Hartwick v. Hill

• Decision Date: 17 April 2002
• Docket Number: No. CA 01-891.,CA 01-891.
• Citation: 77 Ark. App. 185,73 S.W.3d 15
• Parties: Pauline HARTWICK v. Bradley R. HILL and Connie Lee Hill.
• Court: Arkansas Court of Appeals

73 S.W.3d 15

77 Ark. App. 185

Pauline HARTWICK v. Bradley R. HILL and Connie Lee Hill.

No. CA 01-891.

Court of Appeals of Arkansas, Division I.

April 17, 2002.

Morgan & Tester, P.A., by: M. Edward Morgan, Clinton, for appellant.

Phil Stratton, Conway, for appellees.

SAM BIRD, Judge.

Appellant, Pauline Hartwick, appeals from an order of the circuit court that granted a roadway across Hartwick's land to the appellees, Bradley and Connie Hill, who own land adjacent to Hartwick's. The Hills had petitioned the county court for the establishment of a roadway across Hartwick's land pursuant to Ark.Code Ann. § 27-66-401(Repl.1994). The county court denied this petition, finding that the Hills had failed to prove the necessity for a roadway across Hartwick's land because, according to the evidence, the Hills had access to their land by virtue of their permissive use of a roadway that crossed the land of another adjacent owner. The circuit court, finding that absolute necessity is not required under section 27-66-401, reversed and ordered the delivery of a clerk's deed conveying to the Hills fee simple title to a thirty-foot strip of Hartwick's land on which the proposed roadway would lie.

Hartwick raises several points on appeal; however, we are unable to reach the merits of her arguments due to her failure to timely appeal the circuit court's order that she challenges. We agree with the Hills' argument that Hartwick did not timely appeal from the February 2, 2001, order of the court that granted the roadway to the Hills. Instead, Hartwick has appealed only from the court's May 10, 2001, order that served no purpose other than to authorize the clerk to deliver a $2,640 check to appellant for the amount of damages assessed against the appellees for the taking of the roadway. Appellees argue, and we agree, that the February 2, 2001, order was a final order for purposes of appeal. Because appellant's notice of appeal was not filed until May 18, 2001, it was not timely to appeal the court's February 2, 2001, order.

Whether an order is final and appealable is a matter going to the jurisdiction of the appellate court. Scherz v. Mundaca Inv. Corp., 318 Ark. 595, 886 S.W.2d 631 (1994) (dismissing the appeal as untimely when a foreclosure order was final and appealable but the party did not file the notice of appeal from this order within the thirty days from the filing of the decree). A final order is one that dismisses the parties from the court, discharges them from the action, or concludes their rights to the subject matter in controversy. Harold Ives Trucking Co. v. Pro Transp., Inc., 341 Ark. 735, 19 S.W.3d 600 (2000). A final order is one that is of such a nature as to not only decide the rights of the parties, but also to put the court's directive into execution, ending the litigation or a separable part of it. See id. A final judgment or decision is one that finally adjudicates the rights of the parties, putting it beyond the power of the court that made it to place the parties in their original positions; it must be such a final determination of the issues as may be enforced by execution or in some other appropriate manner. Budget Tire & Supply Co. v. First Nat'l Bank of Fort Smith, 51 Ark. App. 188, 912 S.W.2d 938 (1995). The finality of an order is not defeated because it contemplates further action that is ministerial and in furtherance of the enforcement of the court's decision. See Smith v. Smith, 51 Ark.App. 20, 907 S.W.2d 755 (1995).

By the order filed February 2, 2001, the trial judge accepted and adopted the report of viewers who had been earlier appointed to examine the land and lay out the location of a roadway, described the location of the road way to be granted, ordered the Hills to have a survey conducted to determine the precise acreage within the roadway, established that Hartwick would incur damages in the amount of $6,000 per acre due to the loss of the land for the roadway, and ordered that a deed containing a description of the land resulting from the survey be delivered to the Hills upon payment of the damages. Any further action contemplated by this order was collateral, ministerial, and in furtherance of the enforcement of the court's decision. See Smith, supra.

Collateral action is action that does not make any direct step toward final disposition of the merits of a case, will not be merged in the final judgment, is not an ingredient of the cause of action, and does not require consideration with the main cause of action. Such collateral and ministerial orders need not be final for purposes of Arkansas Rule of Civil Procedure 54 or Arkansas Rule of Appellate Procedure 2. Pledger v. Bosnick, 306 Ark. 45, 811 S.W.2d 286 (1991), overruled on other grounds by State v. Staton, 325 Ark. 341, 942 S.W.2d 804 (1996). The entry of orders pertaining to collateral and ministerial matters does not convert a final order into an order that is not final. See id.

The future action contemplated by the February 2, 2001, order included the obtaining of a survey reflecting the precise acreage in the roadway; the application of the $6,000 per acre formula that was ordered by the court as damages in the February 2, 2001, order; and the preparation and delivery of a deed upon payment of the damages. These actions are collateral to the main issues before the court, which was whether the Hills were entitled to a roadway across Hartwick's land pursuant to Ark.Code Ann. § 27-66-401 and the amount of damages to be paid therefor. To appeal the merits of this case, Hartwick had thirty days from February 2, 2001, in...