Cite as 2012 Ark. App. 166 ARKANSAS COURT OF APPEALS DIVISION II No. CA11-783 JIM PETERSON and JAN PETERSON Opinion Delivered February 22, 2012 APPELLANTS APPEAL FROM THE BAXTER V. COUNTY CIRCUIT COURT, [NO. CV-06-173-3] WILLIAM “BILL” DAVIS, SHERI HONORABLE JOHNNY RAY DAVIS, SHERMAN FINE, and RUTH PUTMAN, JUDGE FINE APPELLEES AFFIRMED ROBERT J. GLADWIN, Judge For the second time Jim and Jan Peterson, acting pro se, bring this appeal from the order of the Baxter County Circuit Court granting the petition of appellees William “Bill” Davis, Sheri Davis, Sherman Fine, and Ruth Fine for partition and ordering the boat dock at issue in this litigation sold. For reversal, the Petersons argue that (1) the circuit court erred in denying their motion to dismiss appellees’ original complaint; (2) the circuit court erred in denying their motion for judgment on the pleadings; and (3) the circuit court erred in treating the petition for partition as an amended complaint. We affirm. The following background is taken from our opinion on the first appeal. 1 At issue in this protracted litigation is a boat dock located on Bull Shoals Lake and owned by three married couples. Appellees Sheri and William Davis and Ruth and Sherman Fine filed suit in Baxter County Circuit Court on June 27, 2006, against the 1 Peterson v. Davis, 2010 Ark. App. 794.
Cite as 2012 Ark. App. 166 Petersons, alleging that the circuit court had jurisdiction based on a contractual relationship between the parties. The petition alleged that the parties were owners in a boat dock; that the boat dock was subject to standards set forth by the U.S. Army Corps of Engineers; that the boat dock was deteriorating; and that the parties could not agree as to its maintenance in order for the dock to meet the Corps’ standards. The petition sought a court order allowing appellees to demolish the boat dock and build a new one. Finally, appellees asked that the Petersons either share in the cost of the new structure or be relieved of their interest in the boat dock. The Petersons responded by denying the existence of a contract between the parties, stating several affirmative defenses, and asking for the dismissal of appellees’ petition. The Petersons filed a counterclaim alleging damages to the boat dock, psychological abuse, harassment, and abuse of the legal process. Central to their counterclaim was the request that appellees be ordered to produce the contract cited in the original petition. In response to the counterclaim, appellees admitted that no contract existed between the parties regarding the boat dock and affirmatively stated that the reason for the lawsuit was that the majority of the owners of the boat dock agreed to make necessary improvements to the dock and that the Petersons did not. Between September 2006 and May 2008, the Petersons filed several motions aimed at dismissing the suit, and the circuit court denied all of them. After a flurry of petitions relating to ex parte requests, discovery, and scheduling were filed and responded to over the summer of 2008, appellees filed a petition for partition on October 9, 2008, claiming that the parties were all owners of the boat dock at issue and that they could not agree on how to maintain the dock to meet the standards and deadline set by the U.S. Army Corps of Engineers. Appellees sought sale of the boat dock and a division of the proceeds. The Petersons responded that the petition should be denied because it added an additional cause of action that was different from the original complaint. Further, the Petersons claimed that the dock was not subject to partition as each party owned a one-third interest in the dock and could sell their interest at any time. After several more motions were filed, including the Petersons’ motion for stay of trial, the circuit court postponed the matter indefinitely by order filed November 12, 2008. However, on November 13, 2008, the Petersons filed a motion to dismiss, alleging that appellees lacked standing, and on June 10, 2009, the Petersons filed a motion for judgment on the pleadings. On August 14, 2009, the circuit court scheduled a hearing for August 20, 2009, and ruled that it would treat the petition for partition as an amended complaint and dismissed appellees’ first cause of action sounding in contract. On September 11, 2009, the Petersons filed a motion to dismiss the petition for partition, and the circuit court denied this motion by order filed September 17, 2009. 2
Cite as 2012 Ark. App. 166 On January 5, 2010, the circuit court entered a decree granting partition of the boat dock and ordering it sold at public sale as set forth in the order. . . . Peterson, 2010 Ark. App. 794, at 1–3.We dismissed the Petersons’ attempted appeal from the partition decree because the order was not final. Id. at 4. We held that the proper order from which an appeal could be taken in a partition case was the order confirming the sale of the property. Id. After the dismissal of the first appeal, the sale of the boat dock occurred on February 28, 2011. The Petersons bid on the dock during the sale. A bid of $45,000 from a nonparty was accepted. The Petersons objected to the confirmation of the sale, arguing that appellees were attempting to deprive them of their interest in the dock through a fraudulent and frivolous lawsuit. They also asserted that they would have objected to the confirmation of the sale even if they had been the successful bidder. Following a March 29, 2011 hearing, the circuit court confirmed the sale over the Petersons’ objections. The court ordered the proceeds to be divided equally, with each couple receiving one-third of the net proceeds. This appeal followed. The Petersons first argue that the circuit court erred in denying their motions to dismiss appellees’ original complaint for failure to state facts upon which relief can be granted. However, as very recently explained in Courtney v. Ward, 2012 Ark. App. 148, 391 S.W. 3d 686, the denial of a motion to dismiss under Rule 12(b)(6) is not reviewable after a trial on the merits. The Petersons did not preserve the substance of their motion to dismiss by one of the methods suggested in Courtney. Given the similarity of a motion for judgment on the pleadings and a motion to dismiss for failure to state sufficient facts, see Poston v. Fears, 318 3
Cite as 2012 Ark. App. 166 Ark. 659, 887 S.W.2d 520 (1994), we likewise cannot review the Petersons’ second point where they argue that the circuit court erred by denying their motions for judgment on the pleadings. 2 The Petersons also pose questions concerning whether the circuit court erred in denying their motion to dismiss for lack of subject-matter jurisdiction and their motion for findings of fact on the denial of a previous motion. Subject-matter jurisdiction is the power of the court to hear and determine the subject matter in controversy between the parties. Allen v. Cir. Ct. of Pulaski Cnty., 2009 Ark. 167, 303 S.W.3d 70. Circuit courts are the trial courts of original jurisdiction and have jurisdiction of all justiciable matters except when jurisdiction is given to some other court. Ark. Const. amend. 80, § 6(a). In the instant case, the circuit court had jurisdiction over the subject matter of the underlying dispute, which was, prior to the complaint’s amendment, breach of contract. Arkansas Rule of Civil Procedure 52(a) (2011) specifically provides that findings of fact and conclusions of law are unnecessary on decisions of motions under these rules. Although it may be the better practice for the circuit court to make findings on motions, see Bratton v. Gunn, 300 Ark. 140, 777 S.W.2d 219 (1989), the court’s failure to do so is not error and does not indicate, as the Petersons suggest, that the court lacked a proper basis for denying the motion. 2 The rule in Courtney is not new in Arkansas. Older cases have also recognized that a verdict after trial cures any defects in the pleadings. See St. Louis, I. M. & S. Ry. Co. v. Wynne Hoop & Cooperage Co., 81 Ark. 373, 386–87, 99 S.W. 375, 381 (1907); Davis v. Goodman, 62 Ark. 262, 265, 35 S.W. 231, 232 (1896); Sevier v. Holliday, 2 Ark. 512, 576–77 (1840). 4
Cite as 2012 Ark. App. 166 This brings us to the Petersons’ third point in which they contend that the circuit court erred in allowing appellees to amend their complaint to assert a cause of action for partition in that there was never a valid complaint to amend. We will not reverse a circuit court’s decision allowing or denying amendments to pleadings absent a manifest abuse of discretion. Neal v. Sparks Reg’l Med. Ctr., 375 Ark. 46, 289 S.W.3d 8 (2008); Williams v. Brushy Island Pub. Water Auth., 368 Ark. 219, 243 S.W.3d 903 (2006). The amendment of pleadings is encouraged and the circuit court is vested with broad discretion in allowing or denying amendments. Turner v. Stewart, 330 Ark. 134, 952 S.W.2d 156 (1997). A party who opposes an amendment has the burden of challenging it on one of two grounds: “prejudice” to the objecting party or “undue delay” of the trial. Ark. R. Civ. P. 15(a). The test used to determine whether an amendment is prejudicial is whether the party opposing the amendment will have a fair opportunity to defend after the amendment. Travis v. Houk, 307 Ark. 84, 817 S.W.2d 207 (1991). In deciding whether an amendment will cause prejudice, the court looks strictly to the amendment’s potential impact on the pending litigation, not to a separate interest that may be protected by law. Id. The Petersons have not shown that they were prejudiced in any way by the amendment seeking partition. They do not assert that their trial preparation was changed in any way because of the amendment or that the amendment somehow delayed the resolution of this dispute. Therefore, they have not shown that the circuit court abused its discretion in allowing the petition for partition to be considered as an amended complaint. 5
Cite as 2012 Ark. App. 166 The Petersons also argue that the relation-back doctrine cannot apply in the present case because, according to the Petersons, the complaint was a nullity and cannot be amended. However, the Petersons are confusing the issue of whether the amendment relates back to the date appellees filed their original complaint with the issue of whether appellees could amend their complaint. Moreover, that doctrine has no application in the present case because no statute of limitations is involved. See, e.g., Ray & Sons Masonry Contrs. v. U.S. Fid. & Guar. Co., 353 Ark. 201, 114 S.W.3d 189 (2003). Nor is a question of standing involved as to whether appellees are proper parties to bring a partition action, which would also implicate the relation-back doctrine. See Bibbs v. Cmty. Bank of Benton, 375 Ark. 150, 289 S.W.3d 393 (2008). Affirmed. PITTMAN and MARTIN, JJ., agree. Jim Peterson and Jan Peterson, pro se appellants. Ethredge & Copeland, P.A., by: David L. Ethredge and Johnnie Abbott Copeland, for appellees. 6
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