial court on August 17, 2000, relating to their violation of the 1999 orders. They raise four points on appeal, none of which have merit, and we affirm.

On June 28, 1999, the Yell County Chancery Court entered an order declaring the rights of

the parties with respect to an easement owned by Konkel-Swaim over land owned by the Lees. The Lees' appeal from this order was dismissed because it was not a final, appealable order in that it did not dispose of all the rights between the parties. The order was amended and clarified on September 30, 1999. While the first appeal was pending, Konkel-Swaim filed a petition for contempt on May 10, 2000, claiming that the Lees were in violation of the June 28, 1999, order. After two more petitions for contempt and a counter-petition for contempt were filed, the Lees filed a motion to stay the contempt proceedings in this court on July 26, 2000, claiming that the chancery court had lost jurisdiction because the transcript on appeal had been lodged on October 12, 1999. An order finding Kenneth Lee, his two sons, and John Swaim in contempt was issued on August 17, 2000, and this court denied the Lees' motion to stay on September 11, 2000. The Lees challenge this finding of contempt in the present appeal.

The Lees first argue that the trial court lacked jurisdiction to punish them for contempt of its June 28, 1999, order because the order was on appeal and the transcript had been lodged. The Lees argue that the trial court lacked jurisdiction to proceed on any pleadings filed after October 12, 1999, the date on which the transcript was lodged with this court in their first appeal. The Lees assert that the issue is not whether the order should be enforced, but rather which court should enforce it. Konkel-Swaim contends that the trial court had jurisdiction pursuant to Ark. R. Civ. P. 62(a), and since this court ultimately denied the Lees' motion for stay, the trial court retained power to enforce its orders despite the pendency of an appeal.

Lack of subject-matter jurisdiction is a defense that may be raised at any time by either a party or the court, and it is a defect that is never waived by a failure to raise it at a particular point in a proceeding. Young v. Smith, 331 Ark. 525, 964 S.W.2d 784 (1998). A court that acts without subject-matter jurisdiction or in excess of its power produces a result that is void and cannot beenforced. Id.; West v. Berlin, 314 Ark. 40, 858 S.W.2d 97 (1993). However, a court having equity powers may be given jurisdiction to decide its own jurisdiction as any other court may be given such power. West, supra. A court having equity powers may also have the authority to preserve the status quo by way of an injunction. Id. If a court proceeds irregularly within its assigned jurisdiction, the remedy is by appeal or direct action to the erring court. Young, supra.

Chancery courts have the authority to issue or deny injunctive or other equitable relief. Young, supra. Once an appeal is docketed in this court, jurisdiction attaches, and we may direct that an order of the trial court be stayed pending a final determination on appeal. McCluskey v. Kerlen, 4 Ark. App. 334, 631 S.W.2d 18 (1982). Therefore, the trial court retains jurisdiction until the record is filed with the clerk and the appeal is docketed. Andrews v. Lauener, 229 Ark. 894, 318 S.W.2d 805 (1958).

The Lees rely on Andrews, supra, in support of their argument that once the transcript is lodged on appeal, jurisdiction vests in the appellate court and the trial court loses jurisdiction over the matter. However, the facts in Andrews are distinguishable from the case at bar. The Andrews trial court had quashed the appellant's motion to vacate the judgment that challenged its qualifications to preside over the case, on the ground that it was divested of jurisdiction by the appellant's filing a notice of appeal prior to the filing of the motion. The supreme court held that after a notice of appeal is filed the trial court retains jurisdiction until the record is filed and the appeal is docketed. However, the court determined its holding did not require the case to be reversed because the appellant's motion to vacate did not allege facts sufficient to put in issue the chancellor's qualifications. The present case involves the trial court's enforcement of its judgment after the record has been lodged, a matter which Andrews does not directly address.

The Lees' reliance on Ark. Code Ann. § 16-67-314 (Repl. 1999) is also misplaced. Ark. CodeAnn. § 16-67-314(d) states:

If the Supreme Court has acquired jurisdiction of a cause, but it is made to appear that the record is incomplete for want of documents...and the trial court has lost such jurisdiction, the Supreme Court...shall have the power to direct a writ to any clerk, reporter, or other person charged with the duty of preparing the matter in question and may require compliance with its discretionary orders.

This provision relates to correction of the record and does not limit or even address the trial court's power to enforce its orders pending appeal. In fact, the Lees cite no convincing authority in support of their argument that the trial court lost jurisdiction to enforce its order in this instance.

Ark. R. Civ. P 62(a) states that "unless otherwise ordered by the court, an interlocutory or final judgment in an action for an injunction...shall not be stayed during the period after its entry and until an appeal is taken or during the pendency of an appeal." Subsection (d) states that when an appeal is taken, "the appellant by giving a supersedeas bond may obtain a stay subject to exceptions contained in subdivision (a) of this rule." Rule 8 of the Civil Rules of Appellate Procedure states that a "supersedeas is a written order commanding appellees to stay proceedings on the judgment, decree, or order being appealed from and is necessary to stay such proceedings."

Although the appellate court may direct an order of the trial court be stayed pending a final determination on appeal, the better practice is that a motion to stay an order pending an appeal be first addressed to the trial court. McCluskey, supra. If the motion is denied, the trial court then may state its reasons, and if a subsequent motion is made to the appellate court, it may give due weight to the trial court's determination. Id. Ark. Sup. Ct. R. 8 concerns supersedeas bond upon stay of an order, but does not provide the standard by which to consider requests for a stay. Smith v. Denton, 313 Ark. 463, 855 S.W.2d 322 (1993); Goodin v. Goodin, 240 Ark. 541, 400 S.W.2d 665 (1966). However, the implication is that the appellate court has discretionary authority to issue a stay, and when considering a motion for stay, the court examines preservation of the status quo. Id.

The Lees filed a motion to stay in this court on June 26, 2000. This court denied the stay on September 11, 2000, citing Koroklo v. Koroklo, 302 Ark. 96. 787 S.W.2d 241 (1990), in which the supreme court declined to stay a part of the trial court's order concerning custody and visitation during the pendency of an appeal, but granted a stay of a sentence for contempt. The Lees' motion to stay was not granted, and their appeal was ultimately dismissed. Moreover, there is no evidence in the record before us that the Lees either sought a stay from the trial court or posted a supersedeas bond in their first appeal. Consequently, we cannot say that the trial court was without authority to enforce its June 28, 1999, order when it found the Lees in contempt in August 2000.

The Lees next argue that the portions of the contempt order filed August 17, 2000, directing Kenneth Lee to remove a cattle guard that had been installed in or near Konkel-Swaim's easement and to restore the condition in that area to a previous status quo were erroneous because the cattle guard was not built at a place precluded by the court's injunction and that the findings required for such preclusion were not supported by the weight of the evidence. They ask that this portion of the order be vacated, and the finding of contempt reversed.

When a person is held in contempt for failure to abide by a court's order, the reviewing court will not look behind the order to determine whether it is valid. Johnson v. Johnson, 343 Ark. 186, 33 S.W.3d 492 (2000). The fact that an order may be erroneous does not excuse disobedience on the part of those who are bound by its terms until the order is reversed. Id. When an appellant claims error in a court's decision, the appropriate procedure is to obey theorder and pursue a remedy through an appeal or direct action in the erring court, rather than through an appeal from the order finding the appellant in contempt for its violation. Young, supra.

The Lees claim that the June 28, 1999, order, which was included as an appendix in the Lees' brief, did not prevent the construction of the cattle guard, and even if the order can be so construed, they built the cattle guard on the county road right-of-way. Konkel-Swaim contends that regardless of whether the cattle guard was placed in the county road easement, the trial court prohibited the building of any cattle guard in its June 28, 1999, order, because the easement was intended solely for ingress and egress. Additionally, Konkel-Swaim claims that the Lees should have sought court permission before installing the cattle guard.

The June 29, 1999, order states in paragraph VI that the purpose of the easement is for ingress and egress, and that the Lees' use of the easement to drive cattle would result in an unreasonable interference with its intended purpose. The order further states, "[s]ince the cattle will not be on the easement the Defendants' [Lees'] request to place cattle guards on the easement should be and is hereby denied." The order clearly states that the building of cattle guards is prohibited and that cattle would not be allowed on the easement. It is clear that the Lees purposely ignored a direct order of the court by placing the cattle guard at the end of Konkel-Swaim's easement. Therefore, we affirm the trial court's rulings of contempt with respect to the building of the cattle guard.

The Lees next argue that the portion of the August 17, 2000, order requiring Kenneth Lee to remove certain sections of a metal fence he had begun building was erroneous because neither the act of fence building nor the location selected for the fence was precluded by the court's injunction, and the trial court's findings to that effect were not supported by the weight of theevidence. The Lees contend that the metal fence that they built was not precluded by the court's injunction, stating, "[a] review of that order reveals no mention of a prohibition against fence building." The Lees further argue that the testimony is clear that the fence was built more than twenty feet and six inches from the opposite fence enclosing the twenty-foot easement, and thus, the fence building took place outside the easement area. Konkel-Swaim asserts that the Lees "attempted to be creative in violating the chancery judge's order by allegedly measuring the width of the drive and relocating the fence inches inside the drive to further harass the appellees."

The September 30, 1999, order, that amended and clarified the trial court's June 28, 1999, judgment, specifically stated that the boundary-line fence owned by the parties and lying parallel to the easement could only be moved or modified after a hearing for good cause shown. The Lees rebuilt the fence without first seeking court permission, and were clearly in violation of this order. We affirm the trial court's order with respect to the welded metal fence.

The Lees finally argue that the portion of the contempt order filed August 17, 2000, directing them to pay an attorney's fee of $2,956.94 is not enforceable. They assert that the fee was based in part on work done by Konkel-Swaim's counsel to secure relief improperly granted by the trial court and that there is no way to determine which portion of the fee was for work properly done. However, because we have determined that the relief granted by the chancellor was proper, this argument must fail. It is within the inherent power and jurisdiction of a court of equity to allow attorneys' fees in contempt proceedings. Payne v. White, 1 Ark. App. 271, 614 S.W.2d 684 (1981); C.R.T., Inc. v. Brown, 269 Ark. 114, 602 S.W.2d 409 (1980). Therefore, we affirm the grant of attorney's fees as a proper exercise of the discretion of the chancellor.

Affirmed.

Jennings and Bird, JJ., agree.

1 On May 25, 2001, the Lees petitioned the supreme court for review of their first appeal; however, their petition was denied on June 28, 2001.