Sanyo Manufacturing Corp. v. Forrest City Grocery Co.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CA04-748

May 25, 2005

SANYO MANUFACTURING CORP. AN APPEAL FROM ST. FRANCIS COUNTY

APPELLANT CIRCUIT COURT

[NO. E2000-410]

v.

HONORABLE BENTLEY STORY,

FORREST CITY GROCERY CO. CIRCUIT JUDGE

APPELLEE

AFFIRMED

Larry D. Vaught, Judge

Appellant Sanyo Manufacturing Company (Sanyo) and appellee Forrest City Grocery Company (FCG) operate businesses in the Forrest City industrial district. In 2000, Sanyo claimed that three roads in the district-Sanyo Road, Corporation Drive, and Commerce Drive-were its private property, and it placed guard shacks on the roads to restrict public access. FCG sued Sanyo, claiming that both it and the general public had acquired a prescriptive easement over the roads. Following a bench trial during which numerous citizens testified that the roads had been subject to extensive public use for thirty to forty years, the circuit judge granted a public easement over the roads and ordered Sanyo to remove the guard shacks. The court also denied Sanyo's counterclaim against FCG to recover money that Sanyo had spent on road maintenance. For reasons explained hereafter, we affirm.

On October 13, 2003, the trial judge issued a nineteen-page letter opinion in which he recited the substance of all witness testimony and documentary evidence adduced at trial. Included among those documents was a 1963 Forrest City Industrial Development Corporation (FCIDC) lease of industrial-district property to Sanyo's predecessor, Warwick Industries. The lease provided that the FCIDC would construct a plant for Warwick and improve or construct certain roadways in the area. The lease further declared that the parties understood that the land for such roads was to be "dedicated or to be caused to be dedicated to the appropriate authority or authorities by the relevant parties hereto." Based on the lease and the other documents and witness testimony, the judge concluded that a public prescriptive easement existed across the three roads, that Sanyo's counterclaim should be denied, and that:

[c]ontractually, Warwick agreed with the [FCIDC] that it would do whatever [was] necessary to dedicate the roads built by the city to the city. The city built the roads and the roads should have been dedicated. Warwick agreed to do this. Sanyo is bound by this agreement.

On December 4, 2003, the court entered a "Final Order and Permanent Injunction" ruling-as it had in the letter opinion-that a public prescriptive easement existed across the three roads; that Sanyo must remove the guard shacks; and that Sanyo's counterclaim should be denied. However, in an apparent response to Sanyo's motion asking the court to define the width of the easement, the court additionally ruled that:

Sanyo's predecessor in title, Warwick, agreed contractually with the [FCIDC] that it would do whatever was necessary to dedicate the roads to Forrest City. The roads have been dedicated. Warwick agreed to do this. Sanyo is bound by this agreement. The City accepted the roads. A copy of this order shall be provided to the City regarding its position concerning the future repairs, resurfacing and maintenance of the roads. As dedicated city streets, the roads are subject to the ordinances of the City of Forrest City. The Court finds that the roads shall be designated as collector streets, with no parking, and having a 50 foot right of way, pursuant to Forrest City Ordinance Number 16-49, Chapter VIII, Subsection A.

(Emphasis added.) The emphasized portions reveal that-unlike the court's letter ruling, which stated that the roads should have been dedicated-the final decree stated that the roads had in fact been dedicated and accepted by the city.

Sanyo appeals from the above order and argues that: 1) FCG lacked standing to pursue a prescriptive easement on behalf of the general public; 2) there was insufficient evidence of a public prescriptive easement; 3) the trial court had no jurisdiction over Sanyo's counterclaim in the absence of a joinder of all heavy-vehicle users of the roadways. Sanyo has not appealed the trial court's ruling that the roads were dedicated to the public. FCG contends that, because that independent basis for the court's ruling has been left unchallenged by Sanyo, the trial court's order must be affirmed. We agree.

Where a trial court bases its decision on two or more independent grounds and the appellant attacks less than all of those grounds on appeal, we will affirm the trial court's ruling. See Pugh v. State, 351 Ark. 5, 89 S.W.3d 909 (2002); Pearrow v. Feagin, 300 Ark. 274, 778 S.W.2d 941 (1989); Moore v. Mueller Indus., ___ Ark. App. ___, __ S.W.3d __ (Nov. 10, 2004); Camp v. State, 66 Ark. App. 134, 991 S.W.2d 611 (1999). That rule is particularly applicable under the circumstances of this case because, even if we were to agree with Sanyo's argument that a public prescriptive easement should not have been granted, our ruling would have no practical effect. A dedication of a street, in essence, creates an easement in the public. See Ark. State Hwy. Comm'n v. Sherry, 238 Ark. 127, 381 S.W.2d 448 (1964); see also City of Sherwood v. Cook, 315 Ark. 115, 865 S.W.2d 293 (1993) (holding that a dedication is an owner's appropriation of property to its intended use and its acceptance by the public); Black's Law Dictionary 442 (8th ed. 2004) (defining dedication as a donation of land or creation of an easement for public use). Similarly, any ruling we might make regarding Sanyo's argument that certain heavy-vehicle users should have been joined in its counterclaim would have no practical legal effect; the court ruled that the roads upon which those users traveled were dedicated to the public.

Sanyo's counsel candidly admitted during oral argument that Sanyo did not challenge the trial court's ruling on dedication because counsel simply failed to notice that the ruling was contained in the court's order. Sanyo argues, however, that its oversight was understandable given that the case was "tried as a prescriptive easement case." We disagree with Sanyo's characterization. Our review of the record reveals that, while the case was tried primarily on the prescriptive-easement theory, the issue of dedication was also asserted by FCG as a basis for relief. FCG argued in its post-trial brief that the roads had in fact been dedicated, citing the relevant portions of the 1963 lease, the city's acceptance of the assignment of the lease via a city ordinance, and testimony regarding the city's paving and maintenance of the roads. When Sanyo's post-trial brief failed to respond to that argument, FCG, in its reply brief, cited Sanyo's failure to address the matter and declared that "[t]his very issue, the dedication of the streets, is dispositive of this entire case."

Sanyo further claims that it failed to notice the trial court's ruling on dedication because the court's final order differed from its letter opinion. We see no reason why Sanyo should not be charged with notice of the order's contents. Sanyo filed a timely notice of appeal from the order indicating that it was aware of its entry and had an opportunity to examine it. Further, it appears that the order's language regarding dedication came about as the result of Sanyo's asking the court to define the width of the public easement. A reading of the order shows that the same paragraph in which the court declared that the roads were dedicated also recited that the roads should have a fifty-foot right-of-way.

Finally, Sanyo contends that there was simply no evidence in this case that the roads had actually been dedicated. This argument comes too late, having been made for the first time in Sanyo's reply brief and at oral argument. Our appellate courts do not consider arguments raised for the first time in reply briefs or at oral argument. See Farm Bureau Mut. Ins. Co. v. David, 324 Ark. 387, 921 S.W.2d 930 (1996). If Sanyo wished to challenge the trial court's ruling on dedication it was bound to do so in its opening brief. Because that was not done and because that ruling established an independent, alternative basis for the court's decision, we must affirm.

Affirmed.

Bird and Griffen, JJ., agree.