author: Donald L. Corbin, Justice.

text:
    SOUTHEAST FOODS, INC., d/b/a County Market v. Lucy KEENER
    98-417
    979 S.W.2d 885
    Supreme Court of Arkansas
    Opinion delivered November 19, 1998
    [Petition for rehearing denied December 17, 1998.]

      Huckabay, Munson, Rowlett & Tilley, P.A., by: Beverly A. Rowlett, for appellant.

      Miller, James, Miller, Wyly & Hornsby, L.L.P., by: Troy Hornsby, for appellee.
   Donald L. Corbin, Justice.

This case involves a default judgment in a negligence action. Appellant Texarkana Foods, Ltd., appeals the order of the Miller County Circuit Court refusing to set aside the default judgment in favor of Appellee Lucy Keener for injuries she sustained when she slipped and fell in the County Market grocery store in Texarkana. Appellant argues on appeal that the trial court erred (1) in refusing to set aside the default judgment for insufficient service of process, (2) in awarding attorney’s fees to Appellee, and (3) in awarding judgment for an amount greater than that requested in the complaint. This case was certified to us from the Arkansas Court of Appeals; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1 — 2(d). The issue on appeal concerns the identity and service of the proper defendant. We reverse because service was insufficient pursuant to ARCP Rule 4.

On May 1, 1996, Appellee filed her negligence complaint against “South East Foods, Inc. D/B/A County Market,” in which she alleged that the defendant was a corporation registered under the laws of the State of Arkansas, with its registered agent for service being Gordon McNulty, 1200 West Park Drive, Building 2, Suite 300, Litde Rock, Arkansas 72204. On January 16, 1997, Appellee’s attorney filed an affidavit setting out the following steps that he had taken in attempting to serve notice of process on the defendant. The affidavit reflects in pertinent part:

[Tjhat the Affiant received for service of process a Summons, together with a file-marked copy of the Plaintiff s Original Complaint attached thereto, directed to the registered agent for service of the Defendant, Southeast Foods, Inc., d/b/a County Market, in Cause No. CIV-96-90-4 in the Circuit Court of Miller County, Arkansas; that the Affiant attempted service by certified mail, return receipt requested, but the item of mail was returned by the post office as undeliverable; that on September 18, 1996, the Affiant forwarded the returned item of mail by certified mail, return receipt requested, to the Arkansas Secretary of State, requesting that office to accept service on the Defendant’s behalf, a copy of which is attached hereto as Exhibit “A”; that on September 18, 1996, the Affiant also sent a copy of the Summons and the Plaintiffs Original Complaint to PHYLLIS BURGESS, Claims Representative for LINDSEY MORDEN CLAIMS MANAGEMENT, INC., the insurance company for the Defendant, a copy of which is attached hereto as Exhibit “B”; that on October 10, 1996, the Arkansas Secretary of State attempted service by certified mail, return receipt requested, but the item of mail was returned by the post office as undeliverable; that the Arkansas Secretary of State forwarded to the Affiant the returned item of mail, a copy of which is attached hereto as Exhibit “C”; that the Plaintiff has made diligent inquiry and it is Plaintiffs information and belief that the Defendant is a foreign corporation, having no agent in this state.

Exhibit “A” reflects that the Secretary of State’s office received the certified mailing from Appellee on October 4, 1996, signed by Jana S. Milliken. Exhibit “B” reflects that the certified mailing sent to Lindsey Morden Claims Management was received on October 7, 1996, signed by Pat Whitmire.

A hearing was held on February 12, 1997, during which the trial court admitted into evidence the foregoing affidavit and attached documents and heard brief testimony from Appellee concerning the extent of her injuries. The named defendant did not appear or otherwise answer the complaint. The trial court then entered default judgment in favor of Appellee in the amount of $115,800.10, plus interest, and costs.

On July 28, 1997, Appellant filed a motion to set aside the default judgment, and later an amended motion, asserting that it, Texarkana Foods, Ltd., a Mississippi limited partnership, is the legal owner of the County Market grocery store in Texarkana. Appellant asserted that the default judgment is void because it was rendered based on an improper naming of the actual defendant and because service of process was never perfected on either the named defendant, Southeast Foods, or the intended defendant, Texarkana Foods. Appellant asserted that it was Appellee’s burden to show that service was proper and done in strict compliance with Rule 4 and the relevant statutes providing for service of process on corporations.

On January 16, 1998, the trial court denied the motion to set aside the default judgment, finding that Southeast Foods, Inc., d/b/a County Market was the properly named defendant and that service was proper. Additionally, the trial court awarded Appellee attorney’s fees of $11,662.50 and costs of $30.00 incurred in defense of the default judgment. Appellant contends on appeal that the default judgment is void for want of proper service under Rule 4. We agree.

Rule 55 of the Arkansas Rules of Civil Procedure provides for entry of a default judgment when a party fails to appear or otherwise defend. Meeks v. Stevens, 301 Ark. 464, 785 S.W.2d 18 (1990). Because Rule 55(a) provides that the court “may” grant a default-judgment motion in the event of failure to answer or otherwise defend, we apply an “abuse of discretion” standard in reviewing the granting of a default judgment. Layman v. Bone, 333 Ark. 121, 967 S.W.2d 561 (1998). Default judgments are not favorites of the law and should be avoided when possible. B & F Engineering, Inc. v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992). Rule 55, as revised in 1990, reflects a preference for deciding cases on the merits rather than on technicalities. Id. Because of its harsh and drastic nature, which can result in the deprivation of substantial rights, a default judgment should only be granted when strictly authorized and when the party affected should clearly know he is subject to default if he does not act in a required manner. Meeks, 301 Ark. 464, 785 S.W.2d 18. Rule 55(c) provides that the court may, upon motion, set aside a default judgment if the judgment is void. Where the judgment is void, proof of a meritorious defense to the cause of action is unnecessary. Wilburn v. Keenan Cos., Inc., 298 Ark. 461, 768 S.W.2d 531 (1989).

Appellant argues that the trial court erred in refusing to set aside the default judgment because service of process was insufficient both as to the named defendant, Southeast Foods, and the intended defendant, Texarkana Foods. Appellant asserts that it was Appellee’s burden to prove that service was proper under both the statutory law and the Arkansas Rules of Civil Procedure. We agree with Appellant and conclude that service was not obtained in a timely manner pursuant to Rule 4(i).

Service of process or a waiver of that service is necessary in order to satisfy the due process requirements of the United States Constitution. Meeks, 301 Ark. 464, 785 S.W.2d 18 (citing Smith v. Edwards, 279 Ark. 79, 648 S.W.2d 482 (1983)). Statutory service requirements, being in derogation of common-law rights, must be strictly construed, and compliance with the requirements must be exact. Wilburn, 298 Ark. 461, 768 S.W.2d 531. The same reasoning applies to service requirements imposed by this court’s rules. Id. Thus, where sufficient notice of an action has not been given, and a default judgment has been granted, a motion to set aside the judgment must be granted. Meeks, 301 Ark. 464, 785 S.W.2d 18. The plaintiffs attempt at service of process and notice of impending default must be measured against the extremely heavy burden imposed upon him or her. Id. “[ judgments by default rendered without valid service are judgments rendered without jurisdiction and are therefore void.” Lawson v. Edmondson, 302 Ark. 46, 50, 786 S.W.2d 823, 825 (1990) (citing Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982), overruled on other grounds, Southern Transit Co. v. Collums, 333 Ark. 170, 966 S.W.2d 906 (1998)).

Arkansas Rule of Civil Procedure 4(i) provides:

(i) Time Limit for Service: If service of the summons is not made upon a defendant within 120 days after the filing of the complaint, the action shall be dismissed as to that defendant without prejudice upon motion or upon the court’s initiative. If a motion to extend is made within 120 days of the filing of the suit, the time for service may be extended by the court upon a showing of good cause. If service is made by mail pursuant to this rule, service shall be deemed to have been made for the purpose of this provision as of the date on which the process was accepted or refused. This paragraph shall not apply to service in a foreign country pursuant to Rule 4(e) or to complaints filed against unknown tortfeasors. [Emphasis added.]

This court has interpreted that subsection to mean that service of process must be accomplished within 120 days after the filing of the complaint unless the plaintiff has filed a motion to extend. Dougherty v. Sullivan, 318 Ark. 608, 887 S.W.2d 305 (1994). If service is not obtained within that time and no motion to extend is made, dismissal of the action is mandatory. Id.; Lawson, 302 Ark. 46, 786 S.W.2d 823.

Appellee contends that service was timely made pursuant to Ark. Code Ann. § 4-26-503 (Repl. 1991), which provides for service of process upon the Secretary of State where a corporation fails to appoint or maintain a registered agent in this state. Appellee maintains that she made valid service of process upon the Secretary of State, after she had attempted to serve the registered agent for Southeast Foods, Gordon McNulty. Appellee alternatively contends that service was perfected upon Lindsey Morden Claims Management, whom she asserts was Southeast Foods’ agent hired specifically to handle its litigation claims. We disagree.

According to Appellee’s attorney’s affidavit, service was not attempted on the Secretary of State, or the claims representative for Lindsey Morden Claims Management, until September 18, 1996, more than 120 days from the date the complaint was filed on May 1, 1996. Moreover, because service was attempted by certified mailings, the relevant date for determining whether service was timely under Rule 4(i) is the date the service is received. The Secretary of State’s office did not receive the certified mailing until October 4, 1996; the claims representative did not receive the mailing until October 7, 1996. Thus, because service of process was not completed within the 120-day time period provided for in Rule 4(i), and no motion for extension of the time was made by Appellee, the default judgment is void and the suit must be dismissed.

We find no merit to Appellee’s argument that an attempt at service tolls the 120-day period provided by Rule 4(i). Appellee cites no convincing authority for such a proposition; instead, she relies solely on the concurring opinion in Forrest City Mach. Works, Inc. v. Lyons, 315 Ark. 173, 866 S.W.2d 372 (1993) (Brown, J., concurring). That opinion is of no benefit to Appellee, as it addressed only the issue of timely commencement of a lawsuit under ARCP Rule 3 and the necessary relationship between Rules 3 and 4 in making such a determination.

Accordingly, we reverse the trial court’s order refusing to set aside the default judgment and dismiss the suit with prejudice, as the language in Rule 4(i) providing for dismissal without prejudice does not apply if the plaintiffs action is otherwise barred by the running of the statute of limitations. Hicks v. Clark, 316 Ark. 148, 870 S.W.2d 750 (1994); Green v. Wiggins, 304 Ark. 484, 803 S.W.2d 536 (1991). Here, the alleged negligent act occurred on May 15, 1995, when Appellee slipped and fell in the County Market grocery store; hence, the action is now barred by the three-year statute of limitations.

Reversed and dismissed.


source: Caselaw Access Project

author: Robert L. Brown, Justice. Ray Thornton, Justice,

license: Public Domain

text:
    Thomas and Alisa CUMMINGS v. BIG MAC MOBILE HOMES, INC., and Bank Services
    98-194
    980 S.W.2d 550
    Supreme Court of Arkansas
    Opinion delivered November 19, 1998

      Hartsfield, Almand & Grisham, LLP, by: William G. Almand, for appellants.

      Stephen Cobb, for appellees.
   Robert L. Brown, Justice.

The issues raised by appellants Timothy and Alisa Cummings in this case are whether the trial court erred in concluding that an exception to the exhaustion-of-remedies doctrine did not apply and whether the regulations at issue exceeded the legislative authority granted to the Arkansas Manufactured Home Commission. We hold that an exception to the rule requiring an exhaustion of administrative remedies does apply in this case, and we reverse the trial court.

On January 9, 1995, the Cummingses purchased a new 1995 Classic Express mobile home from appellee Big Mac Mobile Homes, Inc., for $20,870.50. From the time the mobile home was delivered to the Cummingses, it leaked water from the roof each time it rained, and the water ran down the interior walls. Big Mac made four unsuccessful attempts to repair the water leak: (1) on January 16, 1995; (2) on February 3, 1995; (3) on February 15, 1995; and (4) on May 10, 1995. On April 17, 1996, the Cummingses revoked their acceptance of the mobile home by letter to Big Mac, tendered the mobile home to Big Mac, and demanded return of payments made on the mobile home. Big Mac refused the tender.

On July 9, 1996, the Cummingses filed a complaint for breach of the sales contract and alleged that the mobile home was in a “structurally defective condition” when delivered to them and that this nonconformity substantially impaired its value to them. The Cummingses further alleged that they had tendered the mobile home to Big Mac and that Big Mac had refused the tender. They sought damages in excess of $30,000 for breach of contract. The requested damages included payments made on the purchase price of the mobile home and premiums for casualty insurance. Big Mac then filed a third-party complaint against Classic Housing, Inc., the manufacturer of the mobile home, and prayed for judgment over in the event Big Mac was found liable.

On May 5, 1997, Big Mac moved to dismiss the complaint due to failure to exhaust administrative remedies. Specifically, Big Mac asserted that the Cummingses had failed to file a complaint with the Arkansas Manufactured Home Commission. On September 2, 1997, the Cummingses filed an Amended and Substituted Complaint and joined BankAmerica Housing Services as a party defendant and as assignee of the Big Mac installment sales contract on the mobile home, but they alleged no wrongdoing against that party. The stated purpose for joining BankAmerica Housing was to bind that party in the event of a judgment against Big Mac. On September 22, 1998, the trial court granted Big Mac’s motion to dismiss without explanation. The Cummingses filed a Motion for Findings of Fact and Conclusions of Law and for Reconsideration. On October 21, 1997, findings of fact and conclusions of law were entered by the trial court, and on October 22, 1997, the motion for reconsideration was denied. The Cummingses filed a timely appeal from the order denying reconsideration of the dismissal.

The Cummingses first contend that there was error on the part of the trial court in failing to apply an exception to the doctrine of exhaustion of 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); 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 Hankins v. McElroy, 313 Ark. 394, 855 S.W.2d 310 (1993); Truck Transp. Inc. v. Miller Transporters, Inc., 285 Ark. 172, 685 S.W.2d 798 (1985).

However, in Barr v. Arkansas Blue Cross and Blue Shield, Inc., 297 Ark. 262, 761 S.W.2d 174 (1988), this court recognized that exhaustion of administrative remedies is not required where no genuine opportunity for adequate relief exists, where irreparable injury will result if the complaining party is compelled to pursue administrative remedies, or where an administrative appeal would be futile. See also Regional Care Facilities, Inc. v. Rose Care, Inc., 322 Ark. 780, 912 S.W.2d 406 (1995); Delta School of Commerce, Inc. v. Harris, supra; Arkansas Motor Vehicle Comm’n v. Cantrell Marine, Inc., 305 Ark. 449, 808 S.W.2d 765 (1991). Thus, inadequate or futile administrative remedies need not be exhausted before other remedies are pursued. See Coit Independence Joint Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989).

We turn then to the applicable statutes. The General Assembly first enacted Act 419 of 1977, now codified, as amended, at Ark. Code Ann. §§ 20-25-101 through 20-25-113 (Repl. 1991, Supp. 1997), to provide for the establishment of the Arkansas Manufactured Home Commission, for the adoption of uniform standards for the building of manufactured homes, and for enforcement of those standards by penalties. Subsequendy, by Act 346 of 1987, now codified at Ark. Code Ann. §§ 20-29-101 through 20-29-111 (Repl. 1991), procedures for filing complaints before the Commission and for awarding damages for the actual cost of repairs were enacted. Section 20-29-105 specifically deals with the filing of these complaints:

(a) All consumer, licensee, installer, dealer, or manufacturer complaints shall be filed with the commission. The commission shall determine, by hearing or whatever procedure it establishes, if any standard adopted by the commission has been violated and, if so, the actual cost of repairs to the manufactured home, if any, suffered by the aggrieved party or parties.
(b) The amount of damages awarded by the commission shall be limited to the actual cost of repairs to the manufactured home and shall not include attorneys’ fees. On appeal to the circuit court from an award of the commission, the jurisdiction of the circuit court shall be limited to the actual cost of repairs to the manufactured home. The circuit court shall not have jurisdiction to award punitive or exemplary damages for claims covered by the provisions of this chapter, attorneys’ fees, or court costs.

Section 20-29-106 then addresses available damage awards:

(a) Upon a finding by the commission that a standard has been violated, the commission shall direct the respondent licensee, dealer, installer, or manufacturer to pay the awarded amount to the complainant.
(b) If the amount is not paid within thirty (30) days following the written decision of the commission and no appeal of the decision has been filed in the circuit court, the commission shall, upon request, pay from the Manufactured Housing Recovery Fund the amount of the award to the complainant if:
(1) The amount is not in excess of ten thousand dollars ($10,000) for any one (1) violation of the respondent licensee, installer, dealer, or manufacturer;

The Commission later adopted rules which mirror the authority granted by these statutes. See Section XII, Rules and Regulations for Manufactured Homes (1993).

Under the Arkansas statutes and the Commission rules, it is clear that the Commission only provides a remedy for damages for the actual cost of repairs when one of its standards has been violated. But in the case at hand, damages for repairs is not the remedy requested. Indeed, the Cummingses assert that their mobile home is beyond repair. They seek the remedy of revocation of acceptance, under the Uniform Commercial Code, due to a nonconformity which substantially impairs the mobile home’s value to them. See Ark. Code Ann. § 4-2-608 (Repl. 1991). Following a tender of the mobile home to Big Mac, they seek return of the sales price paid. To ask for this remedy before the Commission would be manifestly futile because this remedy is simply not available.

The case of Delta School of Commerce v. Harris, supra, provides authority for our holding today. In Harris, this court held that an administrative remedy was inadequate for its failure to allow the plaintiff/students’ requested relief of consequential damages, including lost wages and out-of-pocket expenses. The students’ complaint was that the school had made fraudulent statements which induced them to enroll, and they sought actual, consequential, and punitive damages. Prior to this action, the U.S. Secretary of Education had adopted federal regulations pursuant to its statutory grant of authority which allowed a student to file a complaint with the Secretary. The federal regulations provided that if a student’s complaint was valid, the Secretary could initiate an action to fine the institution, or limit, suspend, or terminate the institution’s eligibility to participate in the Higher Education Assistance Act, and take “other appropriate action.” We affirmed a damage award by the jury in favor of the students and held that because the federal regulations did not allow the Secretary to pursue consequential damages for a student, such as lost wages and out-of-pocket expenses, the administrative remedy was inadequate. That is precisely the situation we have in the case at bar.

We conclude that when a plaintiff prays for relief that is clearly not available at the administrative level, exhaustion of other available administrative remedies is not required. See Delta School of Commerce, Inc. v. Harris, supra. See also O & G Indus., Inc. v. Planning and Zoning Comm’n, 655 A.2d 1121 (Conn. 1995) (an administrative remedy is adequate only if it can provide the plaintiff with the relief it seeks and judicial review of the administrative decision); Maresca v. Town of Ridgefield, 647 A.2d 751 (Conn. App. Ct. 1994) (administrative remedy inadequate when employee sought money damages and reinstatement was the only administrative remedy available).

We do note where the trial court made a finding of fact in the instant case that filing a claim with the Commission would not be futile. That finding was clearly erroneous. We view Big Mac’s motion to dismiss due to failure to exhaust administrative remedies as a Rule 12(b)(6) motion to dismiss for failure to state facts upon which relief may be granted. See Ark. R. Civ. P. 12(b)(6). See also Taylor v. U.S. Treasury Dept., 127 F.3d 470 (5th Cir. 1997). It is settled law that when deciding a Rule 12(b)(6) motion to dismiss, such as we have here, a trial court must treat the facts alleged in the complaint as true and view them in the light most favorable to the nonmoving party. See Hames v. Cravens, 332 Ark. 437, 966 S.W.2d 244 (1998). Moreover, a trial court looks only to the allegations in the complaint when deciding a motion to dismiss. See Hames v. Cravens, supra; Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994). Here, the allegations in the complaint are that the mobile home is structurally defective and that repairs by Big Mac have been ineffective. Accepting these allegations as true, as the trial court was required to do, a remedy to reimburse for repairs would be no remedy at all. Even if the trial court’s order is considered one for summary judgment, the issue of the inadequacy of the remedy is a genuine issue of material fact between the parties, rendering summary judgment inappropriate. See Ark. R. Civ. P. 56(c).

Finally, we observe that the statutory schemes that establish the Commission and provide consumer recovery do not in any way indicate that the General Assembly intended to preempt a consumer’s remedies at law. In fact, one provision of the Code establishing the Commission suggests just the opposite. See Ark. Code Ann. § 20-25~110(c) (Repl. 1991). Section 20-25-110 requires a mobile-home manufacturer to issue a warranty guaranteeing that the mobile home is free from material defects and built in a workmanlike manner. Subparagraph (c) of § 20-25-110 states that: “The warranty shall be in addition to, and not in derogation of, all other rights and privileges which the buyer may have under any other law or instrument.” This provision is clear that with regard to manufacturers the administrative scheme is not meant to be exclusive of other remedies at law that consumers might have.

In short, it appears patently clear to this court and beyond any serious dispute that the remedy sought by the Cummingses, on its face, is not available at the Commission level. We hold that in light of the fact that an administrative remedy was unavailable, it would have been a futile act to require the appellants to file their complaint seeking revocation of acceptance first with the Commission. We reverse and remand the matter to the trial court for further proceedings. Because we reverse on this point, we need not address the Cummingses’ second point that the Commission’s regulations, as interpreted by the trial court, would exceed the Commission’s legislative authority.

Reversed and remanded.

Thornton, J., dissents.

Ray Thornton, Justice,

dissenting. I would affirm the findings of the trial court on the grounds that appellants must exhaust their administrative remedies before the Arkansas Manufactured Home Commission before pursuing judicial relief in this matter. I respectfully dissent from the majority opinion that by choosing not to claim damages but rather to seek the rescission of a contract to purchase more than a year after the purchase contract was entered into, appellants should be allowed to deprive the administrative agency of its authority and responsibility to determine whether standards had been violated, and, if so, to award appropriate damages. See Ark. Code Ann. § 20-29-105 (Repl. 1991).

In my view, the Legislature created the Commission to provide protection to consumers who purchased defective manufactured homes. Recognizing the special problems associated with recovering damages from dealers and manufacturers who had inadequate financial resources or were otherwise judgment-proof, the Legislature provided a Recovery Fund to underwrite damages up to $10,000.00 per unit. However, no limitation was imposed upon the maximum remedy to be recovered from the manufacturer or dealer which violated the standards.

The rationale for the establishment of a recovery fund to protect the consumer is similar to the principle that an award from the Worker’s Compensation Commission generally does not require a proof of fault for recovery for work-related injuries. As we stated in Brown v. Finney, 326 Ark. 691, 694, 932 S.W.2d 769, 771 (1996), the purpose behind the Worker’s Compensation Act

. . . was to change the common law by shifting the burden off all work-related injuries from individual employers and employees to the consuming public with the concept of fault being virtually immaterial. See Simmons First Nat’l Bank v. Thompson, 285 Ark. 274, 686 S.W.2d 415 (1985). With the passage of such statutes, employers gave up the common law defenses of contributory negligence, fellow servant, and assumption of the risk and, likewise, employees gave up the chance of recovering unlimited damages in return for certain recovery in all work-related cases. Id.

Brown, 326 Ark. at 694, 932 S.W.2d at 771.

Here, the Legislature clearly intended that all actions concerning defects in manufactured housing should be addressed by the Commission, but did not statutorily provide that the remedy be exclusive. The majority has properly cited the applicable provisions of Ark. Code Ann. § 20-29-105, but I wish to emphasize the first sentence of that statutory provision: “All consumer, licensee, installer, dealer, or manufacturer complaints shall be filed with the Commission.” Ark. Code Ann. § 20-29-105(a) (Repl. 1991). While I agree with the majority that this delegation is not statutorily exclusive as provided in the workers’ compensation law, hopefully all members of the court would agree that in the absence of a statutory delegation of exclusive jurisdiction, the jurisprudential doctrine of exhaustion controls.

The jurisprudential-exhaustion doctrine is a “long settled rule of judicial administration [which mandates] that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.” Taylor v. U.S. Treasury Dept., 127 F.3d 470, 476 (5th Cir. 1997), citing Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51. Arkansas courts have previously held that exhaustion of administrative remedies is not required where irreparable injury will result if the complaining party is compelled to pursue administrative remedies, or where an administrative appeal would be futile. Delta School of Commerce, Inc. v. Harris, 310 Ark. 611, 618, 839 S.W.2d 203, 207 (1992); Barr v. Arkansas Blue Cross and Blue Shield, Inc., 297 Ark. 262, 267, 761 S.W.2d 174, 177 (1988). Here, the majority has determined that the case, as pleaded, requests relief not available to appellants under the administrative remedy available before the Manufactured Home Commission, and that therefore the remedy is inadequate and need not be exhausted. This conclusion is flawed, in my view, simply because the remedy of damages for the entire purchase price, which is available through administrative action, is adequate.

As the majority quite correctly notes, the General Assembly provided for the establishment of the Arkansas Manufactured Home Commission to adopt uniform standards for the building, selling, and installation of manufactured homes, and to enforce those standards and deter violations through penalties. Act 346 of 1987, codified at Ark. Code Ann. §§ 20-29-101 through 20-29-111 (Repl. 1991), outlines procedures for filing consumer complaints before the Commission, which is empowered to award damages for the cost of repairs. Under these sections, the Arkansas Manufactured Home Commission is authorized to collect annual assessments of manufacturers, dealers, and installers of manufactured homes to contribute to a recovery fund whose purpose is to pay awards for claims and complaints filed with the Commission. Section 20-29-105 provides:

All consumer, licensee, installer, dealer, or manufacturer complaints shall be filed with the Commission. The Commission shall determine by a hearing or whatever procedure it establishes first, if any, standard adopted by the Commission has been violated, and, if so, the actual cost of repairs to the manufactured home, if any, suffered by the aggrieved party or parties.

Ark. Code Ann. § 20-29-105(a) (Repl. 1991). It seems clear to me that if a structure as substantial as a manufactured home is truly beyond repair, the limit of recovery which could be awarded by the Commission would be the cost of a new home.

Upon finding that a standard has been violated, the Commission shall direct the respondent to pay the awarded amount. If the amount is not paid, and the award is not appealed to circuit court, the Commission may pay the award to the complainant from the Recovery Fund, so long as the amount is not in excess of $10,000.00, and the complainant agrees to subrogate his claim to the Commission. Ark. Code Ann. § 20-29-106(a)-(b) (Repl. 1991).

The language of the statute providing that “All consumer, licensee, installer, dealer, or manufacturer complaints shall be filed with the Commission” clearly indicates the Legislature’s intention that disputes such as these be brought before the Commission. This effectuates the legislative goal that the Commission enforce the state’s standards and penalize violators. The majority’s opinion defeats these goals; agency enforcement of state standards is impossible where the Commission is not made aware of violations. 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. Hankins v. McElroy, 313 Ark. 394, 855 S.W.2d 310 (1993).

Furthermore, the Legislature has revealed its intention that this is a remedy which must be exhausted in the following provisions concerning appeals to circuit court:

Appeals from a decision of the Commission shall be to the Circuit Court in accordance with the Arkansas Administrative Procedure Act. Such appeal shall stay that portion of the Commission order which directs payment of the damage. Neither the respondent nor the Commission shall be required to pay damages to the complainant until such time as a final order of the Circuit Court, Court of Appeals, or Supreme Court is issued.
On appeal, the Circuit Court jurisdiction in awarding damages to be paid from the fund shall be limited in amount to (a) the amount determined by the Commission, or (b) the limits set forth herein. The Court shall not award attorneys’ fees or court costs to be paid by the fund.

Ark. Code Ann. § 20-29-107 (Repl. 1991).

The amount of damages awarded by the Commission shall be limited to the actual cost of repairs to the manufactured home and shall not include attorneys’ fees. On appeal to the Circuit Court from an award of the Commission, the jurisdiction of the Circuit Court shall be limited to the actual cost of repairs to the manufactured home. The Circuit Court shall not have jurisdiction to award punitive or exemplary damages for claims covered by the provision of this chapter, attorneys’ fees, or costs.

Ark. Code Arm. § 20-29-105(b) (Repl. 1991).

While appellants argue that they seek a remedy which is beyond the power and authority of the Commission to grant, a plain reading of the above-quoted statutory language reveals no limits on the compensatory damages that may be granted to a complainant by the Commission; indeed, damages for the full amount of the manufactured home may be appropriate, thus effecting a rescission of the sales contract. The only remedies which are unavailable from the Commission are those for attorney’s fees and exemplary damages. This limitation on recovery, like the limitation on an action in tort in workers’ compensation cases, is offset by the availability of up to $10,000.00 from the Commission’s Recovery Fund, just as the worker’s tort claim is offset by the assured recovery for work-related injuries.

The majority opinion relies strongly upon the language of the Code regarding consumer’s rights in addition to the warranty on the manufactured home which is required by the statutes. It seems clear to me that this provision relating to warranties, coupled with the Commission’s authority to award damages, negates any conclusion that proceeding before the Commission would be futile. I agree with the trial court’s conclusion that administrative remedies should be exhausted before the courts accept jurisdiction, and respectfully dissent from the majority’s opinion.

       Big Mac erroneously cites Act 419 of 1977 as authority for its motion. Act 346 of 1987 provides for complaints to the Commission for costs of repairs. See Ark. Code Ann. § 20-29-105 (Repl. 1991).


author: Robert L. Brown, Justice.

text:
    William Martin O’FALLON, Administrator v. Ronnie O’FALLON, By and Through His Next Friend, Linda Ngar
    98-226
    980 S.W.2d 246
    Supreme Court of Arkansas
    Opinion delivered November 19, 1998

      Gibson & Hashem, by: Paul W. Keith, for appellant.

      Ball, Barton & Hoffman, by: David Hoffman, for appellee.
   Robert L. Brown, Justice.

This appeal concerns the Estate of Barney O’Fallon and whether the decedent made a gift of a 1996 Chevrolet Camaro to his son, Ronnie O’Fallon, prior to his death. The appellant, William Martin O’Fallon, is the administrator of Barney O’Fallon’s intestate estate. The case was certified to this court from the Court of Appeals for us to interpret Ark. R. Civ. P. 5(a) and decide whether the record on appeal, which was shown as filed 91 days after the first notice of appeal, was timely. Because of the history of this case, we conclude that the record was timely filed. Thus, we need not reach the issue certified to us for determination. However, because the probate court was without jurisdiction to decide the issue at hand, we reverse and remand the case for transfer to the proper court.

We initially discuss why the record was timely filed. The order appealed from was entered by the probate judge on November 3, 1997. William Martin O’Fallon, as administrator, filed his Notice of Appeal and Designation of the Record on November 19, 1997. He next filed an Amended and Substituted Notice of Appeal and Designation of the Record on December 1, 1997. The administrator tendered the record to the Clerk of the Supreme Court on February 5, 1998, which was 78 days from the first notice of appeal. The Clerk, however, advised counsel for the administrator that the record was deficient due to the probate clerk’s failure to number the pages of the transcript consecutively. Counsel began the process of having the probate clerk correct the pagination, and during this period, he confirmed with the Supreme Court Clerk by letters dated February 11, 1998, and February 16, 1998, that the tender of the record on the 78th day was tantamount to compliance with the 90-day rule. That correspondence is part of the file in this matter.

When the pagination in the record was corrected and the revised record was received on February 18, 1998, the Supreme Court Clerk’s office docketed the record to show its receipt as of that day which was the 91st day. This was an error on the part of the Clerk’s office. The docket sheet should have shown filing as of the 90th day because the practice of the Clerk’s office is to deem a record timely filed when errors in form are corrected in a record that was initially tendered on time. See D.B. Griffin Warehouse, Inc. v. Sanders, 332 Ark. 510, 965 S.W.2d 784 (1998) (per curiam). Though D.B. Griffin Warehouse, Inc. v. Sanders, supra, refers to a seven-day period for correcting errors in form in the record, the seven-day extension period actually is the additional time allowed for filing briefs under our rules. See Ark. Sup. Ct. R. 4-4(f). We incorrectly applied the seven-day extension period to a record in the D.B. Griffin Warehouse case. For correcting errors in form in the record, the practice of the Supreme Court Clerk’s office is to allow a longer period than seven days, if necessary. If the corrected record is filed within 90 days, that date of filing begins the briefing schedule. However, if a corrected record which has previously been tendered on time is submitted for fifing after the 90-day period has run, it is shown as filed as of the 90th day rather than the date the record was first tendered. The reason for this is to allow the briefing schedule to begin to run as of the 90th day. We deem the record in this case to be timely filed. Hence, we need not consider the issue certified to this court regarding Ark. R. Civ. P. 5(a).

There is a second jurisdictional problem with this case, however. The matter comes to us as a dispute over an alleged gift of property made prior to the decedent’s death. Ronnie O’Fallon does not claim the 1996 Chevrolet Camaro as a beneficiary of his father’s estate but rather as a donee of a gift from his father made before his death. As such, he is claiming the property in his own right and as a “stranger” to the probate estate. See Jolly v. Estate of Jolly, 333 Ark. 394, 970 S.W.2d 221 (1998); see also Ellsworth v. Cornes, 204 Ark. 756, 165 S.W.2d 57 (1942). Because Ronnie O’Fallon has no claim to the car as a beneficiary of the probate estate but is only an alleged donee of a gift, the appropriate jurisdiction for this matter was chancery court. See id.; see also Hilburn v. First State Bank, 259 Ark. 569, 535 S.W.2d 810 (1976). And because the probate court lacked jurisdiction of this matter, so does this court. See Jolly v. Estate of Jolly, supra; Craig v. Traylor, 323 Ark. 363, 915 S.W.2d 257 (1996). As we did in the Jolly case, we reverse the probate court’s order and remand the case to the probate court for transfer to the proper court.

Reversed and remanded.


text:
    ROUTH WRECKER SERVICE, INC. v. Codney A. WASHINGTON
    98-403
    980 S.W.2d 240
    Supreme Court of Arkansas
    Opinion delivered November 19, 1998

      Robert A. Newcomb, for appellants.

      Evelyn L. Moorehead, for appellee/cross-appellant.
   Robert L. Brown, Justice.

This appeal raises the issues of whether the trial court should have granted the motion of appellants Routh’s Wrecker Service, Inc., and Ronald Routh (hereafter jointly referred to as Routh) to direct a verdict on the abuse-of-process claim and, secondly, whether the trial court should have remitted the punitive-damages award. The Court of Appeals affirmed the judgment in favor of appellant/ cross-appellee Codney A. Washington in an unpublished opinion. We granted review of the case to consider the trial court’s ruling on punitive damages in light of BMW of North America v. Gore, 517 U.S. 559 (1996). We review the judgment, orders, and proceedings before the trial court as if the appeal had originally been filed in this court. Malone v. Texarkana Pub. Sch., 333 Ark. 343, 969 S.W.2d 644 (1998). We hold that the trial court did not err in its ridings, and we affirm. With respect to Washington’s cross-appeal, we likewise affirm.

The facts are these. On Saturday, June 11, 1994, Washington and a friend attended a car auction sponsored by Routh. At the auction, Washington purchased a 1988 Ford Escort for $400 and paid Routh by check. Because the car was blocked by other cars, Washington did not take the car with him that day. Routh representatives told him he could leave the car on the lot for five business days. When he returned for the car on the following Monday, the Escort’s battery, spare tire, and some tools were missing. Washington left the car on the lot and stopped payment on the $400 check. He later testified that he expected Routh to contact him to resolve the matter because he still intended to purchase the car.

On June 29, 1994, Ronald Routh, general manager of Routh Wrecker, contacted the prosecuting attorney’s office and swore out an affidavit for a warrant of arrest for Washington. He averred in the affidavit that Washington had stopped payment on the check but had not returned the Escort to the premises nor the documentation for sale. On July 11, 1994, Litde Rock police officers arrested Washington at his place of employment, First Commercial Bank in Little Rock. They handcuffed him at the bank, led him to a police car, booked him at the police station, and put him in a holding cell. After the arrest, Frank Washington, Washington’s father, called Routh. Routh told him that all he wanted was his money and that he would drop the charges if he was paid. Washington advised his father not to pay the $400. Immediately after the arrest, Washington’s attorney contacted Routh and told him that the car was still on the lot, which Routh verified. Routh explained to the attorney that storage charges on the vehicle had accrued and should be paid.

Routh did not drop the charges. On September 19, 1994, at the probable cause hearing in municipal court, the municipal judge found probable cause for a theft arrest based on Routh’s testimony that Washington was given the car keys and legal documents and then stopped payment on the check. The case was certified to circuit court, where charges were not filed by the prosecuting attorney.

On June 28, 1996, Washington filed a complaint against Routh. His later amended complaint alleged abuse of process, malicious prosecution, libel, and conversion. He sought $75,000 or more in compensatory damages and $150,000 in punitive damages. The trial court dismissed the libel claim before trial began and directed a verdict in favor of Routh on the conversion charge following Washington’s case-in-chief. The two claims of malicious prosecution and abuse of process went to the jury. The jury returned a verdict in Washington’s favor of $1,000 in compensatory damages and $75,000 in punitive damages on the abuse-of-process claim and $0.00 compensatory damages and $75,000 in punitive damages on the malicious-prosecution claim. After the trial, the trial court entered a directed-verdict order in favor of Routh on the malicious-prosecution claim followed by a judgment for Washington on the claim for abuse of process. Routh filed a motion for judgment NOV, a new trial, and a remittitur, all of which were denied. He appealed from the judgment and the order denying the posttrial motions, and Washington cross-appealed.

I. Motion to Dismiss the Appeal

We begin by deciding Washington’s motion to dismiss this appeal. Washington’s grounds for dismissal are that on May 13, 1997, he filed a motion under Ark. R. Civ. P. 52(b) for findings of fact concerning the trial court’s dismissal of his libel claim and the directed verdict of his conversion claim. Routh then filed his notice of appeal on May 22, 1997. According to Washington, Routh’s notice of appeal was premature because the trial court did not rule on his Rule 52(b) motion, and he had 30 days under Ark. R. App. P. — Civil 4(c) before the motion was deemed denied.

We disagree with Washington for the reason that we do not consider his motion for findings of fact to be a true Rule 52(b) motion. Rule 52(b), by its terms, applies to trials where the trial court has made findings of fact, and the movant requests the trial court to amend them. The trials contemplated are bench trials which is made clear in both sections (a) and (b) of Rule 52. Hence, Washington’s motion for findings of fact following a jury trial does not qualify as a Rule 52(b) motion. Nor do we agree ■with Washington that the trial court’s dismissal of the libel claims and its directed verdict on conversion equate to a bench trial on the merits. And, finally, Arkansas does not recognize the principle of additur. Thus, Washington’s motion for additur does not qualify as a motion for judgment NOV under Ark. R. Civ. P. 50(b) or motion for new trial under Ark. R. Civ. P. 59(5). Washington’s motion is misguided, and it is denied.

II. Directed Verdict on Abuse of Process

Routh strongly contends that the process in this case was not perverted to an improper motive after it was initially set in motion. He urges, in this regard, that the trial court erred in not directing a verdict in his favor on abuse of process.

Our standard of review for the denial of a motion for a directed verdict is whether the jury’s verdict is supported by substantial evidence. See Union Pac. R.R. Co. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997); Ouachita Wilderness Inst. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997). Substantial evidence is defined as “evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond suspicion or conjecture.” Esry v. Carden, 328 Ark. 153, 942 S.W.2d 846 (1997). When determining the sufficiency of the evidence, we review the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. See Union Pacific R.R. Co. v. Sharp, supra. In such situations, the weight and value of testimony is a matter within the exclusive province of the jury. See id.

This court has stated that the test of abuse of process is whether a judicial process is used to extort or coerce. See Corders v. Outdoor Living Ctr., Inc., 301 Ark. 26, 781 S.W.2d 31 (1989). The elements of the tort are: (1) a legal procedure set in motion in proper form, even with probable cause and ultimate success; (2) the procedure is perverted to accomplish an ulterior purpose for which it was not designed; and (3) a willful act is perpetrated in the use of process which is not proper in the regular conduct of the proceeding. See Wynn v. Remet, 321 Ark. 227, 902 S.W.2d 213 (1995); Harmon v. Carco Carriage Corp., 320 Ark. 322, 895 S.W.2d 938 (1995). In short, the key to the tort is the improper use of process after its issuance in order to accomplish a purpose for which the process was not designed. See Harmon v. Carco Car riage Corp., supra; Union Nat’l Bank v. Kutait, 312 Ark. 14, 846 S.W.2d 652 (1993). Thus, it is the purpose for which the process is used, once issued, that is important in reaching a conclusion. See Harmon, supra.

In Harmon, supra, the defendant, a Hertz licensee, was instructed by the Hertz Claims Management Corporation, which was involved in a dispute with the plaintiff, not to extend its lease agreement with the plaintiff. The company instructed the defendant to collect the rental fee from the plaintiff or get the car back. The defendant completed an affidavit for a warrant for plaintiff s arrest, stating that the plaintiff had leased the car and refused to return it. After the warrant was issued, the defendant did nothing to stop the proceedings even though it was told the car was available to be picked up. In holding that summary judgment in favor of the defendant on the abuse-of-process claim was error, we noted a potential abuse of process in the defendant’s failure to do anything to prevent the issuance of the arrest warrant or the trial itself. We further observed that the use of criminal prosecution to extort payment of money or recovery of property is a classic example of the tort of abuse of process.

The Harmon facts bear some similarity to the case at bar. Here, Routh initiated a proceeding against Washington that caused his arrest. Washington’s father testified that he spoke to Ron Routh after the arrest and Routh’s response was that all he wanted was his money and he would drop the charges. Routh admitted that although he knew the car was on the lot, he did not ask to drop the charges. Instead, he allowed the case to proceed to a probable-cause hearing in municipal court, after which it was bound over to circuit court. Routh knew that Washington did not have the odometer statement which is necessary to obtain the actual certificate of title to the car. He further knew that Washington did not have the car itself, and he later admitted that he did not know who had the keys to the car. However, at the probable-cause hearing, Routh testified that Washington had failed to return the keys and the legal paperwork. This inconsistency between Routh’s knowledge and testimony in municipal court was emphasized by Washington at the civil trial.

We conclude that after the arrest warrant, Routh allowed the case to proceed to a hearing in municipal court for the coercive purpose of collecting the $400. This is enough for Washington’s case to survive a directed verdict for abuse of process. We affirm the trial court on this point.

III. Punitive Damages

Routh next argues that an award of $75,000 in punitive damages, when the compensatory damages were only $1,000, is excessive and violates due process under BMW of North America, Inc. v. Gore, supra. He also underscores that this court has never upheld a punitive-damage award with a ratio as high as 75 to 1.

State appellate courts that have considered the punitive-damages issue in light of Gore have adopted a two-step analysis. The first step is to determine whether the award of punitives damages is excessive under state law; the next is to consider the award in light of the due-process analysis in Gore. See Ford Motor Co. v. Sperau, 708 So.2d 111 (Ala. 1998) (reducing $6 million in punitives to $1,792 million based on the lack of a high degree of reprehensibility); Wightman v. Consolidated Rail Corp., No. E-97-001, 1997 WL 614926 (Ohio Ct. App. Sept. 30, 1997) (affirming $15,000,000 in punitives when actual damages were $2,400). See also United States v. Oak Manor Apts., 11 F. Supp. 2d 1047 (W.D. Ark. 1998) (punitive damages of $50,000 foEowing compensatory damages of $500 for purposeful housing discrimination were not so excessive as to violate due process.)

When considering the issue of remittitur of punitive damages, we review the issue de novo. See Smith v. Hansen, 323 Ark. 188, 914 S.W.2d 285 (1996). We consider the extent and enormity of the wrong, the intent of the party committing the wrong, aE the circumstances, and the financial and social condition and standing of the erring party. See United Ins. Co. of America v. Murphy, 331 Ark. 364, 961 S.W.2d 752 (1998); McLaughlin v. Cox, 324 Ark. 361, 922 S.W.2d 327 (1996). Punitive damages are a penalty for conduct that is malicious or perpetrated with the deliberate intent to injure another. See United States Ins. Co., supra. When punitive damages are alleged to be excessive, we review the proof and all reasonable inferences in the light most favorable to the appellees, and we determine whether the verdict is so great as to shock the conscience of this court or to demonstrate passion or prejudice on the part of the trier of fact. See Houston v. Knoedl, 329 Ark. 91, 947 S.W.2d 745 (1997); Collins v. Hinton, 327 Ark. 159, 937 S.W.2d 164 (1997). It is important that the punitive damages be sufficient to deter others from comparable conduct in the future. See McLaughlin v. Cox, supra.

In this case, the trial court denied Routh’s motion for remittitur and found that there was some evidence of Routh’s wealth in the testimony that the business has 20 employees and owns a 5 to 6 acre enterprise and that hundreds of cars are sold there every few months. The trial court also stated that the judgment did not shock its conscience and that it felt, in view of what Washington suffered at work, the damages awarded may not have been enough.

We affirm the trial court’s decision not to grant a remittitur. The circumstances in this case are egregious and nightmarish. Washington, a young African-American male, was arrested at work at the bank in front of his peers and supervisor. The testimony was that he was humiliated, suffered emotional distress, and was frightened about what might happen to him. After the arrest, he suffered migraine headaches and could not sleep or eat. He lost 30 pounds. Several witnesses testified to the dramatic and negative changes to him, including a loss of interest in social activities and depression. His psychologist, Dr. James Moneypenney, testified that because of Washington’s status as a young African-American, the arrest struck at the core of his identity and that “something important has been taken from him and I think he is going to continue to suffer from that.”

Even after he found the Escort on his lot, Routh did nothing to stop the proceedings against Washington. He did not inform the prosecuting attorney that the car was on his lot until the day of the probable-cause hearing. At the hearing, he testified that Washington had failed to return the paperwork or keys to him, implying that Washington had converted this property, if not the car itself. In point of fact, Washington never had the keys to the car in his possession, never took the car from the lot, and never had all the necessary paperwork to obtain title to the Escort. We conclude that malice can certainly be inferred from Routh’s statement to Washington’s father that if he got paid, he would drop the charges. We hold that the jury’s punitive award was not excessive.

We turn then to the argument that the punitive damages were grossly excessive and violated due process under BMW of North America v. Gore, supra. In Gore, the United States Supreme Court held that the due process clause of the Fourteenth Amendment prohibits a state from imposing grossly excessive punishment on a tortfeasor. In that case, a new car purchaser sued after discovering that his car had been repainted prior to the sale. The jury awarded the purchaser $2 million in punitive damages. The Court held this award to be grossly excessive in light of the low level of reprehensibility of the conduct and the 500 to 1 ratio between the award and the actual harm. (There had been an award of $4,000 in compensatory damages.) The Court set out three guidelines for determining when an award would violate due process: (1) the degree of reprehensibility of the defendant’s conduct, (2) the award’s ratio to the actual harm inflicted on the plaintiff, and (3) a comparison of the punitive damages to the civil or criminal penalties that could be imposed for comparable conduct. The Court said that there was no mathematical bright line for determining gross excessiveness and that “low awards of compensatory damages may properly support a higher ratio than high compensatory awards, if, for example, a particularly egregious act has resulted in only a small amount of economic damages.” Gore, 517 U.S. at 1602.

We think that the reprehensibility of Routh’s conduct in this case was high. He caused the arrest of Washington and then allowed the matter to proceed to municipal court in an effort to collect $400, though he had to know that Washington was not guilty of theft. The resulting impact on Washington was extreme psychological pressure and turmoil. The ratio of compensatory damages to punitive damages in the case was 75 to 1, which is well below the 500 to 1 ratio in Gore. Using the Gore factors, we conclude that the punitive damages of $75,000 are not so grossly excessive as to violate due process.

IV. Cross-appeal

Washington cross-appeals on the trial court’s dismissal of the libel count and the trial court’s supersedeas order which quashed his writ of garnishment on the judgment. For his first point, he urges that the trial court erred in affirming a rule of absolute privilege for any false statements made by Routh in municipal court. The issue raised by Washington concerns judicial immunity for witnesses testifying in private litigation. The law is capsulized in the Restatement of Torts, Second:

A party to a private litigation or a private prosecutor or defendant in a criminal prosecution is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of or during the course and as a part of, a judicial proceeding in which he participates, if the matter has some relation to the proceeding.

Restatement of Torts, Second § 587 (1977). See also Mershon v. Beasley, 994 F.2d 449 (8th Cir. 1993); Barnett v. Mobile County Personnel Bd., 536 So.2d 46 (Ala. 1988); Mauney v. Millar, 142 Ark. 500, 219 S.W. 1032 (1920); Spencer v. Spencer, 479 N.W.2d 293 (Iowa 1991). Cf. Selby v. Burgess, 289 Ark. 491, 712 S.W.2d 898 (1986) (attorney privilege for judicial pleadings). The trial court in the instant case clearly found Routh’s testimony to be relevant to the proceeding. We cannot say the trial court erred in this regard.

With regard to his second point that the trial court erred in quashing his writ of garnishment, we consider the issue essentially moot because of our decision today. On June 2, 1997, Routh filed a motion for the trial court to approve his supersedeas bond based on a proposed purchase of an $84,000 certificate of deposit jointly payable to Routh and Washington and to stay execution of the judgment. On June 5, 1997, a writ of garnishment was issued by the circuit clerk to Boatmen’s National Bank to satisfy the judgment in favor of Washington. On June 7, 1997, Washington objected to the certificate of deposit as security and stated that only a bond or pledge of real property would protect him. On June 9, 1997, Boatmen’s National Bank was ordered by the trial court to fund a certificate of deposit in the amount of $84,000 in the name of the circuit clerk as a supersedeas bond and deliver the CD to the circuit clerk. Upon issuance of the CD, the trial court ordered that Boatmen’s would be discharged from the writ of garnishment.

Following the mandate from the Clerk of the Supreme Court, Washington may pursue collection of his judgment against the certificate of deposit in the amount of $84,000 which was ordered delivered to the circuit clerk and held as a supersedeas bond. If for some reason the CD was not posted with the clerk, and the record is silent on this point, Washington’s writ of garnishment to Boatmen’s National Bank remains an effective lien under the trial court’s order. In sum, even if the supersedeas bond was filed after the writ of garnishment was issued, Washington has recourse, first, against the CD and, second, against Boatmen’s National Bank or its successor. We need not decide the issue raised.

Washington’s motion to dismiss is denied.

We affirm on direct appeal

We affirm on cross-appeal.

Corbin, J., not participating.

       Washington’s notice of appeal was filed on June 27, 1997, which was within the 30-day time period from the order quashing the writ of garnishment. His appeal from that order is in the nature of a direct appeal. See Ark. R. App. P. — Civil 2(a)5.


author: Annabelle Clinton Imber, Justice.

text:
    William G. FORD v. ARKANSAS GAME and FISH COMMISSION
    97-1016
    979 S.W.2d 897
    Supreme Court of Arkansas
    Opinion delivered November 19, 1998

      Bowden Law Firm, by: David O. Bowden, for appellant.

      James F. Goodhart and James B. Watson; Friday, Eldredge & Clark, by: Robert S. Shafer, David D. Wilson & Ellen M. Owens, for appellees.
   Annabelle Clinton Imber, Justice.

The appellant, William G. Ford, filed a declaratory-judgment action against the appellees, the Arkansas Game and Fish Commission (Commission), Ray Sebren, individually and in his official capacity as Chief of the Fiscal Division of the Commission, and Steve N. Wilson, individually and in his official capacity as Director of the Commission. The trial court dismissed Ford’s action without prejudice because Ford failed to exhaust his administrative remedies. We affirm.

On September 2, 1996, the Arkansas Game and Fish Commission cited Ford for possession of a quail out of season in violation of Regulation No. 18.010 and for having an unplugged shotgun in violation of Regulation No. 13.050. The citations notified Ford that he was scheduled to appear in the Sheridan Municipal Court on September 24, 1996, and that he could forfeit a bond in lieu of appearance. Ford paid a $400 bond and did not appear at the September 24, 1996 hearing.

On November 6, 1996, the Commission sent Ford a letter informing him that his hunting and fishing privileges “have been suspended for a period of three years” because Ford had accumulated more than thirty points “under the Hunting and Fishing Violations Point System established by Section 01.00-J, 08-90 Regulations.” The two September 2, 1996 violations were the only listed offenses. The letter also contained the following notification:

Section 25-15-201 et seq. of the Arkansas Code Annotated provides you with an opportunity for a review of your violation record in connection with your suspension. This review is for the purpose of determining whether the correct number of points were assessed, if they were assessed to the right person, and if the person’s violation record is correct. If the hearing officer finds these factors to be correct the suspension will stand. If you desire such a review, you must notify this Department in writing before the expiration of the tenth (10) [sic] day following your receipt of this letter. Should you request a review, your suspension will be held in abeyance until final disposition of your review. If you do not request a review, your suspension will become effective on the eleventh (11th) day following receipt of this letter and you must surrender your hunting and fishing licenses, if any, to this Department.

On November 19, 1996, Ford sent the Commission a written request for a hearing. In his letter, Ford declared that pursuant to section 25-15-201 of the Arkansas Administrative Procedures Act he was entitled to a more extensive hearing than described in the Commission’s November 6, 1996 letter. Specifically, Ford claimed that the scheduled hearing did not afford him the opportunity to challenge the statutory and constitutional authority for the Commission’s actions.

On November 21, 1996, Ford filed a declaratory-judgment action in the Grant County Circuit Court. In his complaint, Ford alleged that the Commission’s rules and actions were unconstitutional, and that the Commission had violated his civil rights under the Arkansas and federal civil rights acts. Ford asked for declaratory relief, damages, and attorney’s fees.

On January 13, 1997, the Commission granted Ford’s request for a hearing, which was scheduled for February 7, 1997. On January 16, 1997, Ford sent a letter to the Commission asking that the “administrative hearing be held in abeyance until such time as the lawsuit [the declaratory-judgment action] is considered.” The Commission granted Ford’s request on January 23, 1997. Since that time, the Commission has not taken any action, and the suspension of Ford’s licenses has been held in abeyance pending the resolution of the circuit court proceeding.

On February 27, 1997, the Commission filed a motion to dismiss alleging that Ford failed to exhaust his administrative remedies, and that venue was improper. On May 19, 1997, the trial court entered an “order of dismissal without prejudice,” because Ford “failed to exhaust his administrative remedies by fading to participate in the administrative hearing offered by the Arkansas Game Commission concerning the suspension of hunting and fishing privileges.” The court did not render a ruling on the venue issue because it was moot.

I. Standard of Review

Before addressing the merits of the arguments raised on appeal, we must determine the appropriate standard of review. As previously mentioned, the Commission filed a “motion to dismiss,” and the trial court entered an “order of dismissal.” However, in the first paragraph of the order, the court declared that it had considered “the law, facts, exhibits and arguments of counsel.” Pursuant to Ark. R. Civ. P. 12(b) and (c) a motion to dismiss is converted into a motion for summary judgment when matters outside of the pleadings are presented to and not excluded by the court. See McQuay v. Guntharp, 331 Ark. 466, 963 S.W.2d 583 (1998); Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996). Because it is clear from the wording of the order that the trial court considered matters outside of the pleadings, we hold that the order is one for summary judgment.

As we have said on numerous occasions, summary judgment is appropriate when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Nelson v. River Valley Bank & Trust, 334 Ark. 172, 971 S.W.2d 777 (1998); Youngman v. State Farm Mut. Auto. Ins., Co., 334 Ark. 73, 971 S.W.2d 248 (1998); Stapleton v. M.D. Limbaugh Constr. Co., 333 Ark. 381, 969 S.W.2d 648 (1998). In making this determination, we review the evidence in the light most favorable to the party resisting the motion and resolve all doubts and inferences in their favor. Nelson, supra; Youngman, supra; Stapleton, supra.

II. Exhaustion of Administrative Remedies

For his first argument on appeal, Ford claims that section 25-15-207 (Repl. 1996) of the Administrative Procedures Act allows him to file a declaratory-judgment action in circuit court without first exhausting his administrative remedies before the Commission. In deciding this issue, it is important to note that we are not addressing the merits of Ford’s constitutional challenges and his civil rights arguments. Instead, we are merely deciding whether Ford was required to obtain a final ruling from the Commission before filing his action in the circuit court. Moreover, we do not, at this time, render any ruling as to whether the Game and Fish Commission is legally bound by the terms of the Administrative Procedures Act, Ark. Code Ann. §§ 25-15-101 to 214 (Repl. 1996). In this case, the Commission voluntarily chose to proceed under the Administrative Procedures Act as indicated in its November 11, 1996 letter to Ford. Moreover, the Commission conceded as much during oral argument. These matters aside, we now proceed to the merits of Ford’s arguments.

A. Constitutional Arguments

In his complaint, Ford made several constitutional arguments some of which were independent and distinct from his civil rights claims. As to his constitutional arguments, Ford contends that section 25-15-207 allows him to file a declaratory-judgment action in circuit court without first exhausting his administrative remedies before the Commission. We disagree.

Section 25-15-207 provides that:

(a) The validity or applicability of a rule may be determined in an action for declaratory judgment if it is alleged that the rule, or its threatened application, injures or threatens to injure the plaintiff in his person, business, or property.
(b) The action may be brought in the circuit court of any county in which the plaintiff resides or does business or in the Circuit Court of Pulaski County.
(c) The agency shall be made defendant in that action.
(d) A declaratory judgment may be rendered whether or not the plaintiff has requested the agency to pass upon the validity or applicability of the rule in question.

We have held in numerous cases that a litigant must exhaust his or her administrative remedies before instituting litigation to challenge the action of an administrative agency, except where it would be futile or where there was no genuine opportunity to do so. See, e.g., McCullough v. Neal, 314 Ark. 372, 862 S.W.2d 279 (1993); Hankins v. McElroy, 313 Ark. 394, 855 S.W.2d 310 (1993); Arkansas Motor Vehicle Comm’n v. Cantrell Marine, Inc., 305 Ark. 449, 808 S.W.2d 765 (1991). We have also applied this common-law rule to declaratory-judgment actions filed under Ark. Code Ann. § 25-15-207. See Regional Care Facilities, Inc. v. Rose Care, Inc., 322 Ark. 780, 912 S.W.2d 406 (1995); McEuen Burial Assoc. v. Arkansas Burial Ass’n Bd., 298 Ark. 572, 769 S.W.2d 415 (1989).

Specifically, in Regional Care, the Arkansas Health Services Commission issued Regional Care a permit of approval to build a nursing facility. Regional Care, supra. Rose filed a notice of appeal asking the Commission to reconsider its decision. Id. While the matter was pending before the Commission, Rose filed a declaratory-judgment action in the circuit court. Id. On appeal, Rose argued that pursuant to Ark. Code Ann. § 25-25-207 (d) it was not required to exhaust its administrative remedies before seeking a declaratory order from the court. Id. We explained that:

“It seems to be now a recognized doctrine that requires administrative relief to be sought before resorting to declaratory procedure, wherever administrative relief is afforded and this requirement is not one merely requiring the initiation of administrative procedure, but the administrative procedure must be pursued to its final conclusion before resort may be had to the court for declaratory relief” . . . declaratory relief is not proper when the identical questions involved in the declaratory proceeding are already at issue between parties in a pending action.

Id. (quoting Rehab Hosp. Serv. Corp. v. Delta-Hills Health Sys. Agency, Inc., 285 Ark. 397, 687 S.W.2d 840 (1985)). Because Rose filed the declaratory-judgment action before the Commission held its hearing on Rose’s motion for reconsideration, we held that Rose failed to exhaust its administrative remedies. Id.

As in Regional Care, the Commission exercised jurisdiction over the matter by notifying Ford of its intention to revoke his hunting and fishing licenses, and Ford requested an administrative hearing. Hence, it is clear that Ford was not entitled to file a declaratory-judgment action under Ark. Code Ann. § 25-15-207 before he exhausted his administrative remedies before the Commission. Instead of filing a declaratory-judgment action, Ford should have raised his constitutional arguments before the Commission, and then appealed the Commission’s final ruling to the circuit court pursuant to Ark. Code Ann. § 25-15-212 (Repl. 1996).

B. Federal and State Civil Rights Acts

As mentioned previously, in addition to his constitutional arguments, Ford also claimed that the Commission had violated his civil rights. Thus, we must now decide whether a litigant must exhaust his or her administrative remedies before filing a civil rights action under either the Arkansas Civil Rights Act of 1993, Ark. Code Ann. §§ 16-123-101 to 108 (Supp. 1997) or the Federal Civil Rights Act, 42 U.S.C. § 1983. We have never previously addressed this issue. However, section 16-123-105(c) of the Arkansas Civil Rights Act provides that:

When construing this section, a court may look for guidance to state and federal decisions interpreting the federal Civil Rights Act of 1871, as amended and codified in 42 U.S.C. § 1983, as in effect on January 1, 1993, which decisions and act shall have persuasive authority only.

Thus, we must look to the Federal Civil Rights Act and the cases interpreting it in order to find a resolution to this important issue of first impression.

The United States Supreme Court has held that a litigant is not required to exhaust his or her administrative remedies before filing a civil rights action in federal courts. Patsy v. Florida Bd. of Regents, 457 U.S. 496 (1982); McNeese v. Board of Educ., 373 U.S. 668 (1963). In Felder v. Casey, 487 U.S. 131 (1988), the United States Supreme Court extended this holding to civil rights actions that are filed in state courts. However, all three cases are distinguishable from the facts at hand because in those cases the state actor had already deprived the petitioner of his or her civil rights at the time that the lawsuit was filed. See Felder, supra (claim that police officers had beaten and arrested the petitioner); Patsy, supra (claim that Florida International University had denied the petitioner employment due to her race and gender); McNeese, supra (claim that the Illinois school district had failed to desegregate the public schools).

In the case before us today, it is uncontested that the Commission has not yet suspended or “taken” Ford’s hunting and fishing licenses. In fact, the Commission agreed to hold the suspension “in abeyance” pending the outcome of Ford’s action in circuit court. Simply put, the Commission has not yet taken any final action that would arguably amount to a civil rights violation.

Similar to this case, in Williamson Planning Commission v. Hamilton Bank, 473 U.S. 172 (1986), the respondent filed a civil rights claim under 42 U.S.C. § 1983 in which it alleged that the Williamson County (Tennessee) Regional Planning Commission had unconstitutionally “taken” its property. On appeal, the United States Supreme Court held that the case was not yet ripe because the commission had not yet taken any final action. Id. Particularly applicable to the case at hand, the Court further explained in Williamson that:

The question whether administrative remedies must be exhausted is conceptually distinct, however, from the question whether an administrative action must be final before it is judicially reviewable. See FTC v. Standard Oil Co., 449 U.S. 232, 243 (1980); Bethlehem Steel Corp. v. EPA, 669 F.2d 903, 908 (CA3 1982). See generally 13A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3532.6 (1984). While the policies underlying the two concepts often overlap, the finality requirement is concerned with whether the initial decision maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury; the exhaustion requirement generally refers to administrative and judicial procedures by which an injured party may seek review of an adverse decision and obtain a remedy if the decision is found to be unlawful or otherwise inappropriate. Patsy concerned the latter, not the former.

Id.

As in Williamson, the Commission has not yet taken any final action that could arguably amount to a deprivation of Ford’s civil rights. Thus, Ford’s claims under either the Arkansas Civil Rights Act or the Federal Civil Rights Act are not yet ripe for judicial review. Accordingly, we affirm the trial court’s order of dismissal.

III. Venue

Finally, the Commission argues that we should affirm the court’s order of dismissal because venue was improper in the Grant County Circuit Court. Yet, the Commission admits that the trial court did not render a ruling on the venue issue because it was moot. As we have said on numerous occasions, the failure to obtain a ruling below bars review of the issue on appeal. See, e.g., Jackson v. State, 334 Ark. 406, 976 S.W.2d 370 (1998); Higginbotham v. Junction City Sch. Dist., 332 Ark. 556, 966 S.W.2d 877 (1998). Accordingly, we refuse to address the venue issue at this time.

Affirmed.


author: Per Curiam.

text:
    Patricia Louise FINCH v. STATE of Arkansas
    CR 97-306
    984 S.W.2d 360
    Supreme Court of Arkansas
    Opinion delivered November 19, 1998

      Clark Law Firm, by: David S. Clinger, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
   Per Curiam.

The appellant, Patricia Louise Finch, pleaded guilty to five counts of delivery of a controlled substance and one count of theft of property. She was sentenced to thirty years in the Arkansas Department of Correction, with five years suspended. This appeal is from the denial of her petition for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37. We reverse and remand the case for a new hearing.

After her arrest in 1995, Finch was charged with four counts of delivery of a controlled substance and one count of theft. Finch was originally represented by the public defender, who conveyed to her the State’s offer of twenty years in exchange for a plea of guilty. According to her testimony at the postconviction hearing, Finch thought she could obtain a more favorable offer through retained counsel. Consequently, she dismissed the public defender and retained the services of Bruce Bennett.

Finch was released on bond as the plea negotiations continued. During that time, she was arrested and charged with the fifth delivery of a controlled substance offense, she left in violation of the terms of her bond, and she tested positive for drug use. The terms of the State’s plea offer subsequently changed from twenty to thirty years, and Mr. Bennett was thereafter only able to negotiate a suspension of five years of the thirty-year sentence. Ms. Finch accepted the offer on the day her case was set for trial.

In her petition for postconviction relief, Finch alleged that her guilty plea was not voluntary because she did not receive effective assistance of counsel prior to entering her guilty plea. She alleged that she did not learn about the State’s final plea offer until the day her case was set for trial, and that her attorney, at that time, was unprepared to go to trial if she decided to reject the plea arrangement. Consequently, Finch claimed that her attorney coerced her into accepting an excessive sentence through the plea arrangement.

In addition to her petition for relief pursuant to Rule 37, Finch also petitioned for a reduction of her sentence. In that petition, she alleged that her attorney did not bring mitigating circumstances to the prosecutor’s attention as he negotiated for a plea offer. Finch also claimed that, in comparison to other defendants who were charged with the same offenses, her sentence was excessive.

The Circuit Court entered written findings of fact and conclusions of law that denied relief on all of Finch’s claims. Finch now appeals that order and contends that the Circuit Court erred in denying relief on her ineffective-assistance-of-counsel claim, and that the Circuit Court erred when it denied her motion, pursuant to Rule 615 of the Arkansas Rules of Evidence, to have her trial counsel excluded from the courtroom during her testimony in the postconviction hearing. We conclude that the Circuit Court erred when it denied Finch’s Rule 615 motion, and we reverse and remand the case for a new hearing.

In chambers, prior to the start of the postconviction hearing, Finch’s postconviction counsel moved to exclude Bruce Bennett, Finch’s counsel at the time she entered her guilty plea, from the courtroom during her testimony. The Circuit Court denied the motion on the basis that Mr. Bennett had a right to hear the allegations against him.

Finch now argues that the Circuit Court’s ruling was reversible error. To support her argument, she relies on King v. State, 322 Ark. 51, 907 S.W.2d 127 (1995). In that case, King attempted to invoke Rule 615 in order to exclude his trial counsel from the courtroom while other testimony was presented during the hearing on his petition for postconviction relief. The trial court denied the motion. We concluded that the language of Rule 615 is mandatory concerning the exclusion of witnesses, and that King’s trial attorney did not fall within any exception to the rule. We held, therefore, that the trial court committed reversible error when it did not exclude King’s attorney from the courtroom.

During her testimony at the postconviction hearing, Finch acknowledged her guilt for the offenses and that her only interest in retaining Mr. Bennett was to obtain a better plea offer. Finch also admitted that she engaged in behavior after the conveyance of the first offer that may have jeopardized her chances for a lighter sentence.

She also insisted, however, that her understanding of her arrangement with Bennett was that he would try to obtain a lower plea offer, and if that was not possible, that her case would go to trial. According to Finch, she had that understanding despite the warnings by both of her attorneys that the State had a strong case to present against her during a trial. She stated that she decided to take the plea offer because, on the day of her trial, she did not feel that her attorney was prepared with a defense. In contrast to Finch’s testimony, Mr. Bennett testified that if necessary, he could have gone to trial.

In this context, we understand Finch’s ineffective-assistance-of-counsel claim to be that but for her attorney’s alleged failure to prepare a defense, she would have insisted on going to trial. As such, evidence concerning the extent of Mr. Bennett’s preparation for trial is crucial to the resolution of Finch’s claim.

Clearly, the Circuit Court could not have denied Finch’s ineffective-assistance-of-counsel claim without resolving the conflict that existed between the testimony of Finch and her attorney. The Circuit Court’s denial of the claim indicates that Mr. Bennett’s testimony was judged more credible.

In King v. State, we observed that it was evident that King was prejudiced by the trial court’s failure to exclude his trial counsel from the courtroom because the denial of his petition for postconviction relief was based upon the conflicting testimony presented by his attorney. In this case, Finch was similarly prejudiced. Therefore, we must reverse and remand the case for a new hearing.

We are mindful of the State’s argument that remanding this case for a new hearing would not serve any useful purpose. According to the State, the benefit of a second hearing, after the offending witness has already heard the testimony at the first hearing, would be negligible. In other words, remanding the case for a new hearing cannot “unring the bell.”

While it may be true that Mr. Bennett’s testimony in the hearing after remand may not change from his testimony during the first hearing, we do not believe that such a possibility renders our decision devoid of any useful purpose. Rather, we have recognized that Rule 615 is invaluable in exposing the inconsistencies in the testimonies of different witnesses and in preventing the possibility of one witness’s shaping his or her testimony to match that given by other witnesses at trial. King v. State, 322 Ark. at 55. As such, the reliability of the outcome of postconviction proceedings depends upon uniform enforcement of the Rule, especially in cases where, as here, the determination of the petitioner’s claim depends upon the resolution of conflicting testimony between witnesses for the petitioner and the attorney whose performance is questioned.

Reversed and remanded.

Corbin, J., not participating.

Glaze, J., dissents for the same reason set forth in his dissent in King v. State 322 Ark. 51, 907 S.W.2d 127 (1995).


text:
    William Avon NEAL v. STATE of Arkansas
    CR 98-1318
    979 S.W.2d 93
    Supreme Court of Arkansas
    Opinion delivered November 19, 1998

      John L. Kearny, for appellant.
    No response.
   Per Curiam.

Appellant, William Avon Neal, by his attorney, John L. Kearney, has filed a motion for belated appeal. 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, 295 Ark. 964 (1979) (per curiam).

Because appellant’s attorney admitted fault and his motion was proper under Ark. R. App. P. — Crim. 2, the motion to file belated appeal was granted, and the per curiam was treated as a motion for rule on the clerk.

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:
    Cecil POYNER v. ARKANSAS CONTRACTORS LICENSING BOARD
    98-952
    979 S.W.2d 902
    Supreme Court of Arkansas
    Opinion delivered November 19, 1998

      Lyon, Emerson & Cone, for appellant.
    No response.
   Per Curiam.

On August 5, 1998, Cecil Poyner, by his attorneys, Lyon, Emerson & Cone, filed a petition for writ of certiorari to complete the record. By per curiam dated September 17, 1998, appellant’s petition for writ of certiorari was granted. The writ of certiorari was issued to the Clerk and Court Reporter of the Pulaski County Circuit Court, Third Division, returnable on October 17, 1998. A copy of the per curiam was served on Lene Collins-Sontag by the Arkansas State Police on October 27, 1998. Leñé Collins-Sontag was directed to respond to the Arkansas Supreme Court Clerk’s Office within seven days of the service of the per curiam, and to advise him of plans to proceed in accordance with the per curiam. She was further advised that failure to do so would result in her being ordered to appear before the Arkansas Supreme Court to show cause why she should not be held in contempt of court for failing to comply with the court’s previous order. No response has been received by the supreme court clerk.

Therefore, Leñé Collins-Sontag is ordered to appear before this court on the 10th day of December, 1998, at 9:00 a.m., to show cause why she should not be held in contempt of this court for her failure to comply in a timely manner with the command of the writ of certiorari issued on September 17, 1997.

LENÉ COLLINS-SONTAG IS FURTHER NOTIFIED THAT HER FAILURE TO APPEAR ON DECEMBER 10, 1998, COULD RESULT IN THE ISSUANCE OF A BENCH WARRANT FOR HER ARREST WITH DIRECTIONS TO THE APPROPRIATE LAW ENFORCEMENT AUTHORITY TO ARRANGE FOR HER DELIVERY TO THIS COURT SO A SHOW-CAUSE HEARING CAN BE CONDUCTED AT THE EARLIEST POSSIBLE DATE.


text:
    Bobby ROBERTS, Individually and on Behalf of Arkansans to Protect Police, Libraries, Education & Services (Apples) v. Sharon PRIEST, Secretary of State; JOHN HOYLE, Individually, and on Behalf of Arkansas Taypayers’ Rights Association, and as Representative of the Class of 98,896 Arkansans who Petitioned for Proposed Constitutional Amendment 4 of 1998, Individually, and Further as Representative of the Class of All Registered Voters of the State of Arkansas, Intervenors
    98-1052
    979 S.W.2d 93
    Supreme Court of Arkansas
    Opinion delivered November 19, 1998

      Friday, Eldredge & Clark, by: Elizabeth Robben Murray, Robert S. Shafer, and Ellen M. Owens, for petitioner.

      Winston Bryant, Att’y Gen., by: Tim Humphries, Ass’t Att’y Gen., for respondent.

      Oscar Stilley, for intervenors.
   Per Curiam.

Complainant requests costs as the prevaüing party in the amount of $5,732.88. Pursuant to Ark. Sup. Ct. R. 6-7, the court awards complainant $210.00 in brief costs. Transcript costs have already been considered and awarded as set out in our earlier per curiam delivered on November 11, 1998. See Scott v. Priest, 326 Ark. 69, 928 S.W.2d 537 (1996). Each party will be responsible for expenses incurred but not awarded as costs in our two per curiam orders.


text:
    Ronald G. THOMAS v. STATE of Arkansas
    CR 98-1084
    983 S.W.2d 122
    Supreme Court of Arkansas
    Opinion delivered November 19, 1998

      Appellant, for appellant.
    No response.
   Per Curiam.

On July 26, 1996, judgment was entered reflecting that Ronald G. Thomas had entered a plea of guilty to rape, sexual abuse in the first degree, and sexual solicitation. An aggregate sentence of 264 months’ imprisonment was imposed.

Thomas subsequently filed in the trial court a timely petition pursuant to Criminal Procedure Rule 37 challenging the judgment. An evidentiary hearing was held at which petitioner Thomas was represented by an appointed attorney, Thomas E. Smith. The petition was denied in an order entered January 16, 1998.

On February 2, 1998, at 11:52 a.m., attorney Smith filed a timely notice of appeal from the order. On that same day at 2:32 p.m., an order was entered relieving Smith as counsel.

The record on appeal was not tendered to this court until June 9, 1998, which was 127 days after the notice of appeal was filed. Because Ark. R. App. P. 5(a) requires a record to be tendered within ninety days of the date of the notice of appeal, our clerk declined to lodge it. Now before us is Ronald Thomas’s pro se motion for rule on clerk seeking to file the record belatedly.

The initial question presented by the pro se motion is whether Thomas Smith, the attorney who filed the notice of appeal, was obligated to represent the petitioner on appeal. That is, was the order relieving Smith that was entered after the notice of appeal but on the same day effective? We conclude that the order was not effective.

Rule 16 of the Rules of Appellate Procedure — Criminal provides:

Trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause. After the notice of appeal of a judgment of conviction has been filed, the Supreme Court shall have exclusive jurisdiction to relieve counsel and appoint new counsel. (Emphasis added.)

We have held that Rule 16 applies to postconviction appeals as well as direct appeals from judgments of conviction. Miller v. State, 299 Ark. 548, 775 S.W.2d 79 (1989).

Because Smith was not relieved before he filed the notice of appeal, Smith was obliged to perfect the appeal of the adverse ruling. Once the notice of appeal was filed, any motion to be relieved as counsel should have been filed in this court which has sole jurisdiction pursuant to Rule 16 to entertain such motions. See Parker v. State, 329 Ark. 363, 952 S.W.2d 133 (1997). As Smith was not relieved by the trial court before the notice of appeal was filed, he remains attorney-of-record for the appeal.

The pro se motion for rule on clerk is granted. The Clerk is directed to lodge the tendered record and set a briefing schedule.

Motion granted.

A copy of this opinion shall be forwarded to the Committee on Professional Conduct.


text:
    Bruce Earl WARD v. STATE of Arkansas
    CR 98-657
    979 S.W.2d 902
    Supreme Court of Arkansas
    Opinion delivered November 19, 1998

      Deborah R. Sailings, for appellant.
    No response.
   Per Curiam.

Appellant, Bruce Earl Ward, by his attorney, Deborah R. Sailings, has filed a motion to continue the time to complete the record.

On August 30, 1998, appellant filed a motion to complete the record and for stay of brief time until the record is complete, and requested that a writ of certiorari be directed to the Pulaski County Circuit Clerk, directing the filing of a complete record in this case. The motion was granted on September 10, 1998, and a writ of certiorari issued to the circuit clerk and court reporter, returnable October 10, 1998. A copy of the per curiam was served on Leñé Collins-Sontag by the Arkansas State Police on October 27, 1998. Leñé Collins-Sontag was directed to respond to the Arkansas Supreme Court Clerk’s Office within seven days of the service of the per curiam, and to advise him of plans to proceed in accordance with the per curiam. She was further advised that failure to do so would result in her being ordered to appear before the Arkansas Supreme Court to show cause why she should not be held in contempt of court for fading to comply with the court’s previous orders. No response has been received by the supreme court clerk.

We find that the court reporter’s fadure to comply with the writ of certiorari issued on September 10, 1998, is good cause to grant appedant’s motion to continue the time to complete the record. The motion is, therefore, granted untd such time as the court reporter complies with the writ of certiorari issued on September 10, 1998.

Therefore, Leñé Collins-Sontag is ordered to appear before this court on the 10th day of December, 1998, at 9:00 a.m., to show cause why she should not be held in contempt of this court for her fadure to comply in a timely manner with the command of the writ of certiorari issued on September 10, 1998.

LENÉ COLLINS-SONTAG IS FURTHER NOTIFIED THAT HER FAILURE TO APPEAR ON DECEMBER 10, 1998, COULD RESULT IN THE ISSUANCE OF A BENCH WARRANT FOR HER ARREST WITH DIRECTIONS TO THE APPROPRIATE LAW ENFORCEMENT AUTHORITY TO ARRANGE FOR HER DELIVERY TO THIS COURT SO A SHOW CAUSE HEARING CAN BE CONDUCTED AT THE EARLIEST POSSIBLE DATE.