2015 ARK 413 - Williams v. Pate.dissent

                                   Cite as

2015 Ark. 413

SUPREME COURT OF ARKANSAS
No. CV-15-498

DOROTHY WILLIAMS Opinion Delivered November 5, 2015
APPELLANT
V. APPEAL FROM THE WHITE
COUNTY CIRCUIT COURT
ROGER PATE, TOMMY RAMSEY, [NO. CV-2012-214]
AARON RUSSELL, JERROD
WILLIAMS, TONY MARSH, JIM HONORABLE THOMAS HUGHES,
MARSH, and THE PANGBURN JUDGE
SCHOOL DISTRICT
APPELLEES DISSENTING OPINION ON DENIAL
OF REVIEW.

JOSEPHINE LINKER HART, Associate Justice

I dissent from the majority’s decision not to grant review in this case. The court of

appeals, in affirming a grant of summary judgment, made errors of law—essentially creating

a new tort: negligent trespass. To accomplish this, as the petitioner notes, the court of

appeals has ignored statutory law that makes its holding contrary to law.

Dorothy Williams owns property adjacent to land owned by the Pangburn School

District (the PSD). She alleged that employees of the PSD trespassed on her property and

cut down a number of trees. There is no dispute that the PSD failed to survey the property

prior to cutting the trees and that a subsequent survey showed that the trees were on

Williams’s property. However, in granting the PSD’s summary-judgment motion, the

circuit court found dispositive the fact that Williams had failed to offer any proof that the

PSD had any knowledge that it was violating her property rights at the time the trees were
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2015 Ark. 413


being cut. Accordingly, the circuit court reasoned, the PSD’s conduct was, at worst,

negligent, and therefore the PSD was entitled to qualified immunity. In my view, the circuit

court made an obvious mistake of law.

       Trespass is an intentional tort. 75 Am. Jur. 2d Trespass § 9, at 16 (1991). The intent

element is satisfied if the actor intended to commit the physical act. Id. Although negligent

acts committed by public officials in the course of their official duties are protected by

qualified immunity, intentional torts are not likewise protected. Battle v. Harris,

298 Ark. 241

766 S.W.2d 431

 (1989).

       With regard to cutting trees, Arkansas Code Annotated section 15-32-101 imposes

an affirmative duty on the person cutting the trees to ascertain the correct boundary before

cutting. This was not done in the case before us. Furthermore, a mistaken belief about a

boundary does not exonerate the perpetrator. Under Arkansas Code Annotated section

18-60-102, such a mistaken belief as to ownership of the trees can only mitigate the

damages. In that case, the person would only owe actual damages; otherwise, the person

would be liable for treble damages.

Id.


       In affirming, the court of appeals relied on City of Alexander v. Doss,

102 Ark. App. 232

284 S.W.3d 74

 (2008), a case where, in dicta, the court of appeals suggested that an

action for trespass could be barred by the qualified immunity granted by Arkansas Code

Annotated section 21-9-301. However, in Doss, the trespass that it discussed hypothetically

resulted from the City of Alexander’s alleged negligent maintenance of a drainage ditch,

which allegedly allowed for the erosion of Doss’s property. There was no discussion about


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2015 Ark. 413


whether the conduct was deliberate. Furthermore, assuming arguendo, that Doss did hold

that section 21-9-301 provided qualified immunity for the intentional tort of trespass, this

holding would directly conflict with Battle v.

Harris, supra.

 It is axiomatic that the court of

appeals cannot overrule supreme court precedent.             This principle has been widely

acknowledged by the court of appeals. See, e.g., Watkins v. Arkansas Elder Outreach of Little

Rock, Inc.,

2012 Ark. App. 301

420 S.W.3d 477

; Rice v. Ragsdale,

104 Ark. App. 364

292 S.W.3d 856

 (2009); Breckenridge v. Ashley,

55 Ark. App. 242

934 S.W.2d 536

 (1996).

Suffice it to say, the dicta in Doss did not alter the law of trespass.

       I would grant the petition for review.




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