Bell v. Hoofman
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Cite as 2010 Ark. App. 377
ARKANSAS COURT OF APPEALS
DIVISION III
No. CA09-434
WILLIAM DOUG BELL
APPELLANT
V.
JERRY W. HOOFMAN & SHIRLEY F.
HOOFMAN, husband & wife; ERICH
PRIEN & DELORES DEVITT PRIEN,
husband & wife; PAUL L. MONZINGO
& DELORES A. PRIEN, brother & sister;
JAMES T. HENDRICKS & SHIRLEY J.
HENDRICKS, husband & wife;
SHIRLEY I. HOOFMAN, individually &
as surviving spouse of STANLEY
HOOFMAN, deceased; VIRGIL RAY
HOOFMAN & ROSE MARY
HOOFMAN, husband & wife; VIRGIL
HOOFMAN & ANNA JANE
HOOFMAN, husband & wife; DANIEL
BROWN HOOFMAN & HELEN
HOOFMAN, husband & wife; JAMES R.
WILLIAMS & TERRY K. WILLIAMS,
husband & wife; LISA KAY FAGAN, a
single person; and CHARLES PORTER
DAUGHERTY
APPELLEES
Opinion Delivered May
5, 2010
APPEAL FROM THE WHITE
COUNTY CIRCUIT COURT
[NO. CV2008-386]
HONORABLE THOMAS M.
HUGHES, JUDGE
REVERSED AND REMANDED
JOSEPHINE LINKER HART, Judge
William Bell brings this appeal from the orders of the White County Circuit Court
dismissing his appeal from county court on the basis that it was barred by the doctrines of res
Cite as 2010 Ark. App. 377
judicata and law of the case. We reverse and remand for trial de novo.
In August 2001, appellant1 filed a petition in White County Court pursuant to Ark.
Code Ann. § 27-66-401 (Repl. 1994),2 asserting that he was landlocked and seeking a road
across the lands of Virgil Hoofman. There was no response by Hoofman.
On July 9, 2002, appellant filed another petition in the same county court case against
appellees Jerry Hoofman and Shirley Hoofman. The petition again alleged that appellant was
without access to his land and sought a road pursuant to section 27-66-401. The Hoofmans
filed a motion to dismiss appellant’s petition, asserting that after the adoption of Amendment
80 to the Arkansas Constitution, the county court no longer had jurisdiction over road
matters. The motion also asserted that appellant failed to comply with the statutory
requirements.
The county court conducted a hearing in February 2003. In April 2003, the county
court appointed three viewers, and each viewer later filed separate reports stating that
appellant was landlocked and that there were two possible ways to access his property. The
first route was over the Hoofman property. The second route was over property owned by
appellee Erich Prien. The viewers believed that the better route was over Prien’s property.
1
Houston Bell was also listed as a petitioner. It appears that appellant purchased the interest
of Houston Bell and became sole owner of his property.
2
Sections 27-66-401 through 27-66-405 were extensively amended in 2009. However, the
amended version of the statute did not become effective until July 31, 2009. See Op. Ark. Att’y Gen.
No. 90 (2009). Because the amended version was not in effect at the time the circuit court entered
its orders from which this appeal arises, we cite to the older version of the statute.
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On April 23, 2003, the county court issued a letter opinion deciding that appellant was
entitled to access his property by a road across Prien’s property. The letter opinion bore no
file marks. Neither the viewers’ reports nor the court’s letter opinion addressed the issues of
a legal description for the road or the damages to Prien for the taking of his property.
On March 18, 2005, appellant amended his petition in county court, naming several
other adjacent land owners as defendants.3 The petition recounted the history of the litigation
up to that point and alleged that no formal order had been entered by the county court and
that the newly-named defendants should have an opportunity to be heard on the issue of the
route to be chosen.
Several of the adjacent landowners named in the amended petition filed responses
stating that they should not be included in the case. Other landowners filed responses seeking
to have the petition dismissed on grounds such as failure to state facts upon which relief could
be granted or that it was barred by res judicata. On April 22, 2005, the county court entered
an order incorporating its April 2003 letter opinion. Appellant timely appealed the decision
to circuit court.
In circuit court, appellant filed a petition on appeal that asserted that appellant’s
property had been in his family since 1919, that his predecessors had obtained access to the
property over property owned by Jerry and Shirley Hoofman, that the Hoofmans had denied
3
Appellant’s previous attorney had died in 2004. The amended petition was filed by present
counsel.
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him access, and that he was therefore landlocked. The petition prayed for an order
establishing a private road pursuant to the statutory scheme and for damages. Appellant later
amended his petition to assert that he was entitled to a prescriptive easement across the
property owned by Jerry and Shirley Hoofman. This amended petition sought a declaratory
judgment that appellant was entitled to a prescriptive easement.
On May 25, 2007, the circuit court entered an order dismissing appellant’s appeal from
county court. The court ruled that the county court order was not final in that it did not
include a legal description for the proposed road or an assessment of damages for the land to
be taken for the road. The court also found that it was improper of appellant to include a new
cause of action for a prescriptive easement. The court, therefore, dismissed that claim. The
circuit court later entered an amended order stating that all of appellant’s claims were
dismissed, including the appeal from county court, the action seeking a declaratory judgment
and an injunction, and the prescriptive-easement claim.
After the dismissal in circuit court, appellant returned to county court. He filed an
“Amended Petition and Complaint for Declaratory Judgment, Confirmation of Prescriptive
Easement, and Mandatory Injunction” on June 12, 2007, with the same docket number as
the earlier case. Appellees again filed several motions to dismiss. The basis of the various
motions to dismiss was that appellant’s petition was barred by res judicata and that the county
court lacked jurisdiction to grant a declaratory judgment or a mandatory injunction.
On June 25, 2008, the county court entered a “Final Order” on appellant’s petition.
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The court found that it was not necessary for appellant to obtain a road pursuant to the
statutory scheme because he could obtain an easement by necessity in circuit court. The court
noted that it would entertain another petition by appellant if the circuit court ruled in a
manner that left appellant without access to a public road from his property. Appellant timely
appealed to the circuit court on July 21, 2008.
On July 23, 2008, appellant filed a “Petition On Appeal From Final Order” with the
circuit court. Several motions to dismiss were filed, all on the basis that the petition was
barred by res judicata.
On February 4, 2009, the circuit court entered its order dismissing all of appellant’s
claims for relief with prejudice. The court found that the parties and issues were substantially
similar to the issues that were dismissed by the circuit court in June 2007. On February 23,
2009, the circuit court issued a second order of dismissal in which it made it clear that the
basis for the dismissal was the law-of-the-case doctrine and res judicata. This appeal followed.
We agree with appellant that this case must be reversed and remanded for trial de
novo. A case on appeal from a county court to a circuit court is tried de novo by the circuit
court as other cases at law. Ark. Code Ann. § 16-67-207 (Repl. 2005); Bowden v. Oates, 248
Ark. 577, 452 S.W.2d 831 (1970). In Batesville v. Ball, 100 Ark. 496, 140 S.W. 712 (1911),
the supreme court said:
When a cause is appealed from the county court to the circuit court, the latter
court obtains jurisdiction over the matter to the same extent as if it had been originally
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brought in that court, and it must proceed to fully try and determine the cause. It does
not pass upon the question as to whether or not the county court has committed error
in any of its rulings, either of law or of fact, but it must try the cause upon its merits,
both of law and of fact, just as if it had been originally brought in the circuit court. It
does not either affirm or reverse the findings or judgment of the county court, but
tries the cause alone upon its merits, and determines the same by the exercise of its
own discretion and judgment.
100 Ark. at 499, 140 S.W. at 714. Thus, the circuit court first erred in dismissing appellant’s
petition in 2007 on the basis that the county court’s order was not final because it did not
contain a legal description or address the issue of damages. See Armstrong v. Cook, 243 Ark.
230, 419 S.W.2d 308 (1967).
In the orders currently on appeal, the circuit court based its dismissal of appellant’s
petition on res judicata and the law of the case because of the circuit court’s 2007 dismissal
of appellant’s earlier appeal from county court. Neither doctrine, however, applies in this
case. The doctrine of res judicata bars relitigation of a subsequent suit when (1) the first suit
resulted in a final judgment on the merits; (2) the first suit was based upon proper jurisdiction;
(3) the first suit was fully contested in good faith; (4) both suits involve the same claim or
cause of action; (5) both suits involve the same parties or their privies. Jayel Corp. v. Cochran,
366 Ark. 175, 234 S.W.3d 278 (2006). The circuit court’s 2007 order clearly states that the
dismissal was without prejudice and, therefore, was not an adjudication on the merits that
would support a plea of res judicata. Crooked Creek, III, Inc. v. City of Greenwood, 352 Ark.
465, 101 S.W.3d 829 (2003).
Moreover, the supreme court has specifically held that the doctrine does not apply in
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proceedings to lay out a private road under Arkansas Code Annotated section 27-66-401
where there is no final adjudication of the matter by a court of competent jurisdiction.
Arkansas Game & Fish Comm’n v. Lindsey, 299 Ark. 249, 771 S.W.2d 769 (1989). That is the
case here. The first final order was the county court’s June 2008 order that was timely
appealed to the circuit court and, ultimately, this court.
The other basis for the circuit court’s decision dismissing appellant’s petition and other
claims is the doctrine of the law of the case. We dispose of this ruling because the doctrine
only applies where there has been an appeal to an appellate court. See Davis v. State, 325 Ark.
96, 925 S.W.2d 768 (1996); Parkerson v. Arthur, 83 Ark. App. 240, 125 S.W.3d 825 (2003).
Section 27-66-401 is not necessarily the only means by which a landlocked landowner
may obtain access to his property from a public road. Under the proper circumstances, a right
of access could be judicially established pursuant to the common-law doctrines of easement
by necessity or easement by implication. Powell v. Miller, 30 Ark. App. 157, 785 S.W.2d 37
(1990). Circuit court, not county court, has jurisdiction to make this determination. Id.
Finally, regarding the propriety of appellant raising in his appeal to circuit court the
issue of whether he may be entitled to an easement by necessity or an easement by
implication, we note that the supreme court has approved of this type of new issue being
raised in the circuit court proceeding. Armstrong v. Harrell, 279 Ark. 24, 648 S.W.2d 450
(1983).4 Accordingly, the circuit court erred in finding as a matter of law that appellant was
4
Harrell predated Amendment 80, so the issue was raised in chancery court.
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barred from raising this issue. We therefore reverse and remand for a determination consistent
with this opinion.
Reversed and remanded.
ROBBINS and HENRY, JJ., agree.
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