                                 Cite as 2015 Ark. App. 327

                 ARKANSAS COURT OF APPEALS
                                         DIVISION II
                                        No. CV-14-595


                                                   Opinion Delivered   May 20, 2015
DOROTHY WILLIAMS
                                APPELLANT          APPEAL FROM THE WHITE
                                                   COUNTY CIRCUIT COURT
V.                                                 [NO. CV-2012-214]

ROGER PATE, TOMMY RAMSEY,                          HONORABLE THOMAS HUGHES,
AARON RUSSELL, JERROD                              JUDGE
WILLIAMS, TONY MARSH, JIM
MARSH, and THE PANGBURN
SCHOOL DISTRICT                                    AFFIRMED
                     APPELLEES



                             M. MICHAEL KINARD, Judge

       Appellant Dorothy Williams appeals from the trial court’s order granting summary

judgment to appellees, Pangburn School District and its employees and agents. Williams

argues that the trial court erred in finding that appellees were entitled to qualified immunity.

We affirm.

       In 2008, Pangburn School District (PSD) acquired property owned by Dwight and

Lura Fouse, which was located adjacent to property owned by Williams. In the spring of

2009, appellees cut trees from the property they believed had been acquired from the Fouses.

A survey conducted in 2010 revealed that the trees were cut from Williams’s property.

Williams filed suit against appellees for trespass, conversion, and felony tort. She alleged that

appellees had unlawfully entered upon her property, cut or destroyed six trees, and damaged

her land. Williams contended that appellees had not had the land surveyed prior to entry and
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did not rely in good faith on any established borders. She claimed that appellees had no

probable cause to believe the property was their own and that their acts were done

knowingly, willfully, maliciously, and in deliberate indifference to her property rights.

       Appellees filed an answer asserting the affirmative defense of qualified immunity.

Appellees later filed a motion for summary judgment on this basis, alleging that, as a public

school district and its employees and agents, they were immune from Williams’s claims

pursuant to Arkansas Code Annotated section 21-9-301 (Supp. 2013). In support of their

motion, appellees filed, among other items, the affidavits of Jerrod Williams, Roger Pate, and

Dwight Fouse.

       The proof offered in the affidavits established that for years the Fouses had openly

possessed and used as their own the tract of land where the trees had been located, which was

east of a line of bushes next to a storage shed. In April 2006, PSD was cleaning out a ditch

that ran along the roadway next to the school gym, the tract used by the Fouses, and

Williams’s property.    Williams asked Roger Pate, the director of maintenance and

transportation for PSD, not to clear any trees from her property, and he did not. Williams

also discussed with Pate the location of her east boundary line, which adjoined property

believed to be owned by the Fouses. Dwight Fouse joined the conversation. Williams told

Pate, in the presence of Fouse, that her east property line was located along a row of bushes

behind a storage shed on the east side of her house. Fouse agreed in the presence of Williams

and Pate that the location of the property line was along the row of bushes. Fouse had no

objection to PSD cleaning out the ditch along his property, and Williams was satisfied with


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the work.

       In 2008, PSD acquired several tracts of property for the expansion of school facilities,

including the Fouse property, and in 2009, PSD began clearing these properties. PSD

believed that the property line had been established and agreed upon as being along the row

of bushes. As part of the planning for the school-improvement projects, a survey was

completed in 2010, which revealed that Williams owned the tract from which the trees had

been cut. PSD contacted Williams to explain what the survey reflected and that PSD had

mistakenly believed the trees were on its property. Appellees argued that their mistaken

belief resulted in a negligent act for which they are immune.

       Williams filed a response to the motion for summary judgment along with her

deposition and an affidavit from Fouse. She asserted that she had given permission to Fouse

to use her property because he did not have a front yard; that she never had a conversation

with Pate and Fouse regarding her boundary line; and that neither she nor Fouse ever gave

PSD authority to remove any trees. Williams said that she saw appellees splitting the trees

after they had been cut down and that months later, PSD used machinery that further

damaged her property. Tony Marsh later apologized to her for cutting the trees and said he

would not have done it if he had known it was her land. Williams argued that appellees had

committed intentional torts, for which there is no immunity. She claimed that appellees’

failure to complete a survey before cutting the trees made them liable for trespass.

       After a hearing, the trial court granted the motion for summary judgment. The trial

court determined that Williams had failed to offer proof that appellees had any knowledge


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at the time the trees were cut that they were violating Williams’s property rights, and at

worst, appellees’ conduct was negligent. Thus, appellees were entitled to qualified immunity

pursuant to section 21-9-301.

       Our law is well settled that summary judgment is to be granted by a trial court only

when it is clear that there are no genuine issues of material fact to be litigated, and the party

is entitled to judgment as a matter of law. City of Malvern v. Jenkins, 2013 Ark. 24, 425

S.W.3d 711. Once the moving party has established a prima facie entitlement to summary

judgment, the opposing party must meet proof with proof and demonstrate the existence of

a material issue of fact. Id. On appellate review, we determine if summary judgment was

appropriate based on whether the evidentiary items presented by the moving party in support

of the motion leave a material fact unanswered. Id. We view the evidence in the light most

favorable to the party against whom the motion was filed, resolving all doubts and inferences

against the moving party. Id. Our review focuses not only on the pleadings, but also on the

affidavits and other documents filed by the parties. Id.

       The issue of whether a party is immune from suit is purely a question of law and is

reviewed de novo. City of Fayetteville v. Romine, 373 Ark. 318, 284 S.W.3d 10 (2008).

Arkansas Code Annotated section 21-9-301 provides as follows:

       (a) It is declared to be the public policy of the State of Arkansas that all . . . school
       districts . . . shall be immune from liability and from suit for damages except to the
       extent that they may be covered by liability insurance.1


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        Appellees provided evidence with their motion for summary judgment that they
were not covered by liability insurance for the claims in this case, and Williams did not
dispute this proof.

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       (b) No tort action shall lie against any such political subdivision because of the acts of
       its agents and employees.

The supreme court has consistently held that section 21-9-301 provides immunity from civil

liability for negligent acts, but not for intentional acts. Fayetteville, supra.

       Williams argues that she sued appellees for the intentional tort of trespass, for which

there is no immunity. She notes that appellees failed to have the property surveyed before

they cut the trees, which she contends was required by Arkansas Code Annotated section

15-32-101 (Repl. 2009). Appellees argue that their trespass was not intentional because they

had a reasonable belief that the trees they cut were on PSD property. We find appellees’

argument more convincing. While the tort of trespass may be categorized as an “intentional”

tort, an analysis of the application of qualified immunity does not stop with that

determination. Simply because an actor’s conduct satisfies the type of intent necessary to

establish the tort of trespass, it does not follow that the same conduct is necessarily an

intentional act that bars application of the doctrine of qualified immunity.

       In Passmore v. Hinchey, 2010 Ark. App. 581, 379 S.W.3d 497, this court considered

whether the trial court abused its discretion in granting a county judge’s motion to dismiss

based on qualified immunity under section 21-9-301. Passmore filed suit against the county

judge and his employees and agents, alleging that they had been trespassing on his private

road for months and had ignored his requests to stop. He alleged that they had continued

to travel across his property despite being notified under Arkansas Code Annotated section

5-39-304 that any such use of the property would be treated as a criminal trespass. This

court held that the allegation in Passmore’s complaint was for an intentional trespass, noting

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that Passmore immediately told appellees to cease their use of his road and then filed a notice

of criminal trespass; thus, appellees were not immune. The conduct at issue in Passmore was

clearly deliberate and with knowledge that the property owner was claiming trespass.

       In City of Alexander v. Doss, 102 Ark. App. 232, 284 S.W.3d 74 (2008), however, this

court noted that an action for trespass based on erosion of property resulting from the city’s

failure to properly maintain a drainage ditch would have been barred by qualified immunity.

Unlike the conduct in Passmore, the conduct in Alexander was not deliberate, and the alleged

trespasser had no knowledge that the property owner regarded it as trespass. Intentional torts

involve consequences which the actor believes are substantially certain to follow his actions.

Baptist Health v. Murphy, 365 Ark. 115, 226 S.W.3d 800 (2006). We conclude that it is a

deliberate, knowing trespass that bars application of the doctrine of qualified immunity.

       Here, appellees denied in their affidavits any knowledge that they were trespassing on

Williams’s property. There is no evidence that she objected to the trespass while it was

occurring. In fact, it appears that Williams objected only after PSD had a survey done and

informed her of its error. She asserts that appellees deliberately failed to conduct a survey so

that they could claim ignorance later, but she offered no proof to support this allegation.

Although the violation of statutes may be considered evidence of negligence, Young v.

Blytheville School District, 2013 Ark. App. 50, 425 S.W.3d 865, Williams’s proof failed to show

that appellees trespassed on her property deliberately and with knowledge that they were

doing so.


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       In Brown v. Fountain Hill School District, 67 Ark. App. 358, 1 S.W.3d 27 (1999), Brown

filed suit alleging the tort of outrage, and the trial court granted summary judgment to the

school district. This court held that Brown’s complaint did not plead facts supporting its

allegations that the school district’s conduct was outrageous, and the facts showed the alleged

conduct amounted to negligence. Because the claim was based upon the theory of

negligence, the suit was barred by qualified immunity. Here, although Williams sufficiently

pled a claim for trespass, the proof did not support her allegations that appellees knowingly

trespassed.

       Williams also contends that the trial court disregarded her proof and relied on

appellees’ proof regarding the alleged conversation about the boundary line. She points to

the trial court’s discussion of this issue at the hearing; however, as appellees point out, the

court stated that it “can’t conclude one way or the other” that the conversation took place.

Even when viewing the evidence in the light most favorable to the party against whom the

motion was filed and resolving all doubts and inferences against the moving party, as we

must, we conclude that Williams offered insufficient proof to rebut the proof that appellees

negligently trespassed onto her property.

       Under these facts, we hold that summary judgment was proper.

       Affirmed.

       GLOVER and HIXSON, JJ., agree.




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The Henry Law Firm, P.A., by: Matthew Henry, for appellant.

Lightle, Raney, Streit & Streit, LLP, by: Donald P. Raney, for appellees.




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