White v. Welsh, 96-223

• Decision Date: 03 March 1997
• Docket Number: No. 96-223,96-223
• Citation: 939 S.W.2d 299,327 Ark. 465
• Parties: Hubert L. WHITE & Sharon G. White, Appellants, v. Evelyn R. WELSH, Representative of the Estate of Martin Hardcastle, Appellee, Marion County, Arkansas, by Judge Kenneth Jefferson, Intervenor.
• Court: Arkansas Supreme Court

Page 299

939 S.W.2d 299

327 Ark. 465

Hubert L. WHITE & Sharon G. White, Appellants, v. Evelyn R. WELSH, Representative of the Estate of Martin Hardcastle, Appellee Marion County, Arkansas, by Judge Kenneth Jefferson, Intervenor.

No. 96-223.

Supreme Court of Arkansas.

March 3, 1997.

Hubert L. White and Sharon White, Yellville, pro se.

Michael E. Kelly, Yellville, for appellee.

GLAZE, Justice.

In 1978, Jack McPherson filed suit against Marion County, seeking to enjoin the use of a roadway across his property and to prevent the County from grading the roadway, which served as access to property owned by Martin Hardcastle. McPherson and the County settled their dispute, and on November 20, 1978, an order was entered in which the parties agreed that McPherson was to provide an alternate access or roadway across his property to serve the needs of Hardcastle's land, and that the County would grade and maintain it.

In July of 1990, Hardcastle died, and on October 26, 1990, the Hardcastle Estate was opened, and Evelyn Welsh was appointed personal representative. In 1991, the McPhersons sold their property to Hubert and Sharon White, and shortly afterwards, the Whites locked the gates across the alternate roadway, preventing access to Hardcastle's land. On October 14, 1991, the Hardcastle Estate filed suit in chancery court against the Whites and McPhersons, seeking to enjoin them from interfering with the roadway. The Whites counterclaimed.

On August 28, 1992, the chancery court entered an order substituting Welsh, personal representative of the Estate, as the plaintiff. On July 14, 1993, the chancery court granted Marion County's petition to intervene as a necessary party, and the County pled the same claims and requested the same relief as the Estate. Subsequently, the McPhersons were dismissed from the litigation.

The Whites then moved to dismiss Welsh, asserting she had no standing. The trial court treated the motion as one to make more definite and certain, and allowed Welsh twenty days to file an amended complaint. Welsh timely filed her pleading on November 9, 1994. Because Welsh's probate order authorizing her to sell the Hardcastle land was not effective until November 10, 1994, the trial court later allowed Welsh to ratify her November 9 petition, which she did on May 2, 1995.

Following trial on the matter, the court entered its final order on November 29, 1995, wherein it held that the easement described in the earlier November 20, 1978 court order had been established by use and prescription and is appurtenant to the Hardcastle land. The trial court found that Welsh's suit was not barred by the seven-year statute of limitations for recovery of real estate. Further, the court directed the Whites to remove obstructions to the roadway within ten days and permanently enjoined them from obstructing the roadway again. The trial court dismissed the Whites' counterclaim and remaining motions.

On appeal, the Whites argue four main points, but we consider points one and three together, since they tend to overlap. ¹ First, the Whites contend the trial court erred in allowing Welsh to be substituted as a party-plaintiff and in failing to dismiss Welsh's complaint. The Whites maintain the original complaint filed by the Estate was void because it was filed by the Hardcastle Estate, a legal nonentity and nonexisting party, that had no standing to sue, and in the amended complaint filed by Welsh, she failed to show any title or ownership in the disputed easement.

Welsh clearly had a property interest giving her standing. Ark. R. Civ. P. 17(a) provides that every action shall be prosecuted in the name of the real party-in-interest. Also relevant is Ark.Code Ann. § 28-49-101(b)(1) (1987), which provides that real property shall be an asset in the hands of the personal representative when the court finds that the real property should be sold. Here, Welsh petitioned to sell 120 acres of the Hardcastle land, and that petition was granted by the probate court. Specifically, Rule 17(a) provides as follows:

No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.

What constitutes a reasonable time under Rule 17 is a matter of judicial discretion and will depend upon the facts of each case. Insurance from CNA v. Keene Corp., 310 Ark. 605, 839 S.W.2d 199 (1992). We believe the record amply supports the trial...