                                Cite as 2017 Ark. App. 297

                ARKANSAS COURT OF APPEALS
                                  DIVISIONS I, III & IV
                                     No. CV-16-885


AMERICAN GAMEBIRD RESEARCH                       Opinion Delivered   May 10, 2017
EDUCATION AND DEVELOPMENT
FOUNDATION, INC.                                 APPEAL FROM THE LAFAYETTE
                  APPELLANT                      COUNTY CIRCUIT COURT
                                                 [NO. 37CV-15-21]

V.                                               HONORABLE CARLTON D. JONES,
                                                 JUDGE

THOMAS BURTON AND CINDY                          REVERSED AND REMANDED
BURTON
                   APPELLEES



                          PHILLIP T. WHITEAKER, Judge

       The appellant American Gamebird Research Education and Development Foundation,

Inc. (AGRED), appeals the Lafayette County Circuit Court order granting summary

judgment to Thomas and Cindy Burton, dismissing AGRED’s trespass claims and granting

the Burtons’ request for a declaratory judgment that they possessed a perpetual, nonexclusive

easement to maintain a dock over and across AGRED’s property and into Lake Erling. We

reverse because the trial court improperly considered documents not authorized under Rule

56 of the Arkansas Rules of Civil Procedure.

                               I. Facts and Procedural History

       The facts are undisputed. In 1952, Lake Erling was created through an Act of

Exchange. By the Act of Exchange, the United States obtained an easement to acreage

owned by International Paper for the purpose of building a flood-control dam and reservoir,
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and International Paper was afforded the right to use the water in the reservoir for its

industrial purposes.

       In 2004, subsidiaries of International Paper granted a Corrected Lake Easement to Lake

Erling Properties Limited Liability Corporation, an adjacent landowner, providing access to

Lake Erling. Pursuant to the Corrected Lake Easement, Lake Erling Properties LLC’s

easement rights were to be exercised in compliance with existing policies on land use around

Arkansas Game and Fish Commission (AGFC) lakes.

       AGRED is the successor in interest to International Paper. The Burtons purchased

property from Lake Erling Properties, LLC, subject to the Corrected Lake Easement.

Pursuant to the easement, the Burtons built and maintained a 4 foot by 89 foot dock and a

15 foot by 20 foot deck on Lake Erling. To access their dock and deck, the Burtons cross

AGRED property.

       Starting in May 2014, AGRED began sending notices and invoices to property owners

around Lake Erling, including the Burtons, indicating that it would begin selling yearly

easements and land-use permits granting the right to traverse over AGRED’s property to

access Lake Erling and to have and maintain structures thereon, such as docks and boathouses.

AGRED specifically notified the Burtons that they could either purchase a land-use permit

for their dock from AGRED or provide evidence of a permit from the AGFC. The Burtons

did not respond to any of the notices or invoices. AGRED then mailed notice to the Burtons

giving them ninety days to either purchase the required land-use permit or remove their dock

and deck from Lake Erling. The Burtons again refused to comply.


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       In May 2015, AGRED filed suit against the Burtons for trespass, seeking removal of

their dock and deck and damages for the reasonable value of the Burtons’ use of the property

until the structures are removed. In its complaint, AGRED contended that the Corrected

Lake Easement required compliance with existing policies on land use around AGFC lakes;

that, as a result, the Burtons must comply with the policies of the AGFC; and that, because

AGFC policies require landowners to obtain a permit for docks and the Burtons had not

obtained one from either AGFC or AGRED, they had violated the Corrected Lake Easement

and their dock and deck were not legally on AGRED property.

       The Burtons answered denying that an AGFC permit was required. They also

counterclaimed, seeking a declaratory judgment that they had a nonexclusive easement across

the property and that AGRED had no right to impose any additional burden on that

easement.

                                   II. Summary Judgment

       The Burtons filed a motion for partial summary judgment. The Burtons claimed that,

pursuant to the Corrected Lake Easement, they had a nonexclusive perpetual easement to

access 100 percent of Lake Erling for the full enjoyment of the lake and to construct docks,

piers, boathouses, launch ramps, and other structures and that their rights were not impacted

by the easement’s reference to AGFC policies. They further argued that the policies of AGFC

did not apply to Lake Erling and that AGFC does not require a permit to construct a dock

thereon. In support of their motion for summary judgment, the Burtons attached a letter from

the AGFC. This letter stated that Lake Erling was not an AGFC lake, that its AGFC policies


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regarding permits did not apply, and that the AGFC was not bound by the Corrected Lake

Easement. Therefore, the Burtons contended that they were not out of compliance with the

restrictions of the easement.

       AGRED responded, asserting that the Burtons’ easement was not absolute and was

subject to the restrictions set forth therein, including the policies of the AGFC. They further

responded that because the Burtons failed to comply with those policies by obtaining an

AGFC permit, they violated the Corrected Lake Easement, and AGRED was within its rights

to order the structures removed. Additionally, AGRED argued that the policies of the AGFC

applied regardless of whether the AGFC intended to enforce them. In the alternative, they

argued that because AGRED’s land-use policies were substantially similar to AGFC’s policies,

if AGFC’s policies were found to be ineffective, the court could alter or modify the

agreement to include AGRED’s policies to fulfill the intent of the grantors. With regard to

the AGFC letter attached to the Burtons’ motion, AGRED challenged the admissibility of the

letter in its response to summary judgment based on noncompliance with Rule 56.

       The trial court granted the Burtons’ motion for summary judgment and dismissed

AGRED’s complaint in its entirety. The trial court also granted judgment in favor of the

Burtons on their counterclaim. In so finding, the Court interpreted and construed the

language contained in the Corrected Lake Easement. The court found that the policies of the

AGFC, including the permitting of docks, did not apply and granted the Burtons an

unrestricted easement. AGRED appeals the trial court’s granting of the Burtons’ motions for

summary judgment asserting that the trial court erred in construing the language of the


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Corrected Lake Easement, in determining that the policies of the AGFC (including the

permitting of docks) did not apply, and in granting the Burtons an unrestricted easement.

       We need not address the merits of AGRED’s argument on summary judgment because

the court erred as a procedural matter in granting summary judgment. Summary judgment

is governed by Rule 56 of the Arkansas Rules of Civil Procedure. Pursuant to Rule 56(c) and

(e), the circuit court may consider affidavits, depositions, admissions, and answers to

interrogatories in summary-judgment proceedings. UMLIC 2 Funding Corp. v. Butcher, 333

Ark. 442, 970 S.W.2d 211 (1998); Davis v. Schneider Nat’l, Inc., 2013 Ark. App. 737, 431

S.W.3d 321. Where hearsay is offered, and would not be admissible at trial, the hearsay is not

considered in the summary-judgment analysis. See Holt Bonding Co. v. First Fed. Bank of Ark.,

82 Ark. App. 8, 110 S.W.3d 298 (2003). Stated differently, all evidence submitted in the

course of summary-judgment proceedings must be under oath. See Hadder v. Heritage Hill

Manor, Inc., 2016 Ark. App. 303, 495 S.W.3d 628; Davis, supra.

       Here, the letter from the AGFC was not under oath, nor was the document in the

form of an affidavit. It was therefore not admissible for consideration by the trial court in the

summary-judgment proceeding. It is clear from the record that the trial court did consider

the letter in making its ruling. First, the trial court entered an order that specifically stated it

considered “all exhibits,” which would include the inadmissible AGFC letter. Second, in its

oral ruling, which was incorporated into the order by reference, the trial court expressly found

that the AGFC policies applied only to commission-owned lakes and not commission-used

lakes and that the AGFC, to date, had not approved any land-use policy applicable to


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commission-used lakes. Further, the trial court expressly found that AGFC used Lake Erling

at the invitation of International Paper to further the goals and objectives of the Commission.

The only way the court could have arrived at these conclusions was by consideration of the

AGFC letter. Because the trial court improperly considered documents in granting summary

judgment, we must reverse.

       Reversed and remanded.

       GLADWIN and BROWN, JJ., agree.

       HIXSON and MURPHY, JJ., concur.

       GRUBER, C.J., and VIRDEN, HARRISON and GLOVER, JJ., dissent.

       KENNETH S. HIXSON, Judge, concurring. I concur with the majority that the trial

court improperly considered documents not authorized by Rule 56 of the Arkansas Rules of

Civil Procedure and that the case must be reversed and remanded; however, I would reverse

and remand for additional reasons.

       In reaching its decision granting appellee’s summary judgment and dismissing the

appellant’s complaint, the trial court reviewed the 1952 Act of Exchange between the United

States and International Paper (IP), which created Lake Erling, and the 2004 Corrected Lake

Easement between AGRED1 and Lake Erling Properties, LLC. The Arkansas Game and Fish

Commission Land Use Policy (AGFC policy) was attached to the Corrected Lake Easement

as an exhibit. It is from the Act of Exchange, the Corrected Lake Easement, and the AGFC

policy that the trial court concluded that the intent of the grantor could be clearly found


       1
        The easement was actually granted by a predecessor of AGRED.

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within the four corners of the document itself and that the paragraphs were easily harmonized

within the whole of the instrument. I disagree.

       The trial court granted partial summary judgment to the Burtons and dismissed

AGRED’s complaint stating, inter alia, that the Corrected Lake Easement was consistent with

the intent expressed in IP’s grant of exchange to place “no restriction on the public’s use of

the lake.” However, from a plain reading of the documents, the contents of the Act of

Exchange and the Corrected Lake Easement are inconsistent, which creates an ambiguity that

cannot be disposed of on summary judgment.

       After AGRED filed its complaint for trespass against the Burtons, the Burtons filed a

counterclaim for declaratory judgment. Specifically, the Burtons “pray[ed] for a judgment

declaring their right to unencumbered access to all the waters of Lake Erling and the land that

lies beneath the waters of Lake Erling pursuant to the Corrected Lake Easement attached as

Exhibit A to Plaintiff’s Complaint.” Additionally, the Burtons “pray[ed] for a declaratory

judgment that Counter-Defendant cannot impose any burden on Counterclaimants beyond

that expressly stated in the Corrected Lake Easement.”

       The Burtons subsequently filed a motion for partial summary judgment. While the

sole issue between the parties appears to be whether AGRED could require the Burtons to

purchase a dock permit, from a fair reading of the record, the order of the trial court

ostensibly abolished all restrictions and regulations on Lake Erling. In its order granting partial

summary judgment, the trial court incorporated by reference its oral findings.




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       To put the trial court’s order in context, a review of some of the trial court’s pertinent

comments and findings reveals the expansive scope of the trial court’s order. After the trial

court reviewed the Act of Exchange, it quoted paragraph 5(d), which stated, “It is understood

and agreed that International Paper Company shall place no restriction upon the public use

of the water area of the industrial water supply reservoir located on its lands, either flood

control, recreational, wildlife, or fishing and hunting purposes.” The trial court then

expounded on the issue of no restrictions on the lake area:

       [T]he defendants [Burtons] request the Court to find there to be no genuine issue as

       to any material fact and that they are entitled to judgment as a matter of law and that

       the Court enter the declaratory judgment finding Defendants to have a right of access

       to Lake Erling, including the lake bed and express right to construct a dock and boat

       house on their adjacent property.

       ....

       In some respects the parties agree that the rights, obligations, and competing interests

       of the litigants are controlled by the Act of Exchange and the subsequent Corrected

       Lake Easement.

       ....

       AGRED argues this perpetual and non exclusive [Corrected Lake E]asement is subject

       to the following language found on page 1056 of the Corrected Lake Easement: Said

       easement rights shall be exercised in compliance with Subsection (a), the existing




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      policies on land use around the Arkansas Game and Fish Commission lakes, as more

      particularly described in Exhibit 1 attached hereto[.]

      ....

      The Court then is called upon to interpret the intent of the grantor in the making of

      the conveyance in the Corrected Lake Easement.

      After the trial court made these introductory comments, it then added the following:

      I find the intent of the grantor to be clearly found within the four corners of the
      document itself and do not consider extrinsic evidence in this interpretation of the
      instrument.1 Although the provisions cited by the litigants in support of their position
      such as perpetual non exclusive easement versus the language regarding it must be
      exercised in compliance with [what] appears to create an ambiguity by conflicting
      paragraphs. The paragraphs are easily harmonized within the whole of the instrument.
      ....

      [Pertaining to the AGFC policy, that paragraph reads as follows:] It is specifically
      understood and agreed that the grantee shall have the full responsibility of obtaining
      any and all federal, state, or local government permits or licenses for grantee’s
      construction upon or use of the easement property as contemplated hereby. And
      grantee shall fully comply with all of the laws, rules, regulations, and requirements of
      any federal, state, or local governmental authority, agency, commission, or other
      regulatory body[.]

      ....

      It is clear from the language used by the grantor it was IP’s intent to provide a
      governmental agency or body with regulatory authority to enforce its laws, rules, or
      regulations on the lake and to make the grantee’s easement subject to and subservient
      to state, federal, and local rule making authority. The property being a lake, it would
      only be logical to cite the Arkansas Game and Fish Commission as an agency with
      whose rules and regulations one would have to contend. The language places the
      grantees on notice of such a reality.



      1
      Whether the trial court improperly reviewed and relied on the extrinsic evidence of
the AGFC letter is the subject matter of the majority opinion, which I join.

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       After reviewing and quoting from several sections of the restrictions set forth in the

AGFC policy, which was attached as exhibit 1 to the Corrected Lake Easement, the trial court

concluded,

       The language of the Corrected Lake Easement as a whole clearly sets forth the intent
       of the grantor to allow grantee Lake Erling Properties to have a perpetual easement
       with the right to enter onto the lands and improve it by way of building docks and
       other structures and improvements that would encourage people to use the lake for
       recreational activities and build homes on lakefront properties. . . . The easement granted
       Lake Erling Properties is consistent with the intent expressed in the original Act of Exchange and
       that is to place no restriction on the public’s use of the lake. . . . Therefore, this Court finds
       that there be no remaining issue of genuine material fact and [that] . . . Defendants
       possess a perpetual, non-exclusive easement as described in the Corrected Lake
       Easement.

(Emphasis added.)

       While the trial court’s order is perhaps ambiguous in its scope, the underlying premise

of the order is easily gleaned from the trial court’s own words: “The easement granted Lake

Erling Properties is consistent with the intent expressed in the original Act of Exchange and

that is to place no restriction on the public’s use of the lake.” (Emphasis added.) Hence, the

only reasonable interpretation of the trial court’s order is that there are no restrictions on the

public’s use of the lake including, in toto, the AGFC land use policy. Therefore, Lake Erling

has now been declared by the court regulation and restriction free.

       That leads to the questions on appeal: whether there are no issues of material fact

regarding the grantor’s intent as it relates to restrictions on the lake and whether the grantor’s

intent can be determined from the four corners of the document. In my opinion, the answers

are no. The trial court cited language from the Act of Exchange, which provided that the use

of the lake would be unrestricted. However, the trial court also stated, “It is clear from the

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language used by the grantor it was IP’s intent to provide a governmental agency or body

with regulatory authority to enforce its laws, rules, or regulations on the lake.” Further, the

Corrected Lake Easement provides that the

       grantee shall have the full responsibility of obtaining any and all federal, state, or local
       government permits or licenses . . . [and that the] grantee shall fully comply with all
       of the laws, rules, regulations, and requirements of any federal, state, or local
       governmental authority, agency, commission, or other regulatory body . . . [as they]
       may relate to [the] protection of the environment, water, air and soil, both surface and
       subsurface . . . and to make the grantee’s easement subject to and subservient to state,
       federal, and local rule making authority.

Clearly, these commands in the documents are restrictions placed on the public’s use of the lake

and its adjacent land. By going no further, the Act of Exchange and the Corrected Lake

Easement provide inconsistent positions on whether the lake is subject to restrictions or

regulations. This inconsistency causes the disposition of this case to be unsuitable for

summary judgment and requires the case be reversed and remanded to the trial court for a trial

on the merits to determine the grantor’s intent.

       MURPHY, J., joins.

       BART F. VIRDEN, Judge, dissenting. I respectfully dissent from the majority

opinion. American Gamebird Research Education and Development Foundation,

Inc.(AGRED) objected to the Arkansas Game and Fish Commission’s (AGFC or

“Commission”) letter on the basis that it was unsworn, unauthenticated, “blatant hearsay,”

and an ex parte communication by a nonparty. To the extent that the trial court relied on that

letter, I agree with the majority that doing so was error.




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       In a case where the parties agree on the facts—the majority asserts that “[t]he facts are

undisputed”—an appellate court simply determines whether the appellee was entitled to

judgment as a matter of law. Washington Cty. v. Bd. of Trs. of the Univ. of Ark., 2016 Ark. 34,

480 S.W.3d 173. AGRED and the Burtons appear to agree that the “Corrected Lake

Easement” controls and that the AGFC’s land-use policies were incorporated into the

“Corrected Lake Easement.” Insofar as the policies relate to construction permits, the plain

language indicates that the policies apply to Commission-owned lakes, and Lake Erling is not

among the lakes listed in the handbook. The inescapable conclusion is that the Burtons were

not required to obtain a permit for their dock and deck from the AGFC, which AGRED

appears to concede given its “alternative permitting system.”

       As to issues of law presented, the appellate court’s review is de novo, meaning that the

entire case is open for review. Washington, supra. I acknowledge that the AGFC’s letter was

not proper evidence to support summary judgment; thus, the letter cannot be considered in

our de novo review of whether summary judgment was appropriate. I would affirm because

the Burtons were nonetheless entitled to judgment as a matter of law based on the evidence

that was properly submitted, i.e., the easement and incorporated policies.

       It is stated in the majority opinion that “all evidence submitted in the course of

summary-judgment proceedings must be under oath. Hadder v. Heritage Hill Manor, Inc., 2016

Ark. App. 303, 495 S.W.3d 628.” In fact, in Davis v. Schneider National, Inc., 2013 Ark. App.

737, 431 S.W.3d 321, we held, “All evidence submitted in the course of summary-judgment

proceedings must be under oath. Ark. R. Civ. P. 56(e).” While it is an interesting exercise


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to trace the evolution and transmogrifications of such a statement through past years and cases,

it need not be done here. Suffice it to say, at the very least, our courts have sent mixed

messages, and at the most, that is not the law and cannot be found anywhere in the text of

Rule 56. Rule 56 also allows for the pleadings to be considered by the trial court when

deciding a motion for summary judgment. Rule 7 of our Rules of Civil Procedure defines

pleadings as “a complaint and an answer; a counterclaim; a reply to a counterclaim

denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third

party complaint, if a person who was not an original party is summoned under the provisions

of Rule 14; and a third party answer, if a third party complaint is served. No other pleadings

shall be allowed.” None of the above pleadings are required to be made under oath, nor are

they required to contain “admissible evidence.” Yet by the very language of Rule 56, they

may be properly considered in a summary-judgment proceeding.

       The trial court had available to review, and stated that it did review, the pleadings in

the case. There were multiple pleadings in the case that included the AGFC policies at issue.

In other words, the trial court reviewed much of the same information contained in the letter

in other, nonobjectionable pleadings. To be fair, the letter went much further, but the

evidence was there that the AGFC regulations applied to Commission-owned lakes, and Lake

Erling was not one of them.

       Moreover, in reaching its conclusion that the AGFC had no authority to require a

landowner to obtain a construction permit, the trial court’s primary point in its oral ruling was

that the AGFC has no ownership interest in Lake Erling. That fact is established by the


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policies themselves. See, e.g., Chiodini v. Lock, 2010 Ark. App. 340, 374 S.W.3d 835 (This

court saw no reversible error where, over Chiodini’s objection, Lock presented live testimony

from witnesses to supplement his response to a summary-judgment motion because, even

though Rule 56 does not permit such supplementation, the trial court was correct in

observing that the testimony revealed little more than what was contained in the witnesses’

affidavits attached to Lock’s response).

       Because this case involves a question of law, which we review de novo, I would affirm.

There is nothing for the trial court to do on remand.

       Gruber, C.J., and HARRISON and GLOVER, JJ., join.

       Bell & Boyd, PLLC, by: Michael W. Boyd and Karen Talbot Gean, for appellants.

       McMath Woods P.A., by: Samuel E. Ledbetter; and Joseph Hamilton Kemp, PLLC, by:

Joseph Hamilton Kemp, for appellees.




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