Unknown Heirs of Neal v. Vaughn (Majority)
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Cite as 2018 Ark. App. 548 ARKANSAS COURT OF APPEALS DIVISION II No. CV-18-19 UNKNOWN HEIRS OF NATHANIEL NEAL AND EMALINE NEAL, MARRIED PERSONS, DECEASED APPELLANTS Opinion Delivered: Noven-rbe r 4, 2018 1, APPEAL FROM THE SEVIER COUNTY CIRCUIT COURT [NO. 67CV -0e-126] V. HONORABLE TOM COOPER, DOROTHY VAUGHN, GAIL HAMILTON, LOUIS WiLLIS, HOMER JUDGE JERRY PICKETT, JUDY PICKETT, AND PROFESSIONAL LAND TITLE COMPANY OF ARKASAS APPEAL DISMISSED WITHOUT PREJUDICE .WILLIS, APPELLEES RITA V. GRUBER, ChiefJudge Appellants, the unknown heirs of Nathaniel Neal and Emaline Neal, appeal from an order of the Sevier Counry Circuit Court that denied their motion for summary judgment and granted the motion for summary judgment filed by appelleesJerry andJudy Pickett (the Picketts) and ProGssional Land Title Company (Proland). Appellants raise five points on appeal.lHowever, we cannot reach the merits of the appeal because the order appealed from is not a final, appealable order. Accordingly, we dismiss the appeal. r-W.e nore that appellants' brief faiied to comply with the briefing requirements set out in Arkansas Supreme Court Rule 4-2. E,ven after appellants were ordered to correct the addendum upon motions of the Picketts and Proland, the two-part, corrected addendum filed by appellants was once again deficient, containing an index with nunterous incorrect page numbers. Additionally, at least one item identified in the index was not actually contained'in the addendum. Fur[her, there are citations to the addendum in the appellants' brief that do not correlate with rhe corrected addendum. These deficiencies made it extremely diflicult for our review. We begin with a shorr discussion of the history leading uP to this appeal. On December 16,2OOg, Dororhy Vaughn and Gail Hamilton 61ed a petition for quiet title against Louis Willis, Homer'Willis, and the unknown heirs of Nathaniel Neal and Emaline Neal.2 Vaughn and Hamilton alleged that they were the righful owners of properry situated in Sevier Counry, had exercised exclusive dominion and control over the Properry by paying taxes, and had held the properry adversely to any claim of the defendants or any other persons. Homer and Louis filed an answer on Februa ry 3,2010. Vaughn and Hamilton filed an af6davit for warning order on February 23,2010, to serve the unknown heirs' The warning order was issued on Februa ry 23,201.0, and proof of publication was filed April 22, 201"0, indicating that it had been published on March 11 and 18,201'0' At the hearing on rhe peririon to quiet title, the trial court indicated that only two it lines of heirs were present, which were the named parties. The court further suggested or could either find adverse possession and give the land to Vaughn and Hamilton, it could court split the properfy 50/50 berween the two lines of heirs present at the hearing. The srated that rhe parties may have a problem with the "other ten heirs by not having personal testimony, the courl service . . . only two heirs of the children responded." After hearing the heirs' found thar Vaughn and Haniilton did not hold the properry adversely to the other the named parties Instead, recognizing that only two lines were present, the court found thar Vaughn and Harnilton stated in the complaint that they are the daughters of the grandchildren of Nathaniel deceased B.w. Willis, also known as Henry B.'Willis and the Neal and Emaline Neal. Although not alleged in the complaint, it appears as lhough record Narhaniel Neal and Emaline Neal had twelve children and died intestate' The and Nathaniel of rndicates that Louis and Homer are brothers and great-grandchildren Emaline Neal. 2 ownecl the "properry as tenants in common, meaning 50/50." The written decree quieting ritle was enrered September 29, 2010, and an amended decree was 6led October 21, 201'0, to correct an error in the legal descriplion of the land. ln 2011, Vaugl-rn, Hantilton, Louis Willis, and Homer'Willis, along with the spouses of those who were married, sold the properry to Jerry and Judy Pickett. A warranry deed was filed March 1,5,2011. On March 1,1, 201,6, the unknown heirs of Nathaniel Neal and Emaline Neal filed petirion for relief under the same case a number and caption as the original quiet-title action, which resulted in rhe amended order quieting title 61ed October 21,2010. The petition alleged thar the decree was defecrive because (1) it granted relief that had not been requested; (2) the court's exclusion of unnamed defendants/heirs was based on the adoption of allegations proffered ro it by the named parties, i.e., that all the delendants had been properly constructively summoned but that none appeared except Homer and Louis and that all the unknown heirs were residents of Arkansas as stated in the warning order; (3) the finding that no other heirs were before [he court on August 20,2010, was factually wrong because two of the unknown heirs had participated in formal discovery, pretrial preparations, and testified ar rhe hearing; (a) the named parties failed to apprise the court of rhe identiry of those witnesses as being unknown heirs even when the court ruled that the unknown heirs lailed ro appear; (5) the parties did nor apprise the court of this misunderstanding of fact after the hearing and before the enrry of the amended decree; and (6) the court mistakenly founcl the unknown heirs failed to appear as a result of the parties' misrepresentation and lraud upon rhe court. Based on these allegations, appellants asked that the decree be 3 set aside based on fraud or misrepresentation under Rule 60(c)(4) of the Arkansas Rules of Civil Procedure. An amended perition for relief was filed by the unknown heirs on May 18,2016, adding the Picketts and Proland to the caption, alleging in part that the Picketts and Proland "sought to complete the fraud" by attempring to obtain title insurance to lhe properry in order to sell it to the Picketts; that the Picketts knew that the named parties lacked clear title; and that Proland issued the title insurance in spite of the clear defects that were known to it.3 On June 20, 2016, Proland filed a "Motion to Dismiss, or in the Alternarive, Answer to the Amended Petition for Relief lrom Judgment" and an amended pleading on August 4,201.6. The Picketts filed an answer to the amended petition onJune 28,201,6, also asking that the amended petition be dismissed. Appellants filed an amendment ro rhe amended petition for relief from judgment on May 19,201.7, further alleging that the cour['s 201,1, findings and ruling acted as a defau]t judgment against the appellancs. On June 26, 2017, the Picketrs filed a motion lor summary judgment, asserting in part rhat appellants had not filed a "third parry complaint or any pleading asserting a claim or affirmative relief against Proland or the Picketts." The Picketts stated, "In this [appellants] have not filed a pleading as defined above [Ark. R. Civ. P. 7 & 8] case, against the Picketts and Proland. As such, a summons to appear should not have been issued to these parries, and they should be dismissed." (Emphasis supplied.) Proland filed a motion to adopt the motion for summary judgmenr filed by the Picketts. Appellants then filed a motion for 3Although not in the record, the Picketts' brief indrcates that summonses were issued to the Picketts and to Proland. summary judgment on June 29,2017, asking the court to enter an order setting aside the anrended decree quieting title, arguing that the October 21,2010 judgrrlent was void or voidable because the named parties failed to provide notice to the "unknown heirs" even though many names and addresses were known to the named parties and that the amended decree was induced by fraud of the named parties, which inured to the benefit ofthe Picketts and Proland. The trial court issued a letter opinion filed September 5,2017, indicating that it was granting Proland and the Picketts' motion for summary judgment. Appellants filed a letter with the court on September 6, 2017, requesting findinp of fact and conclusions of law. In an order entered October 2,201,7, the trial court granted Proland and the Picketts'motion for summary judgment, agreeing that they were not properly brought into the case, and denied appellants' motion for summary judgment. The order also provided that "all claims or causes of action asserted by the parties that are not specifically addressed in this Order are denied." Appellants appeai lrom the October 2,2017 order. Although the parties do not raise it, we must address whether this appeal is properly before rhis courr. 'Whether a final judgment, decree, or order exists is a jurisdictional issue that we have a dury to raise, even if the parties do not, in order to avoid piecemeal litigarion. Clark u. Summers,2018 Ark. App.225, at 3-4,547 appealed from is not final, this court S.\M.3d 511, 513.'When the order will not decide the merits of the appeal. Id. Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure-Civil provides that an appeal may be taken only from a 6nal judgment or decree entered by a circuit court. For an order to be final, it 5 nrust disnriss the parties lrom the court, discharge thenr flrom the action, or conc]ude their rights to the subject matter in controversy. ln Cannady u. St. Vincent Infrmary Med. Ctr.,2018 Ark. 35, at 10-1 7,537 S.W.3d 259,265-66, the supreme court explained: Generally, there is no basis for the review of a denial of interlocutory orders such as motions for summary judgment. Arkansas Ins. Dep't u. Baker,358 Ark.289, 188 S'w.3d 897 (2004). However, interlocutory appeals may be proper if rhe order in effect determines the action and prevents a judgment from which an appeal might be taken. Cipson u. Brown,288 Ark. 422,706 S.W.2d 369 (1986). We have allowed the appeal of the denial of a summary judgment motion when rhe circuit court in so rulir-rg engages in fact finding that effectively rules on a parry's defense. BpS, Inc. u. Parker,345 Ark. 381,47 S.W.3d 858 (2001). in some situarions, considerarion of an appeal of the denial of a motion for summary judgment may be proper when considered in conjunction with an appeal of an order granting summary judgment in order to determine if factual disputes remain for trial- Wilsoi u. McDaniel,i4T Ark. 1036,449 S.W.2d 944 (1970). However, if a review of the denied modon is not necessary to sustain the motion that was granted, an appeal is not proper. City of North Liule Rock u. carner,256 Ark. 1025,511 s.'w.2 d 656 (1g74). The present case does not involve competing motions for summary judgment. Appellants' motion argued the reasons why the 2011 order should be set aside, and proland and the Picketts' motion argued that they were not properly before the court because appellanrs failed to file a valid pleading stating a claim against them. nrake no argument that the trial court erred In addirion, appellanrs in granting Proland and the picketts, morion for summary judgment' The purpose of a summary judgmenr proceecling is not to rry the issues, but to determine if there are any issues ro be triecl. Buie u. certain Lloyds of London,79 judgment in this (Jnderwriters at Ark. App.344,348,87 s.w.3d g32, g35 (2002). The denial ofsummary case does not fall within any of the exceprions in which an appeal from denial of summary judgment may be allowed. Therefore, we dismjss rhe appeal for lack a final, appealable order. a of Appeal dismissed r,vithout prejudice. GlovrR and MURPHY, JJ., agree. Kearney Law Offices, by: Julius D. Kearney, Sr., for appellants. Louis Willis and Homer Willis, pro se appellees. McMullan & Brown, by: Amy Clemmons Brown, for appellees Jerry Pickett and Judy Pickett. Cullen & Co., PLLC, by: Tim Cullen, for appellee Professional Land Title Company of Arkansas. 7
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