{
  "id": 8718145,
  "name": "Kenneth TOWELL, Leroy G. WALKER, and Daisy M. WALKER, His Wife v. J.D. SHEPHERD, JR. and Juanita SHEPHERD, His Wife",
  "name_abbreviation": "Towell v. Shepherd",
  "decision_date": "1985-05-28",
  "docket_number": "85-51",
  "first_page": "143",
  "last_page": "147",
  "citations": [
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      "cite": "286 Ark. 143"
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      "cite": "689 S.W.2d 564"
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    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
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      "category": "reporters:state",
      "reporter": "Ark. App.",
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      "year": 1980,
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      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1675879
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      "year": 1977,
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    {
      "cite": "240 Ark. 657",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
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      "year": 1966,
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    {
      "cite": "266 Ark. 942",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        8724000
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      "weight": 2,
      "year": 1979,
      "opinion_index": 0,
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        "/ark/266/0942-01"
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    {
      "cite": "258 Ark. 999",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1621190
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      "weight": 2,
      "year": 1975,
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  "last_updated": "2023-07-14T20:29:09.553890+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Kenneth TOWELL, Leroy G. WALKER, and Daisy M. WALKER, His Wife v. J.D. SHEPHERD, JR. and Juanita SHEPHERD, His Wife"
    ],
    "opinions": [
      {
        "text": "Jack Holt, Jr., Chief Justice.\nAt issue in this case is the jurisdiction of the chancery court to dispose of a tort claim contained in a complaint which primarily sought injunctive relief. Our jurisdiction is pursuant to Sup. Ct. R. 29(1 )(o).\nThe appellants own land in Cleburne County, Arkansas, that adjoins land owned by the appellees. A portion of the adjoining land is a pond that has been in existence approximately 30 years. In August 1978, the Cleburne Chancery Court entered an order allowing the appellees to fill in that portion of the pond that is situated on their property.\nIn April, 1984, the appellants filed a complaint in circuit court alleging that the appellees cut a ditch across appellants\u2019 portion of the property that lowered the level of the pond. The appellants further claimed that the appellees had continuously and systematically pursued a course of conduct that was designed to interfere with the appellants\u2019 quiet enjoyment of their property. The appellants asked for a permanent injunction to prohibit the interference with their enjoyment of the pond and $25,000 in compensatory and punitive damages for the intentional infliction of emotional distress. The case was transferred on the appellees\u2019 motion to chancery court.\nThe chancellor ordered the appellees to restore the pond to its original water level within 15 days or pay $350.00 as compensation for making a new fill; enjoined the appellees from further interference with the pond\u2019s water level; and enjoined them from placing additional fill material beyond the water level of the pond. The chancellor found however that the appellees\u2019 actions did not warrant an award of damages to the appellants for injury to their property or for emotional distress.\nThe appellants contend on appeal that the chancery court did not have jurisdiction over the issues that pertain to the tort of intentional infliction of emotional distress. In the alternative, the appellants argue that the court erred in refusing to grant damages arising out of the tortious conduct of the appellees.\nWe hold that the chancery court properly exercised its jurisdiction to resolve the entire matter.\nThe appellants originally filed their complaint in circuit court. The appellees filed a motion to transfer to equity. The appellants did not object to the transfer. We have held that when a suit is improperly bought in equity it should not be dismissed, but should be transferred to the law court and that if no motion to transfer is made, the objection is deemed waived, unless there is a total lack of jurisdiction, such as a criminal case or probate of a will. Stolz v. Franklin, 258 Ark. 999, 531 S.W.2d 1 (1975). Likewise, by not objecting to the transfer to equity the appellants effectively consented to the chancery court\u2019s adjudication of the controversy and lost their right to object to the court\u2019s jurisdiction. 27 Am Jur 2d Equity \u00a7 18 (1966).\nSince the appellants were primarily seeking injunctive relief which is an equitable cause of action, the chancery court\u2019s jurisdiction had been legally invoked. Under the clean up doctrine, once the chancery court had jurisdiction for any purpose it could retain jurisdiction for all purposes and decide all issues involved in the subject matter of the dispute between the litigants. See White v. Cliff Peck Chevrolet, 266 Ark. 942, 587 S.W.2d 606 (1979); Johnson v. Johnson, 240 Ark. 657, 401 S.W.2d 213 (1966); Bierbaum v. City of Hamburg, 262 Ark. 532, 559 S.W.2d 20 (1977); Import Motors v. Luker, 268 Ark. 1045, 599 S.W.2d 398 (1980); and 27 Am Jur 2d Equity \u00a7 108. The chancery court will decide all issues pursuant to the clean up doctrine even though it means passing on matters which are ordinarily cognizable at law. 27 Am Jur 2d Equity \u00a7 108. The court, however, is only able to exercise jurisdiction over legal matters when the decision of the legal questions is incidental or essential to the determination of the equitable questions. Id. \u00a7 110.\nHere, the appellants\u2019 claim for damages for the intentional infliction of emotional distress was incidental to the primary aim of the litigation \u2014 injunctive relief against the appellees. As a matter of propriety, once the lawsuit was transferred to chancery court it should stay there for a resolution of all of the issues.\nIn their challenge to the chancery court\u2019s jurisdiction, the appellants rely on Gorchik v. Gorchik, 10 Ark. App. 331, 663 S.W.2d 941 (1984) in which the court of appeals found the chancery court did not have jurisdiction in a divorce action to hear a damages claim for an intentional tort. In Gorchik, however, the tort claim was not incidental to the divorce action and was based on different facts than those presented in the appeal from the divorce decree. Here, the same facts are presented, the appellants simply seek two forms of relief. Furthermore, the chancery court in this case did not award damages for the tort action, rather the chancellor decided there was nothing in the record on which to base a tort claim. The court\u2019s action was within the purview of the clean up doctrine.\nThe appellants also contend that the chancery court erred in refusing to grant damages for the alleged tortious conduct of the appellees. In their argument the appellants list the actions of the appellees which they find offensive but they do not say in what way they were damaged. They also failed to allege damages in their complaint but merely made the conclusory allegation that they were damaged as a result of the intentional infliction of emotional distress by the appellees in the sum of $25,000. The chancellor was not clearly erroneous when he found the appellees\u2019 conduct did not amount to a tort so as to warrant an award of damages to the appellants.\nAffirmed.",
        "type": "majority",
        "author": "Jack Holt, Jr., Chief Justice."
      }
    ],
    "attorneys": [
      "Harkey, Walmsley, Belew & Blankenship, by: John M. Belew, for appellant.",
      "Reed, Irwin, Green & Tilley, P.A., by: R. Bryan Tilley, for appellee."
    ],
    "corrections": "",
    "head_matter": "Kenneth TOWELL, Leroy G. WALKER, and Daisy M. WALKER, His Wife v. J.D. SHEPHERD, JR. and Juanita SHEPHERD, His Wife\n85-51\n689 S.W.2d 564\nSupreme Court of Arkansas\nOpinion delivered May 28, 1985\nHarkey, Walmsley, Belew & Blankenship, by: John M. Belew, for appellant.\nReed, Irwin, Green & Tilley, P.A., by: R. Bryan Tilley, for appellee."
  },
  "file_name": "0143-01",
  "first_page_order": 169,
  "last_page_order": 173
}