M.L. Hughs II v. Steve Turner

Cite as 2025 Ark. App. 58
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-23-210

Opinion Delivered February 5, 2025
M.L. HUGHES II
APPELLANT APPEAL FROM THE POINSETT
COUNTY CIRCUIT COURT
V. [NO. 56CV-18-37]

STEVE TURNER; MARK TURNER,
INDIVIDUALLY AND AS TRUSTEE OF HONORABLE RANDY F.
THE MARK E. TURNER REVOCABLE PHILHOURS, JUDGE
TRUST; AND S&M TURNER
PROPERTIES
APPELLEES
DISMISSED WITHOUT PREJUDICE

BRANDON J. HARRISON, Judge

M.L. Hughes II appeals the circuit court order finding that Steve Turner; Mark

Turner, individually and as trustee of the Mark E. Turner Revocable Trust; and S&M

Turner Properties (the Turners) are the owners of certain property in Poinsett County,

Arkansas. Hughes argues that the Turners failed to prove the elements of adverse possession

and failed to comply with the requirements in the quiet-title statutes. We dismiss without

prejudice for lack of a final order.

This case is a dispute over 183.97 acres of hunting land (the “Property”). Between

1931 and 1940, C.M. Turner, grandfather of the Turners, bought the Property via tax deeds.

On 16 October 1940, Lorena and C.M. Turner deeded the Property to C.M. Turner as

trustee of the Hood Lake Hunting Club (the “Club”). At that time, the Club consisted of
the following members: C.M. Turner, W.L. Hughes, J.B. Smith, F.H. Micklish, and M.W.

Hart.

The present litigation began in 2018 when James Hart, a descendant of M.W. Hart,

filed a petition for construction of trust and for appointment of successor trustee. Hart

asserted that C.M. Turner is deceased, and to his knowledge, a successor trustee has not

been appointed. Further, all the original members of the Club are deceased, and to his

knowledge, none of those members transferred their respective membership interests in the

Club during their lifetimes. The petition named twenty-two respondents and “unknown

heirs” of the original members (except M.W. Hart), representing all those who might have

an interest in the property, including the Turners, Hughes, and Edward Clarke. Hart sought

the appointment of a successor trustee and a declaration that he and the Turners are the only

current members of the Club.

Relevant to this appeal, Clarke answered and asked to be declared both a member

and the successor trustee of the Club. The Turners responded by asserting an adverse-

possession counterclaim against Hart; an adverse-possession cross-claim against several other

respondents; and an adverse possession third-party claim against several additional

respondents, including Hughes. Hughes filed a general answer and asked that the petition

be dismissed.

Over most of the next three years, the parties progressed with effecting service, filing

various pleadings, and conducting discovery. At least ten respondents filed an entry of

appearance, waiver of service, and statement of lack of interest. On 8 June 2021, the court

convened a hearing and was assured by Hart’s attorney that, with the exception of two

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respondents, “everybody [has been] served, and they have either answered or defaulted.”

The court held a bench hearing on August 11–12 and began by asking the parties to review

the procedural status of the case. The Turners asserted that the only claim left to try was

their adverse-possession claim against Hughes. Hughes, on the other hand, contended that

the Club still exists and that Hughes, as the grandson of original Club member, W.L.

Hughes, is a member and is entitled to the benefits of a member. The circuit court

ultimately ruled that the Turners are the sole owners of the Property and included the

following paragraph in its written order:

At the beginning of the trial or earlier, the Court was advised that the
Turner Parties had settled their case with the Plaintiff, James Greg Hart and
with Edward Hollis Clarke III and that all other parties not settled with or
otherwise listed herein have either defaulted, asserted no interest in the real
property in question herein, or have transferred their interest to the Turner
Parties. As a result, the only parties to this action that remain at the time of
trial are the Turner Parties and M.L. Hughes II.

Hughes timely appealed the circuit court’s order.

On 26 September 2023, the Turners filed in this court a motion to dismiss the appeal

for lack of a final order. They explain that they settled with other parties (specifically Hart

and Clarke) during the litigation, and the settlements are mentioned in the court’s order,

but no order was ever entered dismissing Hart’s or Clarke’s claims for relief. And although

the abandonment language required by Ark. R. App. P.–Civ. 3(e)(vi) does appear in the

notices of appeal, it does not create finality because Hughes cannot dismiss Hart’s and

Clarke’s claims with his notice of appeal. He can abandon only his own claims.

Hughes responds that the court’s order is clearly appealable under the plain and

unambiguous language of Ark. R. App. P.–Civ. 2, specifically the following subsections that

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allow an appeal to be taken: (1) A final judgment or decree entered by the circuit court; (2)

An order which in effect determines the action and prevents a judgment from which an

appeal might be taken, or discontinues the action; (3) An order which grants or refuses a

new trial; (4) An order which strikes out an answer, or any part of an answer, or any pleading

in an action.

Hughes explains that subsection (4) applies because the circuit court granted the

Turners’ motion to strike a letter with treatise excerpts and a second amended answer filed

by Hughes after the bench trial had concluded and the parties had submitted proposed

findings of fact and conclusions of law. Subsection (3) applies because his postjudgment

motion, which included a request for a new trial, was denied. Subsections (1) and (2) apply

because the court’s order is both a “final judgment or decree” under Rule 2(a)(1) and is also

an order “which in effect determines the action and prevents a judgment from which an

appeal might be taken or discontinues the action” under Rule 2(a)(2). The order finds that

the Turners are the “sole owners” of the property and declares itself a “final order for all

purposes.”

Regarding Hart and Clarke specifically, Hughes asserts that a “Consent Order of

Dismissal with Prejudice” as to Hart was filed on 31 May 2022. Hughes also states that a

similar order for Clarke was probably prepared, but “Hughes can find no evidence in the

record on Appeal or eFlex that such an Order ever found its way into the Court file.” He

asserts that this is of no moment, however, because as noted above, the orders striking

Hughes’s pleadings and other filings and denying Hughes’s motion for new trial both

support appealability under Ark. R. App. P.–Civ. 2(a)(1) and (2) standing alone.

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Hughes is correct that the circuit court entered a consent order on 31 May 2022

dismissing the claim between Hart and the Turners. As to Clarke, Hart is the one who

named Clarke as a respondent; the Turners did not. Whatever settlement Clarke and the

Turners may have reached, it is not relevant for our purposes. Clarke was a named

respondent in Hart’s original petition, and he appeared by filing an answer and participating

in discovery. The record does not show what resolution was reached, if any, between Hart

and Clarke.

In addition, a review of the record has revealed four people—Max Turner, Leah

Abbott, Cynthia Turner, and Janice Lambert—who were named in the Turners’ adverse

possession cross-claim (Max Turner and Abbott) or their third-party claim (Cynthia Turner

and Lambert). The record shows all four individuals were served, but there is no further

resolution of the Turners’ claims against them.

As to Hughes’s asserted bases for appellate jurisdiction, the case law shows that when

Ark. R. App. P.–Civ. 2(a)(4) is invoked, the appellate court is either looking at whether the

granting of the motion to strike was proper or reviewing a default judgment that resulted

from the strike of an answer. “[A]ppellate jurisdiction under Rule 2(a)(4) extends to ‘all the

issues dependent upon the stricken answer,’ including default judgments.” Wood v.

Alkhaseh, 2023 Ark. App. 179, at 10, 666 S.W.3d 87, 94 (quoting Arnold & Arnold v.

Williams, 315 Ark. 632, 637, 870 S.W.2d 365, 367 (1994)). Here, Hughes is not arguing

on appeal that the circuit court erred in granting the Turners’ motion to strike, so it appears

inappropriate to assert appellate jurisdiction on this basis. The same holds true for relying

on the denial of a new trial for appellate jurisdiction. Hughes did make an argument based

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on Rule 59 in his postjudgment motion, but he has abandoned that argument on appeal

and makes no specific argument based on Rule 59.

As to subsection (1), a circuit court’s declaration that an order is final does not

necessarily make it so. As to subsection (2), while the circuit court’s order “discontinues

the action” between Hughes and the Turners, it does not dispense with the other parties

and claims as explained above.

The law concerning appealable orders is clear. Rule 2(a)(1) of the Arkansas Rules

of Appellate Procedure–Civil provides that an appeal may be taken only from a final

judgment or decree entered by the circuit court. Arkansas Rule of Civil Procedure 54(b)

provides that when more than one claim for relief is presented in an action or when multiple

parties are involved, an order that adjudicates fewer than all the claims or the rights and

liabilities of fewer than all parties is not a final, appealable order. See also S. Farm Bureau

Cas. Ins. Co. v. Easter, 369 Ark. 101, 251 S.W.3d 251 (2007) (noting that an order that fails

to address a counterclaim is not a final, appealable order). Under Rule 54(b), the circuit

court may direct the entry of a final judgment as to one or more but fewer than all the

claims or parties by making an express determination, supported by specific factual findings,

that there is no just reason for delaying an appeal. Without this required certification, an

order that adjudicates fewer than all the claims or the rights and liabilities of fewer than all

the parties does not terminate the action as to any of the claims or parties. See Ark. R. Civ.

P. 54(b)(2). In this case, Hughes is appealing from an order that is not final, and the appeal

is therefore dismissed without prejudice.

Dismissed without prejudice.

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KLAPPENBACH, C.J., and VIRDEN, J., agree.

Reid, Burge, Prevallet & Coleman, by: Robert L. Coleman, for appellant.

Lyons & Cone, PLC, by: Jim Lyons; and Brian G. Brooks, Attorney at Law, PLLC, by:

Brian G. Brooks, for appellees.

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