James Gillam v. Phillip C. Wyrick and Esquire Marble Company

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

JAMES GILLAM

APPELLANT

V.

PHILLIP C. WYRICK and ESQUIRE

MARBLE COMPANY

APPELLEES

CA 04-86

FEBRUARY 2, 2005

APPEAL FROM THE SALINE

COUNTY CIRCUIT COURT

[NO. CV02-778T, CA02-303-1]

HONORABLE ROBERT WILSON

GARRETT, JUDGE

REVERSED AND DISMISSED IN

PART; REVERSED AND REMANDED

IN PART

John B. Robbins, Judge

This appeal concerns the use of a road commonly known as Thompson Farm Road in Saline County and the validity of a 1995 Saline County Court order vacating the county status of that road. We reverse and dismiss in part, and we reverse and remand in part.

Appellant James Gillam appeals the September 30, 2003 order of the Saline County Circuit Court that dismissed his April 4, 2002 complaint against appellees Esquire Marble Company and its owner Phillip C. Wyrick (collectively "Esquire"). Appellant is the owner of eighty acres of real property in Saline County, and one means of access to that property is via Thompson Farm Road. Part of Thompson Farm Road is contained within real property owned by Esquire. The complaint sought a declaratory judgment and an injunction against Esquire so that appellant and the public could continue to use Thompson Farm Road, which appellant believed was a county road, and thus for public use. Appellant asserted in the complaint that an earlier successful attempt in 1995 by Esquire to vacate the county road1 was void for lack of jurisdiction. Thus, appellant asked the circuit court to declare the road a county road, to restrain and enjoin Esquire from interfering with his or the public's right to use the road, and to order removal of any barriers to the use of the road.

On the same date he filed his complaint in circuit court, appellant filed a "Motion To Set Aside Order" in the county court. Appellant argued that the county court should set aside its 1995 order because it lacked jurisdiction to enter the order vacating the status of the road. Appellant asserted that Esquire had failed to comply with the statutory requirements found in Ark. Code Ann. § 14-298-101 et seq. to have (1) an adequate legal description of the road, and (2) the minimum number of petitioners to submit the request to vacate the road.

Esquire answered the circuit court complaint on April 25, 2002, by stating that in August 1995, the county court of Saline County had granted its petition2 to declare that part of the road that was contained within its deed to be vacated and no longer a county road. Esquire filed motions to dismiss in both cases on that same date, April 25.

The Motion to Set Aside filed in county court was denied by the county court on July 19, 2002, and appellant filed a notice of appeal from that denial. The parties agreed to consolidate the proceedings, which was approved by an order of the circuit court. The matter was heard in circuit court on July 28, 2003. After both attorneys submitted stipulated exhibits, the sole witness was appellant Gillam. Appellant testified that he acquired his Saline County property from a trust after the 1995 order vacating the county's ownership of the road. Appellant was not a resident of Arkansas and did not frequent his Arkansas property, but he believed that his neighbor Esquire had placed a gate across the road. Appellant wanted use of Thompson Farm Road for access to the middle of his property, even though he had other means of ingress and egress, and argued that in any event it was a public road.

After appellant's testimony, Esquire orally moved for judgment as a matter of law and dismissal of the complaint in circuit court and the appeal from county court, arguing that the appeal of the county court order was untimely and further that appellant had no standing to complain because he was not a landowner at the time of the 1995 order. The judge requested and received post-hearing briefs, considered the respective arguments, and rendered the judgment on appeal. The trial judge found that it had jurisdiction over the parties and the subject matter and that he would grant Esquire's motions, resulting in affirming the appeal from county court and dismissing the complaint for declaratory and injunctive relief. The trial judge based his decisions upon (1) a nearly seven-year lapse of time since the 1995 order vacating the road, and (2) appellant's lack of standing because the 1995 order was entered prior to appellant taking title to his property. The trial judge declared Esquire's counterclaim moot. Appellant filed a timely notice of appeal to our court.

Appellant on appeal continues to challenge the jurisdiction of the county court to vacate the county road, again stating that any order of any court that followed was likewise void for lack of jurisdiction. Despite Esquire's arguments to the contrary, we agree with appellant that the county court order vacating the county road is void.

Subject-matter jurisdiction cannot be waived and cannot be invoked by consent of the parties. Ark. Dep't of Human Servs. v. Estate of Hogan, 314 Ark. 19, 858 S.W.2d 105(1993). A court has a duty to determine if it has subject-matter jurisdiction of the case before it. Skelton v. City of Atkins, 317 Ark. 28, 875 S.W.2d 504 (1994). When the trial court lacked subject-matter jurisdiction, the appellate court also lacks jurisdiction. First Pyramid Life Ins. Co. v. Reed, 247 Ark. 1003, 449 S.W.2d 178 (1970). Accordingly, the question of subject-matter jurisdiction is one that this court is obligated to raise on its own even if the parties do not raise it. Id. See also Priest v. Polk, 322 Ark. 673, 912 S.W.2d 902 (1995).

Appellant argues that there was no jurisdiction to vacate this county road in the absence of strict statutory compliance. The authority and parameters for establishment, alteration, and vacation of county roads is found in Chapter 298 of Title 14 of the Arkansas Code. Arkansas Code Annotated section 14-298-103(a) (1987) requires that "[a]ll applications for laying out, viewing, reviewing, altering, or vacating any county road shall be by petition to the county court, signed by at least ten (10) freeholders of the county." This requirement is reflected again in section 14-298-117(1):

(a) When any county road, or any part of any county road, shall be considered useless, any ten (10) citizens residing in that portion of the county may make application by petition agreeable to § 14-298-124 to the county court to vacate the road, setting forth in the petition the reason why the road ought to be vacated, which petition shall be publicly read at a regular session of the county court, with the proof of notice and publication required by this chapter. No further proceedings shall be had thereon until the next regular session of the court.

Appellant asserts that there was only one petitioner herein, Esquire, to abandon the county road, and further that Esquire's petition does not contain a signature by its owner. Absent strict compliance, the order vacating was void for want of jurisdiction, as was the circuit court order that affirmed the denial of his motion to set aside the void order. In addition, appellant states that there is no legal support for the idea that somehow the passage of time confers jurisdiction where it did not exist in the first place.

Esquire responds by arguing that appellant has failed to provide an abstract and brief sufficient to permit appellate review, has failed to demonstrate clear error regarding the finding of laches resulting in dismissal of his complaint for injunctive relief, and has failed to show anything other than harmless error in the exercise of jurisdiction, to which he submitted when he filed his action for declaratory relief in circuit court. In addition, Esquire states that appellant has failed to demonstrate that he has standing to challenge the county court's decision to vacate the county road. In the alternative, Esquire requests that, should we decide to reverse, this appeal be remanded to circuit court for resolution of its counter-claim against appellant to have the road declared private and to have an injunction issued against appellant's use of the private road.

We hold that appellant is correct that the county court, and consequently the circuit court on appeal, lacked jurisdiction to alter the status of the county road. Our analysis follows, but we first dispose of Esquire's argument that appellant lacks standing. In another appeal from a county court order vacating a public road, following a decision of the circuit court affirming the county court, the appellee therein also argued that the appellant lacked standing. Our supreme court held that "a citizen and a taxpayer has a right to be made a party to the proceedings in the county court and to appeal from an adverse ruling of the county court relative to the vacation, alteration or establishment of roads." Hill v. McClintock, 175 Ark. 1059, 1062, 1 S.W.2d 564 (1928). Moreover, jurisdiction is an issue we are duty-bound to raise on our own. See Skelton v. City of Atkins, supra.

With regard to statutory compliance, appellant cites to First Pyramid Life Ins. Co. v. Reed, 247 Ark. 1003, 449 S.W.2d 178 (1970), which is particularly instructive. In that appeal, Reed asked our supreme court to dismiss the appeal because First Pyramid failed to timely perfect its appeal to circuit court, prior to appealing the circuit court's resulting order to the supreme court. The justices concluded that it was not necessary to determine whether this omission was fatal to the circuit court's jurisdiction because "[w]hen the court in which the action is filed has no jurisdiction, the appellate court should dismiss the whole case for want of jurisdiction." Id., 247 Ark. at 1005. The First Pyramid case held that by statute a petition to open a county road must be signed by at least ten freeholders of the county, and that the county court can only acquire jurisdiction of a proceeding when there is strict compliance with that requirement. Because only six freeholders signed the petition, strict compliance with the statute was lacking. Consequently, the supreme court declared that "neither the county court, the circuit court, nor the Arkansas Supreme Court had jurisdiction to pass upon the merits of the case." Consequently, the lower court proceedings were reversed and dismissed.

Our court considered a similar appeal in Perry v. Lee County, 71 Ark. App. 47, 25 S.W.3d 443 (2000), concerning Perry's objection to a petition seeking to vacate a county road. Although only six landowners filed the petition, the county court entered an order vacating the road on May 28, 1998. Appellant filed a notice of appeal in the county court on November 25, 1998, and filed a notice of appeal in the circuit court on December 8, 1998. Perry argued to the circuit court that only six freeholders signed the petition to vacate the county road, less than the ten specifically required by Ark. Code Ann. § 14-298-103(a) (1987). The circuit court ruled that Perry's appeal to the circuit court was untimely, and further ruled that the county court properly vacated the road pursuant to the relevant statutes. We reversed and dismissed, citing back to First Pyramid, holding that:

[B]ecause the petition to vacate the road did not contain the signatures of at least ten freeholders of the county, there was not strict compliance with the statutes. Again, as in First Pyramid, the county court can only acquire jurisdiction of a proceeding under these sections when there is strict compliance with the requirements of the statutes relating to the signing of the petition. Because of the failure to strictly comply with the applicable statutes, the county court did not acquire jurisdiction of the case, and neither the circuit court nor this court can pass upon the merits of the case. Therefore, we reverse and dismiss.

Id., 71 Ark. App. at 49.

Stated another way, the circuit court's jurisdiction was dependent upon the county court's jurisdiction, such that the circuit court could render only such a judgment as the county court could have rendered. See First Pyramid, supra.

Both the First Pyramid case and the Perry case mandate our holding today. In the county court proceeding, the county court lacked jurisdiction to vacate Thompson Farm Road as a county road, the circuit court lacked any authority to affirm that conclusion, and we lack jurisdiction to pass upon the merits of the status of Thompson Farm Road. We reverse and dismiss that part of the order on appeal. In contrast, the circuit court had jurisdiction to consider appellant's complaint in circuit court for declaratory and injunctive relief against Esquire. With regard solely to the dismissal of appellant's circuit court complaint, we reverse and remand.

Reversed and dismissed as to the county court proceeding; reversed and remanded as to the petition for declaratory judgment and injunctive relief.

Gladwin and Neal, JJ., agree.

1 Thompson Farm Road was declared a county road by Saline County Ordinance 92-36.

2 In Esquire's petition, Esquire claimed that the part of the road that was located within Esquire's property had not been used publicly for ingress or egress, other than with the permission of Esquire, in excess of seven years. In pursuit of its petition, Esquire published notice of its petition in the Benton Courier, a newspaper circulated county-wide, in the proper manner and amount of time to give public notice of its request to the county court.