{ "id": 6139974, "name": "Curtis DRUMMOND v. Randall SHEPHERD, Shirley Shepherd, Brian Thomas and Dennis Shepherd", "name_abbreviation": "Drummond v. Shepherd", "decision_date": "2007-01-24", "docket_number": "CA 06-438", "first_page": "244", "last_page": "247", "citations": [ { "type": "official", "cite": "97 Ark. App. 244" }, { "type": "parallel", "cite": "247 S.W.3d 526" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "93 Ark. App. 54", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136721 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/ark-app/93/0054-01" ] }, { "cite": "344 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 210167 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/344/0001-01" ] }, { "cite": "300 Ark. 405", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886860 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/300/0405-01" ] }, { "cite": "Ark. Code Ann. \u00a7 18-11-106", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2003, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 18-61-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2003, "opinion_index": 0 }, { "cite": "69 Ark. App. 297", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141394 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark-app/69/0297-01" ] }, { "cite": "347 Ark. 260", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 683467 ], "weight": 8, "year": 2001, "pin_cites": [ { "page": "264" }, { "page": "838" }, { "page": "838" }, { "page": "838" } ], "opinion_index": 0, "case_paths": [ "/ark/347/0260-01" ] }, { "cite": "91 Ark. App. 267", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139587 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/ark-app/91/0267-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-22-309", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 3, "year": 1999, "pin_cites": [ { "page": "(d)" }, { "page": "(a)(l)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 484, "char_count": 7773, "ocr_confidence": 0.766, "pagerank": { "raw": 1.3540487006227187e-07, "percentile": 0.6341639995227522 }, "sha256": "65505e41fce9e58a59ee64690e7b0d9e2a6390bb47f263621bec03c721b0cefd", "simhash": "1:bbac932625437d6f", "word_count": 1294 }, "last_updated": "2023-07-14T22:09:44.660607+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Glover and Marshall, JJ., agree." ], "parties": [ "Curtis DRUMMOND v. Randall SHEPHERD, Shirley Shepherd, Brian Thomas and Dennis Shepherd" ], "opinions": [ { "text": "LarryD. Vaught, Judge.\nAppellant Curtis Drummond argues that the trial court erred by dismissing his prescriptive-easement action and erroneously granting appellees\u2019 motion for attorney\u2019s fees. We affirm in part and reverse in part.\nThis case began in October 2004, when Drummond filed a complaint asserting a right-of-use easement (on a gravel drive) across appellees\u2019 property. In response to his claim, appellees filed a 12(b)(6) motion to dismiss \u2014 arguing that Drummond had previously sought to have this same drive designated a roadway-by-necessity in county court. Appellees noted that the necessity action had been dismissed on March 4, 2004, after the court-appointed reviewers determined that Drummond did in fact have access to his property by other means. Appellees also moved the court for an award of attorney\u2019s fees pursuant to Ark. Code Ann. \u00a7 16-22-309 (Repl. 1999), arguing that Drummond\u2019s claim for a prescriptive easement was wholly without merit. The motions were denied, and the matter went to trial on November 15, 2005. At trial, appellees renewed their motion to dismiss and their motion for attorney\u2019s fees, arguing that Drummond failed to present a justiciable issue. The court again denied their motions.\nAt trial, Drummond testified that in 2002 he purchased a forty-acre tract near the Bidville Community in northern Crawford County. He stated that he was born in 1935 and had lived in the area of the property from 1939 until 1949. He offered proof that he and his cousins had crossed over the property periodically from the 1930s through 1967. However, the only proof of actual continuous usage of a particular route was from the time of Drummond\u2019s purchase of the neighboring property in 2002, until he ceased using the route in 2004. Specifically, Drummond testified that he had used the roadway \u201csince I got it [the property in 2002] until about a year ago, whenever Ellison\u2019s wife stopped me there and told me she didn\u2019t want me going across her property no more.\u201d\nAt the close of the case-in-chief, appellees moved to dismiss the case, arguing that Drummond had only established two years of continuous use. The court then granted the motion, stating that Drummond\u2019s proof was \u201cwoefully short\u201d of the minimum usage of seven consecutive years required to establish a prescriptive easement. In a post-trial motion, appellees claimed they incurred $4476 in attorney\u2019s fees defending against Drummond\u2019s easement complaint. In response to appellees\u2019 motion, the court concluded that, because Drummond presented no justiciable issue of law or fact in his complaint, appellees were entitled to an award of attorney\u2019s fees as mandated by section 16-22-309. Drummond tendered a timely appeal, claiming that the trial court erroneously dismissed his complaint and erred by concluding that he failed to present a justiciable issue.\nWe first consider Drummond\u2019s challenge to the trial court\u2019s grant of appellees\u2019 motion to dismiss. A motion to dismiss is identical to a motion for a directed verdict in a jury trial and is a challenge to the sufficiency of the evidence. See Reed v. State, 91 Ark. App. 267, 209 S.W.3d 449 (2005). On appeal, we review the evidence in the light most favorable to the party against whom the verdict is sought and give it its highest probative value, taking into account all reasonable inferences deducible therefrom. Woodall v. Chuck Dory Auto Sales, Inc., 347 Ark. 260, 61 S.W.3d 835 (2001). A motion for directed verdict should be granted only if there is no substantial evidence to support a jury verdict. Id. at 264, 61 S.W.3d at 838. Where the evidence is such that fair-minded persons might reach different conclusions, then a jury question is presented, and the directed verdict should be reversed. Id., 61 S.W.3d at 838. It is a trial court\u2019s duty to review a motion for directed verdict or dismissal at the conclusion of a plaintiff s case by deciding whether, if it were a jury trial, the evidence would be sufficient to present to the jury. Id., 61 S.W.3d at 838.\nIn Arkansas, one asserting an easement by prescription must show \u2014 by a preponderance of the evidence \u2014 use that is adverse to the true owner and under a claim of right for at least seven years. Gazaway v. Pugh, 69 Ark. App. 297, 12 S.W.3d 662 (2000); Ark. Code Ann. \u00a7 18-61-101 (Repl. 2003), see also Ark. Code Ann. \u00a7 18-11-106 (Repl. 2003). Here, considering the evidence in the light most favorable to Drummond, there is proof that he continuously used the roadway for approximately two years. However, by his own account, once he was told to stop using the road \u2014 he did. Therefore, he made no showing of adverse use, and it was not error for the trial court to dismiss the claim.\nDrummond also argues that the trial court erred in its decision to award appellees attorney\u2019s fees because his complaint contained a justiciable issue. Arkansas Code Annotated \u00a7 16-22-309 provides that an attorney\u2019s fee shall be awarded in any action where the trial court finds that there was a complete absence of a justiciable issue of either law or fact. In order to support a determination that no justiciable issue exists, the court must determine that a complaint was filed in bad faith solely for purposes of harassing or maliciously injuring another, or delaying adjudication without just cause or that an attorney or party signed a pleading not grounded in fact, not warranted by existing law or a good faith argument for a change in the law, or filed for an improper purpose. See State v. Craighead County Bd. of Election Comm\u2019rs, 300 Ark. 405, 779 S.W.2d 169 (1989).\nAccording to the statutory language, on appeal, the question as to \u201cwhether there was a complete absence of a justiciable issue is determined de novo on the record of the trial court alone.\u201d Ark. Code Ann. \u00a7 16-22-309(d) (Repl. 1999); Stilley v. Hubbs, 344 Ark. 1, 40 S.W.3d 209 (2001). Additionally, our case law requires that we not reverse the trial court\u2019s factual findings, unless they are clearly erroneous. Stanley v. Burchett, 93 Ark. App. 54, 216 S.W.3d 615 (2005). In this case, although the trial court expressly held that there was an absence of a justiciable issue, it made no factual findings supporting its legal conclusion. Therefore, we are left with the singular task of determining whether \u2014 as a matter of law \u2014 Drummond presented a justiciable claim. Further, contrary to appellees\u2019 assertion that the trial court did not abuse its discretion in making the fee award, which is generally the ultimate test for the propriety of an award of attorney\u2019s fees, we do not review matters of law under an abuse-of-discretion standard.\nAlthough Drummond fell short of his ultimate burden, proving seven years of adverse use, he did present a valid claim and offered some evidence that he had used the roadway over the course of many years. Indeed, his claim had sufficient merit that the trial court twice refused to dismiss the claim before its ultimate decision to dismiss. Therefore, based on our de novo review of the trial record, we conclude that Drummond presented a weak but justiciable claim. The trial court is reversed on this point.\nAffirmed in part; reversed in part.\nGlover and Marshall, JJ., agree.\nDespite holding that Drummond failed to present a justiciable issue, the court reduced appellees\u2019 fee award to $1500, although the statute would have allowed a full recovery of the fees incurred by appellees. See Ark. Code Ann. \u00a7 16-22-309(a)(l) (Repl. 1999).", "type": "majority", "author": "LarryD. Vaught, Judge." } ], "attorneys": [ "The Baker Law Firm, PLLC, by: Rinda Baker, for appellant.", "Bagby Law Firm, P.A., by; Philip A. Bagby, for appellees." ], "corrections": "", "head_matter": "Curtis DRUMMOND v. Randall SHEPHERD, Shirley Shepherd, Brian Thomas and Dennis Shepherd\nCA 06-438\n247 S.W.3d 526\nCourt of Appeals of Arkansas\nOpinion delivered January 24,2007\nThe Baker Law Firm, PLLC, by: Rinda Baker, for appellant.\nBagby Law Firm, P.A., by; Philip A. Bagby, for appellees." }, "file_name": "0244-01", "first_page_order": 276, "last_page_order": 279 }