| TThis аppeal concerns the right to use burial plots in the Tyro Cemetery located in Lincoln County, Arkansas. Here, the dispute concerns burial spaces lying between the King and Key family plots. King sought to have a Key family member disinterred and the adjoining grave site declared to be solely for King family use. King did nоt prevail, and on appeal, he argues (1) that the trial court erred in dismissing Griffin Funeral Service from his lawsuit; and (2) that the trial court’s finding, that King’s claim to two particular grave spaces was barred by the doctrine of laches, was clearly against the preponderance of the evidence. We affirm.
Appellant Kenneth King initially filed suit in August 2007 claiming that the neighboring burial-right owners, the Key family, had wrongfully buried three family members inside the King plot and encroached on one more burial space. King sued the trustees of the 12cemetery association (A.O. French and John Edd Curry)
Griffin answered the complaint, asserting (1) that his employees acted solely at the direction of the cemetery association in excavating and closing the plot for the Mаrch 2006 burial such that dismissal was warranted, and (2) that King had failed to join the next of kin of the buried person as necessary parties. The association answered with a general denial of the allegations and added the defense of laches. King amended his complaint to name Paul Key (Key family representative) and Rebecca Myers (member of Key family and widow of George Myers) as additional defendants. Paul and Rebecca filed general denials of the allegations. In April 2009, the trial judge entered an order dismissing with prejudice King’s complaint against Griffin on the basis of Ark. R. Civ. P. 12(b)(6). King sought to appeal thаt dismissal but later withdrew his notice of appeal regarding that order.
In January 2010, the case was tried to the bench. The evidence was largely undisputed. The cemetery land is owned by the cemetery association, donated to it by the King family |3some years ago. Families desiring to purchase a licеnse or right to certain areas for burial would pay $250 to the association, which covered basic maintenance. Generally, the designated family plots were 24' x 24', but there were variances due to obstructions like trees or driveways. The family plots typically hold up to twelve burial spacеs. Between 1977 and 1980, the Key and King family plot licenses were purchased. The Key plot (# 125) is directly north of the King plot (# 126). Both family plots face east along a driveway, which would be considered the frontage of each plot. As drawn, each plot would appear to accommodatе more grave sites along the front, so the meeting point between the family plots would be two grave sites “long” along the depth of the family plots.
The first body interred between the two family plots was of Bessie King, who died in 1980. Someone placed corner stones to mark the corners between the fаmily plots. Bessie was placed well inside the King plot to its southern end. Next to pass away was John King, who was buried next to Bessie in the far southern end.
The first of the Key family to pass away and be buried in this cemetery was Eloise Key, who died in 1987 and was buried on the far southwest corner of the Key plot, which King believеd to encroach onto his family’s northwest corner. King complained to the association that her grave and the adjoining headstone for her husband N.B. was on the King plot. King said that this was when he noticed the King family plot corner markers had been moved to the south and farther onto the King family plot.
N.B. diеd in 2002 and was buried to the south of Eloise, further encroaching upon the King family plot. These two burial places were along the backside of the family plots, |4near the barbed-wire fencing to the west. King complained again, and cemetery personnel measured the boundary markers, deciding that thе placement was correct as it was. King hired an attorney at that time due to his concerns but nothing came of it.
In March 2006, George Myers died. King became aware that George (married to a member of the Key family) was to be buried in the far southeast of the Key plot in line with N.B., which would completе the east-west line between the family plots. King saw this as essentially taking four plots (Eloise and N.B. in back, George and later his wife in front) that belonged to his family. King complained to the association, which re-measured and decided the boundaries were correct, and he also complained to the grave diggers who worked for Griffin prior to the burial.
King was not seeking to move Eloise and N.B., but he believed that George should be moved because he warned not to bury him there. He also objected to the dual headstone placed for George because it created an intended space next to him for his wife, which would take another of his family’s spaces (in line with Eloise’s grave and along the front of their plots).
King paid a surveyor to prepare a drawing of existing markers and graves. The surveyor found that the Key family plot was approximately 21.3' wide whereas the King family plot was 18.4' wide. This mеant that both families were “shorted” a few feet in width across the front. But each family plot was a bit more than 24' in depth.
Carol Leonard, the current cemetery caretaker, also testified about the size and square footage of the Key and King family plots, noting that although there was a shortagе in | ¿frontage for both families, there was extra room in the area between the back of the plots and the barbed-wire fence to the west that could be utilized. Ray Leonard, Carol’s brother-in-law, was asked by Carol to re-measure the plots to ensure they were correct. Ray testified to his bеlief that the southern corners of the Key plot were correct.
Paul Key testified that he was at the grave site when the plot for George was to be dug in 2006. Paul said King was also present but made no complaint to him except to request that they not get dirt on his wife’s grave, directly to the south of the рlot where George was to be placed.
In March 2010, the trial judge entered an order dismissing King’s complaint. The judge found that (1) the King family staked out their plot first giving King a precedential interest in the grave sites; (2) due to the movement of the corner markers between the Key and King plots, which King noticed in 1987, the King plоt was diminished by a width of two grave sites; (3) King abandoned his lawful claim by sitting on his rights after the 1987 and 2002 burials and not filing suit; and (4) the request to disinter George would be denied. King filed a timely notice of appeal from the March 2010 order.
| fiFirst, King asserts that the trial court erroneously dismissed Griffin Funeral Services from this lawsuit. Griffin contends that King’s notice of appeal is ineffective to appeal the earlier dismissal, but we disagree. King is correct when he states that until the entire case was disposed of, there was no final order to appeal. Ark. R.App. P.-Civ. 2(a)(ll) (2010); Ark. R. Civ. P. 54(b). An appeal from a final order also brings up for review any intermediatе order involving the merits and necessarily affecting the judgment. Ark. R.App. P.-Civ. 2(b) and 3(a). Here, King specifically appealed “the decision entered herein on March 19, 2010[.]” This was the final judgment after the bench trial, long after Griffin was dismissed from the case in April 2009. This is similar to the situation in Aka v. Jefferson Hospital Association,
On the merits of this point, we disagree with King that the trial court erred in dismissing Griffin from the lawsuit.
We are convinced that, while titled a dismissal under Ark. R. Civ. P. 12(b)(6), this was in actuality a summary judgment. In deciding a motion to dismiss under Rule 12(b)(6), the |7trial court is limited to consideration of the pleadings. Bayird v. Floyd,
When considering a summary judgment on appeal, we view the evidence and all inferences in the light most favorable to the nonmovant. Id. The issue is whether any material question of fact remains; its purpose is not to try the issues but to determine whether there are any issues to be tried. Id. We hold that the trial court did not err in granting summary judgment and dismissing Griffin from the lawsuit because, even though Griffin dug and covered this grave, it owed no duty and thus breached none to King. The caretaker’s deposition testimony demonstrated that she was the final authority on where the grave was to be dug, and she believed Griffin did nothing wrong. King’s deposition reflected the same position: “I don’t think they [Griffin Funeral Service] should have done anything different. f8It wasn’t their problem.” There remained no issue of material fact to be decided as to Griffin, and thus summary judgment was appropriate.
The second basis on which King seeks reversal is his allegation that the trial court clearly erred in finding that laches and estoppel prevented him from asking that George be moved and that any encroachment on the adjoining burial рlot be enjoined. In reviewing the findings after a bench trial, we reverse if the findings are clearly erroneous or clearly against the preponderance of the evidence. White v. McGowen,
The doctrine of laches is an equitable principle premised on some detrimental change in position made in reliance upon the action or inaction of another party. Goforth v. Smith,
l9The custom of setting aside individual places for burial may be traced to ancient times, which is a commentary on the special protection that society has deemed appropriate for final resting places. Rial v. Boykin,
This cemetery followed the practice of licensing plot areаs by payment of a fee and by allowing placement of markers at the corners. The trial court recognized this and found that the King plot, set by markers first, was diminished by the movement of the corner markers along the abutting boundary toward the south, losing a width of two burial spaces. King knew about this in 1987. We believe that laches undoubtedly applies to the grave sites of Eloise and N.B. due to the passage of time without more affirmative action than generalized complaints. Even King agrees that he has no legitimately lawful basis to move those remains.
The more troubling question is whether that same principle applies to the front two burial spaces, occupied by George and reserved to the northern side for his wife. We believe that the trial court correctly found that King failed to act on his rights in a timely manner as to these two burial sites. The entire east-west line between the family plots was changed by |inthe moved markers somewhere around 1987. This would include the “front” marker near George. The doctrine of laches depends upon the circumstances of each case and is a question of fact. Cochran v. Bentley,
For the foregoing reasons, we affirm the trial court’s order dismissing King’s complaint after trial against thе cemetery trustees.
Affirmed.
Notes
. John Edd Curry is deceased.
. Prior to the bench trial in January 2010, Paul and Rebecca inexplicably disappear from the caption of any motions and orders. Paul appears as a witness at the bench trial but is not recognized as a party. Victor Harper represented both the cemetery association and Paul and Rebecca as they were added to the case. Harper purportedly represents all their interests on appeal too, according to their appellees’ brief. Because the final order on appeal dismissed appellant's complaint in its entirety, this moots any potential finality issue.