Bingham v. C & L Electric Cooperative

Cliff Hoofman, Judge,

concurring.

I agree with the majority opinion’s decision to affirm this case but would do so on the ground that appellant has failed to challenge an independent and alternative basis for the circuit court’s grant of summary judgment. Thus, I must respectfully concur.

In appellant’s complaint, he sought to recover an “undetermined” amount of damages for the trees cut down by appel-lee. Appellee’s motion for summary judgment alleged that appellant had failed to raise any genuine issue of material fact as to his claims and that appellee was entitled to judgment as a matter of law on each and every count in the complaint. Appel-lee also noted in its brief attached to the motion that appellant had not alleged any damage to the property due to the removal of the trees or that the removal had affected the fair market or rental value of the property.

At the summary-judgment hearing, the circuit court asked appellant’s counsel about what he anticipated his client would testify regarding the value of the trees, and counsel replied that they had no evidence as to their value at that time. At the conclusion of the hearing, the circuit court stated that it was inclined to grant summary judgment because there |swas no cause of action here, and “further, ... even in court here, the Plaintiff was unable to give this Court, as he was unable to in his deposition, any indication as to the value.” Consistent with these findings, the circuit court’s order granting summary judgment stated in pertinent part:

11. Alvester Bingham failed to produce any counter-affidavits rebutting Robert Rupe’s testimony and has failed to meet proof with proof. The undisputed evidence of record demonstrates that. C & L Electric had an easement by prescription across Alvester Bingham’s property, that it had a right and duty to maintain vegetation growing within its easement, and that the C & L’s experience plus consideration of public safety and service required the removal of the trees complained of by the Plaintiff.
12. Alvester Bingham was unable to provide this Court with any proof of the value of the trees during the August 5, 2013, summary judgment hearing. Therefore, the Court also finds that Plaintiff failed to present the Court with any evidence that it was damaged by the Defendants’ conduct.
13. Therefore, the Court finds that there are no genuine issues of material fact and that C & L Electric Cooperative and John Does 1 through 3 are entitled to judgment as a matter of law.

On appeal from the circuit court’s grant of summary judgment, appellant challenges only the court’s finding that appel-lee had an easement by prescription over his property. He does not address the second basis for the circuit court’s decision, which was that he had failed to prove damages from appellee’s conduct. Where an appellant does not challenge a trial court’s independent and alternative basis for its ruling, we must summarily affirm without addressing the merits of either basis. See, e.g., Traveler’s Cas. & Sur. Co. v. Sweet’s Contracting, Inc., 2014 Ark. 484, 450 S.W.3d 229; Duke v. Shinpaugh, 375 Ark. 358, 290 S.W.3d 591 (2009); Coleman v. Regions Bank, 364 Ark. 59, 216 S.W.3d 569 (2005); Fairpark, LLC v. Healthcare Essentials, 2011 Ark. App. 146, 381 S.W.3d 852. I would therefore summarily 19affirm the circuit court’s decision without addressing the merits of appellant’s argument on appeal.