{ "id": 922851, "name": "Robert Harrold KINKEAD and Joyce Kinkead, His Wife, Appellants v. Carol Ann Kinkead SPILLERS and Jeannine Lea Kinkead Mathis, Appellees; Boatmen's National Bank of Arkansas, Intervenor", "name_abbreviation": "Kinkead v. Spillers", "decision_date": "1997-03-17", "docket_number": "96-1433", "first_page": "552", "last_page": "558", "citations": [ { "type": "official", "cite": "327 Ark. 552" }, { "type": "parallel", "cite": "940 S.W.2d 437" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "316 Ark. 83", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907792 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/316/0083-01" ] }, { "cite": "Ark. Code Ann. \u00a7\u00a7 18-60-416", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "853 S.W.2d 890", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1914664, 6137217 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/313/0373-01", "/ark-app/42/0072-01" ] }, { "cite": "42 Ark. App. 72", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137217 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ark-app/42/0072-01" ] }, { "cite": "298 Ark. 415", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1889842 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/298/0415-01" ] }, { "cite": "51 Ark. App. 4", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136001 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark-app/51/0004-01" ] }, { "cite": "925 S.W.2d 804", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1996, "opinion_index": 1 }, { "cite": "325 Ark. 341", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369154 ], "year": 1996, "opinion_index": 1, "case_paths": [ "/ark/325/0341-01" ] }, { "cite": "113 S. Ct. 3034", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1993, "opinion_index": 1 }, { "cite": "306 Ark. 45", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900931 ], "weight": 5, "year": 1991, "pin_cites": [ { "page": "50" }, { "page": "290" } ], "opinion_index": 1, "case_paths": [ "/ark/306/0045-01" ] }, { "cite": "321 Ark. 180", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449543 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "184", "parenthetical": "quoting Pledger v. Bosnick, 306 Ark. 45, 50, 811 S.W.2d 286, 290 (1991), cert. denied, 113 S. Ct. 3034 (1993), reversed on other grounds, State v. Staton, 325 Ark. 341, 925 S.W.2d 804 (1996)" }, { "page": "198", "parenthetical": "quoting Pledger v. Bosnick, 306 Ark. 45, 50, 811 S.W.2d 286, 290 (1991), cert. denied, 113 S. Ct. 3034 (1993), reversed on other grounds, State v. Staton, 325 Ark. 341, 925 S.W.2d 804 (1996)" } ], "opinion_index": 1, "case_paths": [ "/ark/321/0180-01" ] } ], "analysis": { "cardinality": 595, "char_count": 12311, "ocr_confidence": 0.782, "pagerank": { "raw": 2.8826556763375983e-07, "percentile": 0.8436847090312988 }, "sha256": "a951fbc471acd77e279b41e7fc5d94d3ed87099230a84fcb14b39dec043aa563", "simhash": "1:c358d931a5728cfe", "word_count": 2019 }, "last_updated": "2023-07-14T16:50:41.435320+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Corbin, J., dissents." ], "parties": [ "Robert Harrold KINKEAD and Joyce Kinkead, His Wife, Appellants v. Carol Ann Kinkead SPILLERS and Jeannine Lea Kinkead Mathis, Appellees; Boatmen\u2019s National Bank of Arkansas, Intervenor" ], "opinions": [ { "text": "Tom Glaze, Justice.\nOn September 27, 1994, appellees Carol Kinkead Spillers and Jeannine Kinkead Stroud filed a petition for partition. They along with their brothers Harold and Robert had obtained a one-fourth interest in the property. Harold died, leaving his one-fourth interest to Carol and Jeannine, so that the sisters each owned a three-eighths interest in the property at the time the partition action was filed. Carol and Jeannine requested that the property be sold, but Robert wanted the property to be divided in kind. Robert\u2019s wife, Joyce, having a dower interest, was made a party to the action.\nThe chancellor appointed three commissioners, who reported that the property could not be partitioned in kind. On December 27, 1995, the chancellor confirmed the commissioners\u2019 report and directed the property sold. The bid offered by Carol and Jeannine was the highest at $155,000, and on May 31, 1996, the chancellor entered an order confirming the sale and directed the chancery clerk to execute a commissioner\u2019s deed. Robert objected, challenging the chancellor\u2019s jurisdiction. He also questioned the sale price, claiming the market value of the property was $350,000. On June 23, 1996, Robert filed a notice of appeal from the May 31, 1996 order.\nAlso, on May 31, 1996, Boatmen\u2019s National Bank of Arkansas moved to intervene, alleging it had an interest in the property through mortgages and a November 1, 1993 judgment against Robert and his wife in the amount of $49,812. See Kinkead v. Union Nat\u2019l Bank, 51 Ark. App. 4, 907 S.W.2d 154 (1995). Boatmen\u2019s asserted it had served a writ of garnishment on the chancery clerk for Robert\u2019s share of the proceeds from the sale. Robert responded by challenging Boatmen\u2019s standing. He argued Boatmen\u2019s had no title or possession of the property, and the lien was insufficient to give it standing. Boatmen\u2019s replied, claiming that, if its judgment against Robert was not satisfied by his share of the proceeds, its Hen on the property would be lost when the sale to Carol and Jeannine was completed. Boatmen\u2019s further argued that the existing parties, Robert, Joyce, Carol, and Jeannine, had a common interest to avoid Boatmen\u2019s judgment, and its Hen interest was left unprotected if Boatmen\u2019s was not allowed to intervene. Boatmen\u2019s urged it should be permitted to intervene, so it could protect its Hen as the Hen relates to both the property and the sale proceeds.\nA hearing was held on the pending issues, and on August 5, 1996, the chanceHor entered her order, aHowing Boatmen\u2019s intervention, directing distribution of the sale proceeds, and setting an appeal bond amount. Robert filed an amended notice of appeal to include the August 5, 1996 order. On September 10, 1996, the chancellor entered an order approving the commissioner\u2019s deed to Carol and Jeannine and directing payment of expenses. Further, the chancellor ordered the $35,222.07 due to Robert as his share of the proceeds to be held \u201cpending further orders.\u201d Robert did not appeal from this order.\nNow before this court is Boatmen\u2019s motion to dismiss Robert\u2019s appeal; Boatmen\u2019s argues Robert\u2019s notice and amended notice are not from final, appealable orders. Boatmen\u2019s cites the cases of Bell v. Wilson, 298 Ark. 415, 768 S.W.2d 23 (1989), and Magness v. Commerce Bank, 42 Ark. App. 72, 853 S.W.2d 890 (1993), for the proposition that Robert'filed his appeal prematurely and should have filed from the court\u2019s order approving the deed entered on September 10, 1996. Robert counters by arguing the Bell and Magness decisions involved partitions in kind, but in situations where partitions are by sale, the court need not enter a later order approving the commissioner\u2019s deed. See Ark. Code Ann. \u00a7\u00a7 18-60-416 -417 and 18-60-422 (1987). Alternatively, Boatmen\u2019s urges that its claims and interests have not been decided, nor does any court order mention any facts that would allow a piecemeal appeal under ARCP Rule 54(b). For this added reason, Boatmen\u2019s submits that the orders from which Robert appealed were not final and appealable. We agree.\nThe case of Martin v. National Bank of Commerce, 316 Ark. 83, 870 S.W.2d 738 (1994), is controlling here. In Martin, the chancellor granted Cynthia Martin what appeared to be an uncontested divorce and, upon doing so, the chancellor distributed the parties\u2019 marital property. The husband, George, later moved to set aside the decree, alleging fraud on Cynthia\u2019s part. George\u2019s aunt by marriage, Alpha Brown, claimed an interest in the Martins\u2019 property, and after learning of the divorce, Ms. Brown moved to intervene in the divorce action. Brown\u2019s intervention was granted. The chancellor later denied George\u2019s motion and George appealed from that ruling. George never challenged the chancellor\u2019s ruling granting Ms. Brown\u2019s intervention, nor did the chancellor dispose of Brown\u2019s claim as required under ARCP Rule 54(b). Consequently, this court held no final, appealable order had been entered, and dismissed George Martin\u2019s appeal.\nHere, Robert does not contest the lower court\u2019s decision allowing Boatmen\u2019s intervention, and while there was discussion of Boatmen\u2019s lien claim at the July 16, 1996 hearing, the record is far from clear that the chancellor ever disposed of it. In her August 5, 1996 order following the hearing, the chancellor, in granting Boatmen\u2019s intervention, mentioned that Boatmen\u2019s attorney announced that the Bank would release any lien it has on the subject property upon receipt of Robert\u2019s sale proceeds, but the chancellor never ruled on the lien issue. Boatmen\u2019s argues in its motion to dismiss Robert\u2019s appeal that the chancellor reserved her ruling on the issue, but Robert submits the chancellor declined to rule on Boatmen\u2019s lien claim because it was collateral to the issues raised in the Kinkeads\u2019 dispute. Robert admits some quandary over the chancellor\u2019s September 10, 1996 order which reflects a questionable amount of sale proceeds to be held for Robert and puzzling verbiage that his share shall be held \u201cuntil further orders of the court.\u201d Robert claims he never received notice of the entry of the September 10 order, nor does he believe Boatmen\u2019s knew of its entry.\nOur review of the record reflects confusion exists concerning Boatmen\u2019s hen claim. Obviously, its Hen cannot be protected by any of the Kinkead parties, as has been suggested by Robert. Robert\u2019s share of the sale proceeds, as now determined, is insufficient to satisfy Boatmen\u2019s judgment, and Carol\u2019s and Jeannine\u2019s common interest is to take the property free and clear of Boatmen\u2019s Hen. Boatmen\u2019s claim is not merely coHateral to the Kinkeads\u2019 claims and should be decided when disposing of the Kinkeads\u2019 dispute.\nWe conclude that, based upon the confused state of the record before us, the only disposition that can be made is to dismiss this cause for failure to comply with the dictates of Rule 54(b). Because the record reflects the chanceHor has not, as yet, entered a final order in this matter, we agree with Robert\u2019s alternative plea that his appeal should be dismissed without prejudice.\nCorbin, J., dissents.\nFor clarity and ease of writing, we hereafter refer sometimes to Robert only when Joyce also is included.", "type": "majority", "author": "Tom Glaze, Justice." }, { "text": "Donald L. Corbin, Justice,\ndissenting. Although I do agree with the majority that neither the August 5, 1996 order nor the September 9 or 10, 1996 order actually states that Boatmen\u2019s is entitled to the Appellants\u2019 proceeds from the sale of the land, I believe the chancellor\u2019s order of August 5 says everything except that and, thus, I dissent. I believe that between the written order of August 5 and the chancellor\u2019s spoken rulings from the bench during the hearing on July 16, 1996, that it was understood that Boatmen\u2019s had a valid judgment lien on Appellants\u2019 portion of the real property and that it was entitled to the proceeds of the sale of Appellants\u2019 share of the land.\nAdditionally, I believe, contrary to the majority opinion, that the issue surrounding Boatmen\u2019s judgment lien was collateral to the action before the chancellor, which was an action in partition. An order may nonetheless be final for purposes of appeal provided that the only matters remaining in the trial court are collateral to or independent of the merits of the action or otherwise not an integral part of the action. This court has defined \u201ccollateral action\u201d as \u201caction 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.\u201d Marsh & McLennan of Arkansas v. Herget, 321 Ark. 180, 184, 900 S.W.2d 195, 198 (1995) (quoting Pledger v. Bosnick, 306 Ark. 45, 50, 811 S.W.2d 286, 290 (1991), cert. denied, 113 S. Ct. 3034 (1993), reversed on other grounds, State v. Staton, 325 Ark. 341, 925 S.W.2d 804 (1996)). Such collateral and ministerial orders need not be final for purposes of Arkansas Rule of Civil Procedure 54 nor Arkansas Rule of Appellate Procedure 2. Pledger, 306 Ark. 45, 811 S.W.2d 286. Also to be considered when determining whether a judgment is final is whether the order appealed from otherwise terminates the action as it was requested by the moving parties in the complaint on the issue of the suit. Id.\nApplying the definition of \u201ccollateral action\u201d set out above, it would appear that Boatmen\u2019s claim of a judgment Hen on the property owned by Appellants, which was sold pursuant to Appellees\u2019 action in partition, would be collateral to the subject of the controversy, which was the partition of the land itself. Boatmen\u2019s claim is independent to the merits of the action, as it concerned only the distribution of the proceeds of the partition sale. The claim certainly does not appear to be integral to the merits of the case, and this is evidenced by the chancellor\u2019s ruling during the hearing in which Boatmen\u2019s was allowed to intervene. The chancellor stated that Boatmen\u2019s claim really did not have anything to do with the merits of the lawsuit. The chancellor noted further that she had already decided everything that needed to be decided in the action for partition before Boatmen\u2019s intervened in the action.\nThe majority reasons that because the proceeds of Appellants\u2019 share of the land would not satisfy Boatmen\u2019s claim, Boatmen\u2019s was thus a necessary party entitled to intervene in order to protect its right to enforce the remaining amount of the judgment against the purchasers of the land, Appellees. This is an interesting interpretation in light of the fact that the August 5 order entered by the chancellor reflects:\n4. Intervenor by and through its attorney announced at the hearing that it would release any Hen it has on the subject property (so that the purchasers at the sale may take the property free and clear of any judgment hen) upon intervenor[\u2019s] receipt of the proceeds to which [Appellants] would have been entitled had there been no hen.\nApparently, Boatmen\u2019s had previously agreed that it would accept AppeHants\u2019 proceeds from their portion of the property sold as satisfaction of its judgment against AppeHants, at least as far as the AppeHees-purchasers were concerned. Arguably, Boatmen\u2019s would stfll retain its Hen against AppeHants on that portion of the judgment that remained unsatisfied, as the judgment Hen was against aH property owned by AppeHants within Pulaski County, Arkansas.\nIn sum, it appears to me, as it did initiaHy to the chanceUor, that Boatmen\u2019s claim is coUateral to the subject matter of the suit, which was the partition sale of the land. This is especiaHy apparent since the bank did not intervene until after the property had been sold, and the action in partition had been completed. Moreover, it was not necessary for Boatmen\u2019s to intervene in the partition action in order to protect its judgment against Appellants.\nFor the stated reasons, I respectfully dissent.", "type": "dissent", "author": "Donald L. Corbin, Justice," } ], "attorneys": [ "Joyce Kinkead, for appellant/pro se.", "Tommy E. Smith, for appellees.", "Sandra Elizabeth Jackson, for intervenor." ], "corrections": "", "head_matter": "Robert Harrold KINKEAD and Joyce Kinkead, His Wife, Appellants v. Carol Ann Kinkead SPILLERS and Jeannine Lea Kinkead Mathis, Appellees; Boatmen\u2019s National Bank of Arkansas, Intervenor\n96-1433\n940 S.W.2d 437\nSupreme Court of Arkansas\nOpinion delivered March 17, 1997\nJoyce Kinkead, for appellant/pro se.\nTommy E. Smith, for appellees.\nSandra Elizabeth Jackson, for intervenor." }, "file_name": "0552-01", "first_page_order": 584, "last_page_order": 590 }