text:
    ARKANSAS PROFESSIONAL BAIL BONDSMAN LICENSING BOARD and Arkansas Professional Bail Bond Co. v. Liz FRAWLEY and Razorback Bail Bonds, Inc.
    02-266
    88 S.W.3d 418
    Supreme Court of Arkansas
    Opinion delivered October 31, 2002

      Mark Pryor, Att’y Gen., by: Kim Evans, Ass’t Att’y Gen., for appellant.

      Wilson & Associates, P.L.L.C., by: Lynne Ravelette and Christopher L. Palmer, for appellees.
   Jim Hannah, Justice.

This case presents an appeal from an interlocutory order of the Pulaski County Circuit Court granting appellees Liz Frawley and Razorback Bail Bonds, Inc. (“Razorback”), injunctive relief enjoining the appellant Arkansas Professional Bailbondsman Licensing Board (“Licensing Board”) from conducting a hearing on August 17, 2001, regarding alleged violations of the Bailbondsman Licensing Law.

The Licensing Board argues that the circuit court was without jurisdiction to enjoin the Licensing Board from proceeding with a statutorily authorized administrative hearing because: (1) the Licensing Board acted within its authority; (2) Frawley and Razorback failed to exhaust their administrative remedies; (3) Amendment 80 of 2001 does not confer the power to enjoin administrative hearings to the circuit court; and (4) the bases for injunction were not established.

We hold that the circuit court was without jurisdiction to enjoin the Licensing Board from conducting the August 17, 2001, hearing. Accordingly, we reverse.

We have jurisdiction of this matter pursuant to Ark. Sup. Ct. R. l-2(b)(6) (2002) and Ark. R. App. P. — Civ. 2(a)(6) (2002).

Facts

The Licensing Board ordered an investigation of Frawley and Razorback, which indicated that Frawley and Razorback may have been in violation of statutes, rules, and regulations governing bailbondsmen. As a result of the investigation, the Licensing Board’s staff set a hearing for August 17, 2001, and sent a Notice of Hearing to Frawley and Razorback. The Licensing Board sent Frawley notice of the hearing by certified mail on August 13, 2001. Frawley testified that she received the mailed notice on August 16, 2001, one day before the scheduled hearing.

Frawley further testified that on August 7, 2001, after hearing rumors from her co-workers that the Licensing Board was investigating her for possible violations, she filed an FOIA request to obtain a copy of the file maintained by the Licensing Board. Additionally, within the FOIA request, Frawley requested a continuance so that she could obtain a copy of the file and prepare properly for the hearing. The request for a continuance was denied. On or about August 9, 2001, Frawley received the Licensing Board’s file. The file included the Notice of Flearing, which listed the alleged violations of Frawley. The notice stated that if the allegations were true, then the Licensing Board would revoke Frawley’s professional bailbondsmen license. The file indicated that nine witnesses would be called in support of the Licensing Board’s allegations, and the file included approximately 150 pages of potential evidence and exhibits to be used against Frawley.

On or about August 13, 2001, Frawley again requested a continuance, alleging that it would be impossible for her to properly prepare the matter for hearing by August 17, 2001. The request for continuance was denied. On August 14, 2001, Frawley requested another continuance, specifically citing trial conflicts and stating that attorneys for Frawley could not be present. The request was denied.

On August 15, 2001, Frawley filed a complaint with the Pulaski County Circuit Court, First Division, requesting that the court issue an injunction to prevent the Licensing Board from proceeding with the August 17, 2001, hearing. The circuit court found that a temporary injunction should be granted until a hearing could be held. The Licensing Board requested a hearing on the matter, and on August 17, the circuit court held a hearing and enjoined the Licensing Board from holding its hearing on August 17, based upon a finding of insufficient notice provided to Frawley. In addition, the court directed the Licensing Board to reissue notice to Frawley concerning the hearing on Frawley’s alleged violations.

Authority of the Licensing Board

Bail bondsmen and bail bond companies are required to conduct their bail bond businesses in conformity with the statutes governing the profession, Ark. Code Ann. § 17-19-101 et seq. (Repl. 2001), and the rules and regulations promulgated pursuant to Ark. Code Ann. § 17-19-106 (Repl. 2001), the Arkansas Professional Bail Bond Company and Professional Bail Bondsman Licensing Act. The Act provides that the Licensing Board has the authority to administer and enforce the provisions of Ark. Code Ann. § 17-19-101 et seq., as well as the rules and regulations promulgated in Ark. Code Ann. § 17-19-106, in order to carry out its duty of licensing and regulating professional bail bondsmen and professional bail bond companies.

Frawley does not dispute that the Licensing Board has the authority to hold disciplinary hearings to determine whether licensees are in violation of Bailbondsman Licensing Law. Rather, Frawley argues that the Licensing Board acted upon unlawful procedure when it failed to give her ten days’ notice of the hearing regarding allegations against her.

Arkansas Code Annotated section 17-19-209(e) (Repl. 2001) states, “Not less than ten (10) days in advance, the board shall give notice of the time and place of the hearing, stating the matters to be considered at the hearing.” Ark. Code Ann. § 17-19-209(e) (Repl. 2001). Frawley argues that our holding in Stueart v. Arkansas State Police Commission, 329 Ark. 46, 945 S.W.2d 377 (1997), stands for the proposition that when an agency such as the Licensing Board fails to follow the rules that govern it, the agency’s action is unlawful.

In Stueart, a police officer was terminated from the Arkansas State Police after he tested positive for marijuana use during a random drug screening pursuant to the Department’s Drug Free Workplace Policy. Stueart, supra. The officer appealed his termination to the Arkansas State Police Commission, which upheld it. Id. The Pulaski County Circuit Court affirmed on appeal. Id. Stueart argued that certain required procedures set forth in the Drug Free Workplace Policy were omitted, prejudicing his substantial rights. Id. We agreed and held that because the Commission ignored its own rules in affirming Stueart’s termination, its decision was based upon unlawful procedure, and accordingly, we found reversible error. Id.

We stated:

[W]e are concerned with whether the Commission’s decision is based upon unlawful procedure. Regional Health Care Facilities, Inc., v. Rose Care, 322 Ark. 767, 912 S.W.2d 409 (1995). We have held that a procedure is “unlawful” when an agency fails to follow that which it has prescribed. Id. . . . The decision of an administrative agency may be reversed “if the substantial rights of the petitioner have been prejudiced because the administrative findings . . . are . . . made upon unlawful procedure.” Rose Care, 332 Ark. at 771, 912 S.W.2d at 411 (quoting Ark. Code Ann. § 25 — 15-212(h) (3)).

Stueart, supra.

Our reversal in Stueart was pursuant to Ark. Code Ann. § 25-15-212(h)(3) (Repl. 2002), and because that statute is inapplicable to the present case, Stueart is not controlling. Ark. Code Ann. § 25-15-212(h)(3) provides that when a court reviews the decision of an agency:

(h) The court may affirm the decision of the agency or remand the case for further proceedings. It may reverse or modify the decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(3) Made upon unlawful procedure . . .”

Ark. Code Ann. § 25-15-212(h)(3) (Repl. 2002).

In Stueart, the petitioner sought judicial review subsequent to an agency hearing. In the present case, Frawley sought judicial review prior to an agency hearing. In the present case, there can be no judicial review pursuant to Ark. Code Ann. § 25-15-212(h)(3) because the circuit court enjoined the Licensing Board from conducting the hearing, thereby preventing the agency from making a decision regarding Frawley’s request for a continuance. The Licensing Board was not without authority to conduct the August 17, 2001, hearing regarding the alleged violations of Frawley.

Failure to Exhaust Administrative Remedies

The Licensing Board contends that the circuit court abused its discretion in granting the injunction to enjoin the Licensing Board from conducting the hearing when Frawley had not exhausted her administrative remedies. The doctrine of exhaustion of administrative remedies provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed statutory administrative remedy has been exhausted. See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41 (1938); Cummings v. Big Mac Mobile Homes, Inc., 335 Ark. 216, 980 S.W.2d 550 (1998); Delta School of Commerce, Inc. v. Harris, 310 Ark. 611, 839 S.W.2d 203 (1992); Dixie Downs, Inc., v. Arkansas Racing Comm’n, 219 Ark. 356, 242 S.W.2d 132 (1951). A basic rule of administrative procedure requires that an agency be given the opportunity to address a question before a complainant resorts to the courts. See Cummings, supra; Hankins v. McElroy, 313 Ark. 394, 855 S.W.2d 310 (1993); Rehab Hosp. Serv. Corp v. Delta-Hills Health Sys. Agency, Inc., 285 Ark. 397, 687 S.W.2d 840 (1985).

The prescribed statutory administrative remedy, Ark. Code Ann. § 25-15-212, provides, in pertinent part:

(a) In cases of adjudication, any person . . . who considers himself or herself injured in his or her person, business, or property by final agency action shall be entitled to judicial review of the action .... Nothing in this section shall be construed to limit other means of review provided by law.
(b) (1) Proceedings for review shall be instituted by filing a petition within thirty (30) days after service upon petitioner of the agency’s final decision in:
(A) The circuit court of any county in which the petitioner resides or does business; or
(B) Pulaski County Circuit Court.

Ark. Code Ann. § 25-15-212 (Repl. 2002).

“Adjudication” is defined as an “agency process for the formulation of an order.” Ark. Code Ann. § 25-15-202(1) (Repl. 2002). “Order” is defined as “the final disposition of any agency in any matter other than rule making, including licensing and rate making, in which the agency is required by law to make its determination after notice and hearing.” Ark. Code Ann. § 25-15-202(5) (Repl. 2002). Where there has been no adjudication before the administrative agency, there has been no “final agency action” to be reviewed pursuant to Ark. Code Ann. § 25-15-212.

The' Licensing Board also argues that Frawley should have appeared at the August 17 administrative hearing to request a continuance. The Licensing Board states:

Appellees were given the opportunity to appear before Appellant on the scheduled date and present her argument that the notice was untimely. At that time, based on such an argument, Appellants could have renewed her request for a continuance directly to Appellant. Appellees were obviously available to do so because they were present at the lower court’s hearing on the injunction at the same date and time as the hearing scheduled before Appellant. However, Appellees chose to completely bypass Appellant and go straight to court.

Generally, courts are without jurisdiction to enjoin agencies from performing the duties delegated to them by proper statute or authority. See Toan v. Falbo, 268 Ark. 337, 595 S.W.2d 936 (1980). In Toan, the court stated:

[W]e have held a court of equity is without jurisdiction to issue an injunction preventing a board or commission from hearing a case where the board or commission has jurisdiction. Eclectic State Medical Board v. Beatty, 203 Ark. 294, 156 S.W.2d 246 (1941). We held that proper procedure was for persons affected to seek court review of the commissioner’s ruling if the person felt the proceeding was arbitrary or otherwise illegal.

Toan, supra.

The Licensing Board had jurisdiction to conduct a hearing regarding Frawley’s alleged violations. We understand that Frawley requested a continuance, on three separate occasions, prior to the August 17 hearing. Each request was denied. However, as the Licensing Board points out, it was the Executive Director, a staff member of the Licensing Board, who denied each request for a continuance. The actions of the Executive Director do not constitute actions of the Licensing Board. Frawley’s request for a continuance was never before the Licensing Board. '

In the present case, the Licensing Board should have been given the opportunity to answer the question of whether Frawley should be granted a continuance. Then, if Frawley felt harmed by the proceeding, the proper procedure was for her to seek judicial review of the Licensing Board’s action. The circuit court abused its discretion when it issued the injunction to enjoin the Licensing Board from conducting its hearing because Frawley failed to exhaust her administrative remedies.

Amendment 80

The circuit court found that, pursuant to Amendment 80, it had the jurisdiction to enjoin the Licensing Board from holding its August 17, 2001, hearing. The Licensing Board contends that Amendment 80 does not confer the power to enjoin administrative hearings to the circuit court. Section 19(B)(1) of Amendment 80 provides:

The Jurisdiction conferred on Circuit Courts established by this Amendment includes all matters previously cognizable by Circuit, Probate and Juvenile Courts including those matters repealed by Section 22 of this Amendment [Ark. Const. Amend. 80, § 22]. The geographic circuits and subject matter divisions of these courts existing at the time this Amendment takes effect shall become circuits and divisions of the Circuit Court as herein established until changed pursuant to this Amendment. Circuit Courts shall assume the jurisdiction of Circuit, Chancery, Probate and Juvenile Courts.

Ark. Const. Amend. 80, § 19(B)(1) (emphasis added).

Prior to the enactment of Amendment 80, only chancery courts had the power to issue injunctive relief; circuit courts were without the power to grant injunctive relief. See Arkansas State Game and Fish Commission v. Sledge, 344 Ark. 505, 42 S.W.3d 427 (2001). The Licensing Board acknowledges that the jurisdiction of chancery courts and circuit courts merged, pursuant to Amendment 80, but it argues that “where neither court before the amendment had the power to enjoin an administrative agency from conducting a hearing, the resulting circuit courts still do not have such power.” The Licensing Board argues that prior to Amendment 80, both circuit courts and chancery courts lacked the power to enjoin boards and commissions from conducting hearings in which the board or commission had statutory jurisdiction.

The Licensing Board is correct. In the present case, a court of equity would have been without jurisdiction to enjoin the Licensing Board from conducting its hearing. Since Amendment 80 states that circuit courts assume the jurisdiction of chancery courts, circuit courts have only the jurisdiction that chancery courts had prior to the Amendment. Thus the trial court erred when it found that it had the jurisdiction to grant injunctive relief in the present case pursuant to Amendment 80.

Bases for Injunction

The Licensing Board argues that the bases for an injunction were not established because there was no threat of irreparable harm to Frawley and because any alleged procedural defect could be addressed once the Licensing Board’s final decision issued. Because the circuit court did not have the authority to enjoin the Licensing Board from conducting its August 17, 2001, hearing, we need not determine whether Frawley was entitled to injunctive relief.

Reversed and dismissed.

Thornton, J., not participating.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Albert BELL v. STATE of Arkansas
    CR 02-1071
    88 S.W.3d 425
    Supreme Court of Arkansas
    Opinion delivered October 31, 2002

      Dana A. Reece, for appellant.
    No Response.
   Per Curiam.

Appellant Albert Bell, by and through his attorney, files a motion for a rule on the clerk. The motion reflects that the judgment was filed on March 6, 2002, and that the notice of appeal was timely filed on April 4, 2002. On June 5, 2002, counsel filed a motion for an extension of time to prepare the record for appeal. No order of extension, however, was ever obtained. The transcript was tendered to this court on October 8, 2002.

Pursuant to Ark. R. App. P. — Civ. 5(a), the record on appeal must be filed with this court’s clerk within ninety days from the filing of the first notice of appeal. The time for filing the record may be extended, provided that an order of extension is issued within the ninety-day period. See Ark. R. App. P. — Civ. 5(b). No such order of extension was entered in the present case.

Appellant’s attorney, Dana Reece, admits responsibility for failing to obtain an order of extension, resulting in the late tendering of the record on appeal. We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Dwills v. State, 347 Ark. 294, 62 S.W.3d 359 (2001) (per curiam); Jones v. State, 338 Ark. 29, 992 S.W.2d 85 (1999) (per curiam); Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986) (per curiam).

The motion for rule on the clerk is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).


text:
    Norman GAINES v. STATE of Arkansas
    CR 02-1080
    88 S.W.3d 424
    Supreme Court of Arkansas
    Opinion delivered October 31, 2002

      Robert L. Depper, Jr., for appellant.
    No response.
   Per Curiam.

Appellant Norman Gaines, by his attorney, Robert L. Depper, Jr., has filed a motion for belated appeal. His attorney admits that the notice of appeal was not filed in a timely manner due to a mistake on his part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion for belated appeal. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion for belated appeal is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    James Kelly HAYNES v. STATE of Arkansas
    CR 02-1087
    88 S.W.3d 426
    Supreme Court of Arkansas
    Opinion delivered October 31, 2002

      R. Paul Hughes, III, for appellant.
    No response.
   Per Curiam.

R. Paul Hughes, III, a State-salaried, full-time public defender in Sebastian County was appointed by the trial court to represent appellant, James Kelley Haynes, an indigent defendant, in this rape and residential burglary case. Haynes was convicted and sentenced to life imprisonment. Mr. Hughes timely filed a notice of appeal from the judgment of conviction and lodged the appellate record with our clerk.

Mr. Hughes now asks this court to relieve him as counsel for Mr. Haynes or in the alternative to grant him additional time in which to file Mr. Haynes’s abstract and brief. Mr. Hughes is a full-time public defender and is provided a State-funded secretary. Pursuant to Act 1370 of 2001, Mr. Hughes cannot receive compensation for appellate work. Accordingly, we grant Mr. Hughes’s motion to be relieved for good cause shown. See Mills v. State, 347 Ark. 911, 68 S.W.3d 294 (2002) (per curiam). Tim Cullen will be substituted as attorney for appellant.

Granted.


text:
    Natasha MALONE v. STATE of Arkansas
    CR 02-1062
    88 S.W.3d 424
    Supreme Court of Arkansas
    Opinion delivered October 31, 2002

      John H. Bell P.A., by: John H. Bell, for appellant.
    No response.
   Per Curiam.

Petitioner, Natasha Malone, by her attorney, John H. Bell, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

A copy of this per curiam will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.


text:
    James E. NEAL v. STATE of Arkansas
    CR 02-1061
    88 S.W.3d 426
    Supreme Court of Arkansas
    Opinion delivered October 31, 2002

      Claudell Woods, for appellant.
    No response.
   Per Curiam.

Appellant James Neal, by and through his attorney, has filed a motion for rule on clerk. His attorney, Claudell Woods, states in the motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Steven SWANIGAN v. STATE of Arkansas
    CR 02-1093
    88 S.W.3d 425
    Supreme Court of Arkansas
    Opinion delivered October 31, 2002
    T. Clay Janske, for appellant.
    No response.
   Per Curiam.

Appellant Steven Swanigan, by and through his attorney, has filed a motion for rule on clerk. His attorney, T. Clay Janske, states in the motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Robert VANDERPOOL v. Jean PACE, Mayor of the City of Mammoth Spring; Jack Haney, Carol Howell, James Mills, and Bruce Green, Aldermen of the City of Mammoth Spring
    02-73
    87 S.W.3d 796
    Supreme Court of Arkansas
    Opinion delivered October 31, 2002

      Larry J. Steele, for appellant.

      J. Denham and William T. Hass, for appellees.
   Per Curiam.

Appellant Robert Vanderpool, former City Marshal of the City of Mammoth Spring, filed a complaint in the Fulton County Circuit Court, asserting that the city owed him overtime pay for the period of July 1, 1995, to June 30, 1998, pursuant to certain provisions of the city’s municipal code. The trial court granted summary judgment to Appellees, city officials of the City of Mammoth Spring, and this appeal followed. We cannot reach the merits of the argument on appeal because the addendum prepared by Appellant does not contain copies of the city’s ordinances that he claims entitle him to relief.

Arkansas Supreme Court Rule 4-2 (b)(3), as amended by In Re: Modification of the Abstracting System, 345 Ark. Appx. 626 (2001) (per curiam), provides in pertinent part:

If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, Addendum, and brief, at his or her own expense, to conform to Rule 4-2(a)(5) and (8). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant’s counsel, as the Court may direct. If after the opportunity to cure the deficiencies, the appellant fails to file a complying abstract, Addendum and brief within the prescribed time, the judgment or decree may be affirmed for noncompliance with the Rule.

This amendment became effective for cases in which the record is lodged in the appellate court on or after September 1, 2001. It is thus applicable to this case, as the record here was lodged with our Clerk on January 23, 2002.

Prior to the amendment of Rule 4-2(b)(3), this court had the discretionary authority to summarily affirm a case “when the abstract was so flagrantly deficient that the court did not have before it all the parts of the record necessary for an understanding of the issues presented.” Baldwin v. Baldwin, 349 Ark. 45, 50, 76 S.W.3d 267, 269 (2002). In amending Rule 4~2(b)(3), this court decreed: “Appeals will no longer be affirmed because of the insufficiency of the abstract without the appellant first having any opportunity to cure the deficiencies.” In Re: Modification of the Abstracting System, 345 Ark. Appx. at 627. Accordingly, because his addendum does not contain copies of the city ordinances that are necessary for an understanding of the merits of the appeal, Appellant has fifteen days from the date of this opinion to file a substituted addendum to conform to Rule 4-2 (a) (8). Thereafter, Appellees will have five days to revise or supplement their brief.


text:
    Harry WARD, Individually and on Behalf of Arkansans to Protect Police, Libraries, Education and Services, Petitioner v. Sharon PRIEST, Secretary of State, Respondent; Kark Kimball, Gerhard Langguth, and Jeff Cantwell, Individually and as Members of the Arkansas Libertarians Eliminating Regressive Taxes (ALERT) d/b/a Committee to Axe the Food Tax, Intervenors

    02-1155
    88 S.W.3d 416
    Supreme Court of Arkansas
    Opinion delivered October 31, 2002

      Friday, Eldredge & Clark, by: Robert S. Shafer, for petitioner.

      Tim Humphries, Gen. Counsel, Sec. of State; and Mark Pryor, Att’y Gen., by: Jeff R. Priebe, Ass’t Att’y Gen., for respondent.

      Williams & Anderson LLP, by: Jess Askew III, Beth M. Deere, and Sarah M. Priebe, for intervenors.
   Per Curiam.

Petitioner Harry Ward, on behalf of himself and others similarly situated, and a ballot-question committee known as Arkansans to Protect Police, Libraries, Education, and Services (referred to collectively as “APPLES”), seeks an expedited review in conjunction with an original action filed by APPLES on October 28, 2002, pursuant to Amendment 7 to the Arkansas Constitution and Act 877 of 1999, codified at Ark. Code Ann. § 7-9-501 et seq. (Repl. 2000). In its petition, APPLES asks this court to enjoin the respondent, Sharon Priest, Secretary of State, from placing a proposed amendment entitled “Amendment Eliminating Taxes on Food and Medicine” on the November 5, 2002 general-election ballot, or alternatively that any votes cast on the proposed amendment not be counted or certified. Karl Kimball, Gerhard Langguth, and Jeff Cantwell, on behalf of themselves and a committee sponsoring the proposed amendment known as Arkansas Libertarians Eliminating Regressive Taxes (ALERT) have intervened in this action. ALERT objects to the request for expedited consideration, and it has filed a motion to dismiss the original action. The petition filed by APPLES contains the same allegations of insufficiency set forth in its original action petition filed in Ward v. Priest, 350 Ark. 345, 86 S.W.3d 884 (2002). The brief tendered by APPLES is substantially similar to the brief it filed in Ward v. Priest, supra. We were presented with this motion for expedited review on October 28, 2002, with responses being filed by ALERT and the respondent on October 30, 2002. APPLES asks us to decide this case prior to the November 5 general election.

This case is like McCuen v. Harris, 318 Ark. 522, 891 S.W.2d 350 (1994), in which we denied a motion for expedited review where the motion and brief were presented to this court just five days prior to the election. We stated that such time limitations would not only be unfair to the appellee, it would also not give this court the time needed for deliberation of the issue or issues to be presented. Id.; see also Stilley v. Young, 342 Ark. 378, 28 S.W.3d 858 (2000); Mertz v. States, 318 Ark. 239, 884 S.W.2d 264 (1994).

The original-action petition filed by APPLES on October 28, 2002, alleges that this court has jurisdiction pursuant to Amendment 7 and Act 877 of 1999 to review the sufficiency of the popular name and ballot title of the proposed constitutional amendment. We take this opportunity to once again note that the purpose of Act 877 is to provide for the timely and expeditious review of the legal sufficiency of initiative petitions by the Supreme Court. Ark. Co.de Ann. § 7-9-501 (Repl. 2000). Furthermore, Act 877 was intended to provide a process to timely review the legal sufficiency of a measure in a manner which avoids voter confusion and frustration which occur when measures are stricken from the ballot on the eve of an election. Ark. Code Ann. § 7-9-502(b) (Repl. 2000).

There are only six days between now and the date of the election. Election-eve review is contrary to Act 877 of 1999, the statute under which APPLES now proceeds. Moreover, to grant review at this late hour would not only be unfair to the adverse parties, but it would not give this court a sufficient amount of time necessary for meaningful deliberation of the issues presented. We, therefore, must deny the motion for expedited review. Accordingly, the motion to dismiss filed by ALERT is moot.

Motion denied.

Thornton, J., not participating.


text:
    Harmon WILLIAMS v. STATE of Arkansas
    CR 02-1075
    88 S.W.3d 427
    Supreme Court of Arkansas
    Opinion delivered October 31, 2002

      David Mark Gunter, for appellant.
    No response.
   Per Curiam.

Harmon Williams through his attorney, David Mark Gunter, moves the court for a rule on clerk so that the transcript in this appeal may be filed. From the record tendered to the Supreme Court Clerk, we learn -that on February 28, 2002, a judgment and commitment order was entered showing Williams had been convicted of possession of a controlled substance with intent to deliver and sentenced to forty years in prison. He filed his notice of appeal on March 21, 2002. On June 19, 2002, the circuit court extended the time for filing the transcript until August 19, 2002. Counsel for Williams states that he received the transcript from the court reporter on October 9, 2002. He tendered that transcript to the Supreme Court Clerk on October 10, 2002. He now moves this court to direct that the transcript be filed.

This court has held that we will grant a motion for rule on clerk when the attorney admits that the record was not timely due to an error on his part. See Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Counsel for Williams, David Mark Gunter, has not made such an admission.

Without admission of fault, we will not issue an order for rule on clerk. See Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986). Therefore, the motion must be denied. For filing to occur, the appellant’s attorney must file within thirty days from the date of this per curiam a motion and affidavit in this case accepting full responsibility for not timely filing the transcript. Upon filing same, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.


author: Tom Glaze, Justice. Ray Thornton, Justice,

text:
    Larry LEE, Sr. and Barbara Fowler, Individually and as Parents and Next Friends of Larry Lee, Jr., and Brandon Fowler, Minors v. Ed DANIEL
    01-676
    91 S.W.3d 464
    Supreme Court of Arkansas
    Opinion delivered November 7, 2002

      Walker & Dunklin, by: Woodson D. Walker; and Gary, Williams, Parenti, Finney, Lewis, McManus, Watson & Sperando, by: Ginger Jenkins and Donald Nathaniel Watson, for appellants.

      McMath, Vehik, Drummond, Harrison & Ledbetter, P.A., by: Paul Harrison and Charles Harrison, for appellee.
   Tom Glaze, Justice.

This appeal was certified to this court by the court of appeals on the grounds that it presents a challenge to the constitutionality of Arkansas’ attorney’s lien statute. Jurisdiction arises under Ark. Sup. Ct. R. 1-2(a)(2).

On June 29, 1995, Barbara Fowler, along with her mother and her two sons, was involved in an automobile collision in Pine Bluff. Fowler’s mother, Linda Young, was driving her car when it was struck by a truck owned by Waste Management of Arkansas. Young was severely injured; Brandon Fowler, the older of the two boys, was not seriously hurt, but the younger boy, eighteen-month-old Larry Lee, Jr., eventually had his right arm amputated as a result. Barbara Fowler was seven months pregnant at the time of the wreck, and had to be medicated to keep from delivering the baby prematurely.

One day after the accident, on June 30, 1995, attorney Ed Daniel met with Fowler in her hospital room. Fowler signed a contract with Daniel, on behalf of herself and her two sons, agreeing to pay him 40% of any recovery or settlement she might receive out of any lawsuit Daniel filed on her behalf. The contract also contained a clause whereby Daniel would be entitled to a lien on any sum recovered by way of settlement or judgment. A few days after signing the contract, Fowler changed her mind about having Daniel represent her, and she terminated his services.

In May or June of 2000, Fowler entered into a tentative setdement with Waste Management, Inc., for the sum of $2,500,000.00. The approval of the probate court was required, because the matter involved the estates of the two minor children. On June 27, 2000, Daniel filed a petition in Jefferson County Probate Court to determine and enforce his attorney’s lien on the settlement amount. In response, Fowler filed a petition in the circuit court, where the personal injury lawsuit had been pending, to determine the validity of the lien. Fowler’s petition requested that the circuit court find that Daniel was terminated for cause, and that he therefore had no enforceable lien on the proceeds of the setdement. Daniel was granted permission to intervene in that action, and filed a complaint seeking recovery of the $1,000,000.00 he claimed he was owed under his contingency fee contract.

Following a bench trial in November of 2000, the circuit court issued an order setting out various findings of fact and concluding that a valid contract existed between Daniel and Fowler for herself and as guardian of her two sons. Further, the court found that there was no justifiable cause for Fowler’s termination of Daniel’s contract. The circuit court concluded that Daniel had a valid attorney’s lien against the proposed settlement.

On appeal, Fowler raises three arguments for reversal. She challenges a number of the trial court’s findings of fact, and she also asserts that the court erred in refusing to allow her to admit certain expert testimony. Finally, she contends that Arkansas’ attorney’s lien statute is unconstitutional.

For her first point on appeal, Fowler argues that thirteen of the trial court’s findings of fact were clearly against the preponderance of the evidence. In a bench trial, this court will not set aside the findings of fact by a circuit judge sitting as a jury unless they are clearly erroneous. Wood v. The Corner Stone Bank, 315 Ark. 200, 866 S.W.2d 385 (1993); Taylor’s Marine, Inc. v. Waco Mfg., 302 Ark. 521, 792 S.W.2d 286 (1990). See also Ark. R. Civ. P. 52. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Forrest Const. v. Milam, 345 Ark. 1, 43 S. W.3d 140 (2001). This court gives due deference to the superior position of the trial judge to determine the credibility of the witnesses and the weight to be accorded their testimony. Pyle v. Sayers, 344 Ark. 354, 39 S.W.3d 774 (2001). Further, it is within the province of the trier of fact to resolve conflicting testimony. Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999).

Fowler’s first challenge is to the trial court’s finding of fact #4, wherein the court stated that “Larry Lee, Jr. was severely injured, Barbara and Brandon Fowler less serious.” Fowler contends that the trial court failed to “take proper account” of the emotional trauma she suffered. However, the facts clearly supported the trial court’s findings: Larry Lee, Jr., had his arm amputated following the accident. Indeed, Fowler’s brief concedes that she and Brandon Fowler “did not sustain injuries as severe as those sustained by Larry Lee, Jr.” The circuit judge’s finding of fact was not clearly erroneous.

The remainder of the factual findings that Fowler challenges can be grouped into three general categories: findings of fact that pertain to how Fowler had her initial contact with attorney Ed Daniel; findings relating to Fowler’s mental status at the time she signed the contract with Daniel; and findings concerning Fowler’s communications with Daniel, including her termination of his services.

The first of these categories — how Fowler initially contacted Daniel — includes five specific findings of fact by the trial court:

#5: On June 30, 1995, a friend of the family, Laverne Hill, discussed with Barbara Fowler and family members Fowler’s need for an attorney, and recommended one to Fowler.
#6: Barbara Fowler requested Laverne Hill to get the attorney to call Barbara Fowler.
#8: Laverne Hill was instructed by both Barbara Fowler and David Lisenby [Fowler’s uncle] to have attorney Ed Daniel to call Barbara Fowler.
#11: Ed Daniel called Barbara Fowler and was instructed to call her uncle David Lisenby.
#13: On June 30, 1995, David Lisenby called Ed Daniel and asked him to come down and discuss the matter with them, as requested or agreed to by Barbara Fowler.

Although Fowler asks this court to conclude that these findings of fact were clearly against the preponderance of the evidence, in her brief she states only that these findings were contradicted by her own testimony. Such argument wholly ignores the fact that other witnesses, including a number of Fowler’s family members and family friend Laverne Hill, testified that Hill suggested that Fowler contact Daniel, and that Fowler then asked Hill to have Daniel call Fowler. The resolution of any conflict in the testimony was for the trial court, and on appeal, we will not overturn such a finding based on a credibility determination. See Skokos v. Skokos, 344 Ark. 420, 40 S.W.3d 768 (2001).

The next general category of factual findings with which Fowler takes issue concerns the trial court’s conclusion that Fowler was not so impaired by medications and emotional trauma that she was incapable of executing a valid contract. These three findings are as follows:

#9: Barbara Fowler appeared to be normal, not acting under the influence of any medication, disillusion [s/c] from the accident, depression from her injuries [or] her children’s injuries, nor the very serious injuries her mother received in the same accident on June 29, 1995.
#17: The attending family members did not discern any debilitating effects of the accident, medication, or the medical status of Barbara Fowler or any other family members injured in the accident, during the said discussions [with attorney Daniel].
#18: Barbara Fowler did not appear to be impaired in any way to those [who] attended the meeting, nor was Barbara Fowler pressured or coerced in any way.

Here, Fowler asserts that she offered “uncontroverted testimony” that she had received a battery of medications, both for pain and to prevent a miscarriage, and that she was suffering a great deal of emotional trauma from the circumstances. She notes that her son had to have his arm amputated, and that her mother was in critical condition in the Intensive Care Unit. Further, she points to testimony from her brother, Brad Young, that she appeared “drugged up” and “emotionally unstable,” in support of her contention that she lacked the capacity to enter into a valid contract.

Again, however, Fowler fails to acknowledge that there was a surfeit of other testimony from other witnesses that contradicted her own account. For example, Laverne Hill testified that she visited with Fowler, and although Fowler seemed emotional, she appeared to be of a clear mind. Fowler’s uncle, David Lisenby, testified that Fowler seemed to be alert and aware of everything that was going on around her. Emily Lisenby, David’s wife, testified that Fowler “knew what was going on very well.” Further, although Fowler attempts to rely on her brother’s testimony that she “didn’t look like she was in it,” Brad Young conceded on cross-examination that he had testified at his deposition that he had lied before, that he sometimes had trouble keeping his lies straight, and that Fowler had promised him that, when she got her money out of the settlement, she would give him some. Young was also confronted with his deposition testimony, taken some four weeks prior to trial, wherein he testified that Fowler understood what was going on when she signed the contract.

In addition, testimony offered at trial clearly supported the court’s finding that Fowler was not coerced or pressured into signing the contract with Daniel. David Lisenby discussed the facts surrounding the family’s first contact with Ed Daniel, stating that when he first spoke to Daniel, Lisenby said the family needed to talk about how they wanted to proceed. After a discussion that included David and Emily Lisenby, Lisenby’s sister Annette Irvin, Brad Young, and Fowler, the five of them agreed to call Daniel to come to the hospital to confer with them. Fowler agreed that Lisenby should call Daniel. When Daniel arrived at the hospital in Pine Bluff, he and the above-named family members sat down at a conference table in the ICU waiting room and talked about the accident. At the time, Lisenby said he felt that Fowler understood the purpose of the meeting. The family discussed what had happened during the accident, as well as the fact that Linda Young was still in ICU, and that Larry Lee, Jr.’s arm had to be amputated. Lisenby stated that Daniel was very cooperative in answering the questions from the family, including Fowler’s questions, and that everyone was satisfied with the answers Daniel gave. Daniel spoke with the family for at least an hour and a half.

Before Fowler signed the contract with Daniel, the family spoke together outside of Daniel’s presence. Lisenby and other family members asked Fowler several times if she wanted Daniel to represent her; she repeatedly said that she had not hired anyone else, and wanted to use Daniel. At that point, the family called Daniel back into the conference room, and Daniel went over the contract with Fowler. David Lisenby testified that Fowler appeared to understand everything that went on, and he also stated that he did not see any duress, coercion, or intimidation exhibited by Daniel at all. The trial judge found the family members’ testimony to be more credible than that of Fowler, and again, we will not reverse such a determination on appeal.

Finally, Fowler challenges four findings of fact that discuss the manner in which Fowler terminated Daniel’s representation. These findings are as follows:

#29: Ed Daniel had contact with Barbara Fowler by phone [on] Sunday, July 2, 1995, and Barbara did not advise him that [she] was having any misgiving, second thoughts about signing with Daniel, or that he had been treating [her] in a substandard or disrespectful manner.
#30: On July 5, 1995, Ed Daniel visited Barbara Fowler at [Jefferson Regional Medical Center], and Fowler expressed no complaints about Daniel’s services or treatment of Fowler.
#34: Fowler did not tell Daniel at the time of termination, nor at anytime subsequent thereto, that Daniel had failed to do anything that he should have done, or that Daniel had done anything improper, offensive, unethical, or anything else that resulted in Fowler’s decision to terminate Daniel.
#35: The letter written by Barbara Fowler and Larry Lee, Sr., to Ed Daniel and received on or about July 10, 1995, advising that they did not want Ed Daniel to represent them or the minors, does not set out a reason for discontinuing Ed Daniel’s service, other than they preferred the services of another attorney, and because Daniel’s fee was 40% of the amount recovered.

• Fowler concedes in her brief that the finding numbered 29 is true; therefore, by her own admission, this finding of fact cannot be clearly erroneous. With respect to the remaining three findings, Fowler asserts that they “reflect the trial court’s belief that Fowler did not have cause to terminate Daniel because she did not tell him prior to his termination that he had done anything wrong.” Fowler maintains that she had no duty to give Daniel advance notice that she was going to terminate him, and she repeats her contention that Daniel lied to her and coerced her into hiring him.

However, as discussed above, there was ample evidence from which the trial court could conclude that Fowler entered into a valid contract with Daniel and did not have cause to terminate him. As we defer to the trial court’s resolution of conflicting testimony, we will not reverse the court’s findings of fact on any issue raised by Fowler.

In her second point on appeal, Fowler asserts that the trial court abused its discretion in excluding the expert testimony of Fowler’s witness, Sula Stanfield. A trial court’s ruling on the admissibility of expert testimony will not be reversed absent an abuse of discretion. See Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000). Stanfield was a licensed registered nurse, and Fowler sought to have her testify about the effects of the various medications Fowler took while in the hospital. However, upon voir dire by Daniel, Stanfield conceded that she could not authenticate Fowler’s medical records. Daniel objected to both Stanfield’s testimony and her use of the medical records. The trial court agreed and directed Stanfield to step down, which she did.

We do not reach Fowler’s argument that Stanfield should have been permitted to testify, because Fowler failed to proffer Stanfield’s testimony. Rule 103 of the Arkansas Rules of Evidence provides that “[e]rror may not be predicated upon a ruling which . . . excludes evidence unless a substantial right of a party of affected, and . . . the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.” Ark. R. Evid. 103(a)(2). Fowler never proffered the substance of Stanfield’s testimony or her opinions as to what possible effects the medication might have had on Fowler’s state of mind.

This court has repeatedly stated that failure to make an offer of proof precludes review of the issue on appeal. See Duque v. Oshman’s Sporting Goods—Services, Inc., 327 Ark. 224, 937 S.W.2d 179 (1997) (failure to proffer evidence so that we can see if prejudice results from its exclusion precludes review of the evidence on appeal); Carr v. General Motors Corp., 322 Ark. 664, 911 S.W.2d 575 (1995) (appellant’s failure to proffer the excluded evidence, including the substance of the witness’s testimony, precludes this court’s reaching the merits of her argument); National Bank of Commerce v. HCA Health Services of Midwest, Inc., 304 Ark. 55, 800 S.W.2d 694 (1990) (Ark. R. Evid. 103(a)(2) requires an offer of proof before alleged error in excluding evidence may be considered on appeal).

Fowler’s final point on appeal is that Arkansas’ attorney’s lien statute, Ark. Code Ann. § 16-22-301 et seq., (Repl. 1999) is unconstitutional as a violation of the separation-of-powers doctrine. Particularly, she contends that the statute is an unlawful intrusion into this court’s powers to regulate the practice of attorneys at law. However, we decline to reach this issue, because Fowler failed to preserve it for appellate review.

The trial court’s order on Fowler’s “Petition to Determine Attorney’s Lien” was filed on January 5, 2001. A second order, denying various motions that had been filed by the parties, was entered on January 10, 2001. Fowler did not raise an issue regarding the constitutionality of this statute until her motion for new trial, filed on January 22, 2001. The trial court never ruled on the motion for new trial, and it was therefore deemed denied on February 21, thirty days from the filing of the motion. See Ark. R. Civ. P. 59(b).

First, we point out that, when a motion for new trial has been deemed denied in accordance with Ark. R. App. P. — Civ. 4(b)(1), the only appealable matter is the original judgment or order. See Monk v. Farmers Ins. Co. 290 Ark. 38, 716 S.W.2d 201 (1986). This court has also repeatedly held that an objection first made in a motion for new trial is not timely. For example, in Warnock v. Warnock, 336 Ark. 506, 988 S.W.2d 7 (1999), this court declined to reach an equal protection argument, holding that it would not address a constitutional issue if it was not brought to the trial court’s attention for a ruling during trial or at some point prior to the entry of final judgment. In Selph v. State, 264 Ark. 197, 570 S.W.2d 256 (1978), this court noted that the reason for requiring an objection before the trial court is to discourage “sandbagging” on the part of lawyers who might otherwise take a chance on a favorable result, and subsequently raise a constitutional claim if the gamble did not pay off. Selph, 264 Ark. at 204. See also Wilson v. Wilson, 270 Ark. 485, 606 S.W.2d 56 (1980); Hodges v. State, 27 Ark. App. 154, 767 S.W.2d 541 (1989) (allowing a party to raise an objection for the first time in a motion for new trial would give them “license to lie behind the log,” waiting to see if they obtain an adverse verdict before complaining about any alleged irregularities). Because Fowler failed to raise her constitutional claim until her motion for new trial, the question is not preserved for our review.

For the reasons set forth above, we affirm.

Corbin and Thornton, JJ., concur.

Arnold, C.J., not participating.

Ray Thornton, Justice,

concurring. The initial constice, Fowler and Ed Daniel occurred the day following a motor-vehicle accident in Pine Bluff when Daniel, an attorney with offices in Little Rock, called Fowler at the request of a non-family member and testified that he was told by Fowler to discuss the matter with her uncle, David Lisenby. It is not controverted that Fowler did not personally request that Daniel come and see her during their telephone conversation. Nonetheless, Daniel arrived at the hospital in Pine Bluff that evening, sought an audience with Fowler who was either in her hospital bed, or in a wheelchair, receiving medication from an IV tube in her arm to limit pain and to halt untimely labor in order to prevent the premature birth of a child. Daniel sought and obtained her signature on a conditional fee contract for herself, as well as another conditional fee contract for recovery of damages for her child, Larry Lee Jr., who was at that moment recovering from an operation amputating his right arm as a result of the collision. A third contract was signed for her other less severely injured child. Larry Lee Jr.’s father, Larry Lee Sr., did not participate in the execution of this conditional fee contract on behalf of his minor child.

It is not controverted that Daniel was terminated as an attorney within a week. It is not disputed that Daniel’s efforts on behalf of Fowler consisted of not more than a few hours of work, including the mailing of a notice of his attorney’s lien to Waste Management of Arkansas on the Saturday following the Friday night signatures on the conditional fee contracts. Now Daniel asserts a lien in the amount of one million dollars as an attorney’s fee based upon virtually no performance of services.

As expressed by counsel for appellants in oral argument, “this case, in the final analysis, presents the unique and troubling question of whether this state’s attorney’s lien statute [Ark. Code Ann. § 16-22-301 etseq. (Repl. 1999)] permits an attorney to recover a fee of one million after having rendered virtually no services to the clients.”

The attorney’s Hen statute was passed in response to our decision in Henry, Walden & Davis v. Goodman, 294 Ark. 25, 741 S.W.2d 233 (1987) (limiting recovery on a terminated conditional fee contract to quantum merit). The General Assembly stated that the court’s interpretation of the law “is contrary to what was intended by the enactment of. . . the Attorney Lien Law.” Act 293 of 1989. The statute further provides, “Therefore it is the intent of [this section] to allow an attorney to obtain a lien for services based upon his or her agreement with his or her client and to provide compensation in case of a settlement cfr compromise without the consent of the attorney.” Ark. Code Ann. § 16-22-301.

As stated by the majority opinion, this court accepted review to consider whether this legislative enactment seeking to overturn our decision in Goodman, supra violated the principles of separation of powers. I concur with the majority that the issue of the constitutionality of the statute is not before us because Fowler did not preserve it for appellate review. This issue, like that of the reasonableness of the proposed fee, is simply not addressed by our decision in the case before us. In my opinion, it is clear that these issues may be raised in any subsequent or continuing action seeking to enforce a one million dollar conditional fee proposed to be charged for work not performed.

As the issue of the interpretation and constitutionality of Ark. Code Ann. § 16-22-301 et seq. is not before us for review, the trial court’s ruling that there was no good cause for termination of the contract is irrelevant to the disposition of the matters under consideration, and that issue should be deferred pending further development. During oral argument, counsel for appellee expressed his views on whether a one million dollar attorney’s fee would be ordered on remand.

A member of the court asked, “Are you saying that Mr. Daniel is entitled to forty percent of the contract?” Counsel for Mr. Daniel candidly responded:

In this particular case, no your honor, we are not. I don’t think anyone would come before this court and suggest that the probate judge is going to award 40% of the settlement proceeds to Mr. Daniel and 33 1/3% and a rather large cost bill to the other [attorneys], as well. That would be in excess of $1.8 million out of a $2.5 million setdement. Practically speaking, I don’t see any probability that the probate judge is going to satisfy both of these contracts in their entirety.

I note that the majority, by an appropriate footnote, has indicated that the reasonableness of the amount of Daniel’s fee remains to be determined by the probate court upon our remand for further consideration.

In summary, I concur that we should not reverse as clearly erroneous the trial court’s findings that a conditional fee contract was executed, that a lien was perfected, and that Daniels was subsequently fired. I only wish to emphasize that today’s opinion does not establish the reasonableness of a one million dollar fee, or resolve the issue whether this court has authority under principles of separation of powers to exercise our constitutional authority to regulate the practice of law, including the determination of the reasonableness of fees.

Corbin, J., joins.

       In this appeal, the court is concerned only with the validity of the contract and the lien to which it gave rise. The issue of the reasonableness of the amount of Daniel’s fee has yet to be determined by the probate court, and we do not address that question here.

       Although the named appellants in this case are Larry Lee, Sr., Larry Lee, Jr., and Brandon Fowler, it was Barbara Fowler who signed the contract with Ed Daniel that gave rise to this appeal. For simplicity in writing, we refer to Barbara Fowler as the appellant in this case.


author: Donald L. Corbin, Justice.

text:
    John DODGE, Jim Bolt, Dr. Tim Brooker, Francis J. Hart, Duane Neal, Ret Miles, Gary W. France, Jerry C. Beaver, Jimmy Charles Bilby III, Joe Savage, and Leo Lynch, v. Andy LEE and Nelson Erdmann
    02-521
    88 S.W.3d 843
    Supreme Court of Arkansas
    Opinion delivered November 7, 2002

      Clark & Spence, by: George R. Spence; and John Dodge, for appellants.

      Jim Rose, III, for appellees.
   Donald L. Corbin, Justice.

This appeal was certified to us from the Arkansas Court of Appeals as presenting issues of statutory interpretation. Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. 1-2(b)(6). This case arose from a defamation and libel suit filed in the Benton County Circuit Court by Appellees Andy Lee and Nelson Erdmann. The complaint was filed on November 21, 2000, and named as defendants John Dodge, Jim Bolt, Dr. Tim Brooker, Francis J. Flart, Dianne Saladino, Sam Yates, Duane Neal, Ret Miles, James Deichman, Royce Nease, Gary W. France, Jerry C. Beaver, Jimmy Charles Bilby III, Ron Osbourn, Joe Savage, Leo Lynch, and KOFC Radio. The complaint alleged that Appellants Dodge, Bolt, and Brooker had engaged in a concentrated effort to defame Appellees’ character and professional standing, by repeated publications of slander and libel with no basis in fact. As for Appellants Neal, Miles, France, Hart, Beaver, Bilby, Savage, and Lynch, the complaint alleged that they had signed a petition requesting impanelment of a grand jury and appointment of a special prosecutor to investigate allegations that Appellees misappropriated public property. The complaint charged that these Appellants knew or should have known that the statements that they made by signing the petition were totally unfounded and untrue.

Many of the defendants, including Appellants Dodge, Bolt, Brooker, and Hart, filed counterclaims, alleging that Appellees’ suit was frivolous and constituted malicious prosecution. The suit was eventually dismissed pursuant to Appellees’ motion for voluntary nonsuit. The order of nonsuit was entered on August 31, 2001.

The case now before us on appeal is actually three separate appeals from three separate orders of the trial court. First, Appellants Dodge, Bolt, Brooker, and Hart appeal the October 29, 2001, order striking their counterclaims. Second, Appellants Neal, Miles, France, Beaver, Bilby, Savage, and Lynch appeal the October 31, 2001, order denying their motion for attorney’s fees pursuant to Ark. Code Ann. § 16-22-309 (Repl. 1999). Third, Appellees Lee and Erdmann appeal the October 31, 2001, order granting a default judgment to Dianne Saladino and the December 3, 2001, order denying their motion to set aside the default judgment. As explained below, each of these three appeals contains procedural problems that prohibit us from reaching the merits at this time.

Appeal from Order Striking Counterclaims

Appellants Dodge, Bolt, Brooker, and Hart appeal the trial court’s order striking their counterclaims. We note at the outset that such an order is immediately appealable under Ark. R. App. P. — Civ. 2(a)(4), which provides for appeals from “[a]n order which strikes out an answer, or any part of an answer, or any pleading in an action.” See also Allen v. Greenland, 347 Ark. 465, 65 S.W.3d 424 (2002). However, we cannot reach the merits of the arguments on appeal because the addendum prepared by Appellants does not contain copies of (1) the notice of appeal; (2) Appellants’ response to Appellees’ motion to strike the counterclaims; (3) Appellants Brooker’s and Hart’s joint motion to reconsider the trial court’s order striking the counterclaims; and (4) counterclaims filed on behalf of Appellant Hart.

Under Ark. Sup. Ct. R. 4-2(a)(8), the addendum shall include, among other things, photocopies of any “relevant pleadings, documents, or exhibits essential to an understanding of the case and the Court’s jurisdiction on appeal.” (Emphasis added.) See also Ballard v. Garrett, 349 Ark. 29, 75 S.W.3d 688 (2002) (per curiam). Arkansas Supreme Court Rule 4-2(b)(3), as amended by In Re: Modification of the Abstracting System, 345 Ark. Appx. 626 (2001) (per curiam), provides in pertinent part:

If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, Addendum, and brief, at his or her own expense, to conform to Rule 4-2(a)(5) and (8). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant’s counsel, as the Court may direct. If after the opportunity to cure the deficiencies, the appellant fails to file a complying abstract, Addendum, and brief within the prescribed time, the judgment or decree may be affirmed for noncompliance with the Rule.

This amendment became effective for cases in which the record is lodged in the appellate court on or after September 1, 2001. It is thus applicable to this case, as the record here was lodged with our Clerk on May 23, 2002.

Prior to the amendment of Rule 4-2 (b)(3), this court had the discretionary authority to summarily affirm a case “when the abstract was so flagrantly deficient that the court did not have before it all the parts of the record necessary for an understanding of the issues presented.” Baldwin v. Baldwin, 349 Ark. 45, 50, 76 S.W.3d 267, 269 (2002). In amending Rule 4-2(b)(3), this court decreed: “Appeals will no longer be affirmed because of the insufficiency of the abstract without the appellant first having any opportunity to cure the deficiencies.” In Re: Modification of the Abstracting System, 345 Ark. Appx. at 627.

Accordingly, because their addendum does not contain the foregoing pleadings essential to an understanding of the merits of the appeal, Appellants have fifteen days from the date of this opinion to file a substituted addendum to conform to Rule 4-2(a)(8). Thereafter, Appellees will have five days to revise or supplement their brief.

Appeal from Order Denying Attorney’s Fees

Appellants Neal, Miles, France, Beaver, Bilby, Savage, and Lynch argue that the trial court erred in denying their motion for attorney’s fees under section 16-22-309. We cannot reach the merits of this argument, however, as the order appealed from is not a final order under Ark. R. Civ. P. 54(b). Rule 54(b) provides in pertinent part:

(1) Certification of Final Judgment. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination, supported by specific factual findings, that there is no just reason for delay and upon an express direction for the entry of judgment.....
(2) Lack of Certification. Absent the executed certificate required by paragraph (1) of this subdivision, any judgment, order, or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the judgment, order, or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all of the parties.

Under Rule 54(b), an order that fails to adjudicate all of the claims as to all of the parties, whether presented as claims, counterclaims, cross-claims, or third-party claims, is not final for purposes of appeal. City of Corning v. Cochran, 350 Ark. 12, 84 S.W.3d 439 (2002); Office of Child Support Enforcem’t v. Willis, 341 Ark. 378, 17 S.W.3d 85 (2000). Although Rule 54(b) provides a method by which the trial court may direct entry of final judgment as to fewer than all of the claims or parties, where there is no attempt to comply with Rule 54(b), the order is not final and we must dismiss the appeal. Id. The fundamental policy behind Rule 54(b) is to avoid piecemeal appeals. City of Corning, 350 Ark. 12, 84 S.W.3d 439. The failure to comply with the provisions of Rule 54(b) affects the subject-matter jurisdiction of this court. Id. Thus, this court is obligated to raise the issue on its own. Id.

In the present case, a hearing was held on August 31, 2001, during which several motions were heard from each of the parties, including Appellants’ motion for attorney’s fees. The trial judge indicated from the bench that he would take the issue of attorney’s fees under advisement and allow the parties to fully brief the issue. An order reflecting the bench ruling was entered on October 29. An order denying the motion for attorney’s fees was entered on October 31. Appellants filed their notice of appeal from that order on November 29. The October 31 order is not final, however, because it did not resolve the outstanding counterclaim filed by KOFC Radio.

The record reflects that during the August 31 hearing, while counsel for these Appellants were present, the trial court inquired as to the status of the outstanding counterclaim filed by KOFC Radio against Appellees. After hearing from counsel that the matter had not yet been resolved, the trial court gave the parties thirty days to try and settle the counterclaim. If no settlement could be obtained in that time, the trial court ruled that the counterclaim would be set for trial. For whatever reason, this bench ruling was not included in the written order entered on October 29. More importantly for this appeal, the counterclaim was not resolved by the order entered on October 31, from which Appellants have appealed. Thus, under Rule 54(b) and this court’s cases, the order appealed from is not a final, appealable order, and the appqpl must be dismissed. This court has repeatedly held that where the order appealed from does not dispose of a counterclaim, the order is not final under Rule 54(b), and the appeal must be dismissed. See, e.g., City of Corning, 350 Ark. 12, 84 S.W.3d 439; Maroney v. City of Malvern, 317 Ark. 177, 876 S.W.2d 585 (1994); Williamson v. Misemer, 316 Ark. 192, 871 S.W.2d 396 (1994).

It is of no consequence to Appellants that the matter of attorney’s fees is ordinarily viewed by this court as a collateral issue, separate from the merits of a case. This court’s jurisdiction is not invoked until a final order has been entered in the trial court, with the exception of those immediately appealable orders listed in Ark. R. App. P. — Civ. 2. Thus, a final order is a prerequisite. Without such a final order, no appeal may be entertained, even on a collateral issue such as attorney’s fees. Accordingly, because Appellants appealed from the order denying attorney’s fees prior to the entry of a final judgment under Rule 54(b), their appeal must be dismissed for lack of jurisdiction.

Appeal from Default fudgment

Appellees Lee and Erdmann seek to appeal the trial court’s order granting default judgment to one of the defendants, Dianne Saladino, and the trial court’s order denying Appellees’ motion to set aside the default judgment. The record reflects that the order granting the default judgment was entered on October 31, 2001, and the order denying the motion to set aside the default judgment was entered on December 3, 2001. We must dismiss this appeal because neither Appellees’ addendum nor the record itself contains a notice of appeal from these default orders. Without a timely notice of appeal, this court does not obtain jurisdiction. It is well settled that the timely filing of a notice of appeal is essential to this court’s jurisdiction. See Larscheid v. Arkansas Dep’t of Human Servs., 343 Ark. 580, 36 S.W.3d 308 (2001); Harold Ives Trucking Co. v. Pro Transp., Inc., 341 Ark. 735, 19 S.W.3d 600 (2000); Jones v. Abraham, 341 Ark. 66, 15 S.W.3d 310 (2000).

In sum, the appeal of Dodge, Bolt, Brooker, and Hart is hereby postponed and the brief returned for compliance with Ark. Sup. Ct. R. 4-2. The appeal brought by Neal, Miles, France, Beaver, Bilby, Savage, and Lynch is dismissed for lack of a final order, pursuant to Ark. R. Civ. P. 54(b). Finally, the appeal of Lee and Erdmann is dismissed for lack of a notice of appeal.

Arnold, C.J., not participating.

       Saladino, Yates, Nease, Deichman, Osbourn, and KOFC Radio are not parties to this appeal.

       The record reflects that KOFC’s counterclaim was dismissed with prejudice in an order entered on December 3, 2001, four days after Appellants’ notice of appeal was filed. The record does not reflect that an amended notice of appeal was filed following entry of that December 3 order.