author: Tom Glaze, Justice.

text:
    Robert WHITE, et al. v. Sharon PRIEST, et al.

    02-284
    73 S.W.3d 572
    Supreme Court of Arkansas
    Opinion delivered April 10, 2002

      Oscar Stilley, for appellant.
    No response.

       White cites Ark. Const. amend. 9, § 2 for the proposition that the amendment prohibits supreme court justices from receiving compensation greater than that authorized at the beginning of the term to which the judge was elected. He then refers to Amendment 43 which he says permits the increase of salaries of justices of the supreme court during the term for which the justice has been elected. White concludes that, if Kurnis is the law, then Amendment 43 is plainly ánd facially unconstitutional as violating or conflicting with an existing substantive provision of the Arkansas Constitution. Of course, Amendments 9 and 43 are not in issue here, but we would merely observe at this point that the Publishers Notes to Amendment 43 suggest Amendment 43 probably supersedes Amendment 9.

   Tom Glaze, Justice.

On March 26, 2002, petitioner, Robert White, filed a petition captioned "An Original Action for Immediate Review and Such Other Relief to Which He May be Entitled under Amendment 7 to the Arkansas Constitution and its Implementing Act 877 of 1999 (codified at Ark. Code Ann. §§ 7-9-501 -507 (Repl. 2000)) and under Art. 16, § 13 of the Arkansas Constitution.” In his petition, White names as respondents: all Supreme Court Justices, individually and in his or her official capacity; the Secretary of State, the Attorney General, and the State Treasurer, in their official capacities; the Department of Finance and Administration and Revenue Commissioners, in their official capacities; and named members of the State Board of Election Commissioners. In his petition, White sets out a number of counts which we consider in the order he presents them.

In his Count I, White requests this court to immediately review the Secretary of State’s Declaration issued on February 27, 2002, whereby, after consulting with the Attorney General, she concluded the popular name and ballot title contained in an initiative petition submitted by White were fair and accurate and facially valid. That initiative petition contains a proposed amendment to cap the salaries and regulate benefits of all state officers and employees who are paid in whole or in part from state or local taxes and fees, fines, penalties, tuition, or rents of state and local property. The salaries would be limited to $100,000 and the fringe benefits could not exceed the amount of 25% of the “direct salary.” Before the Secretary of State issued the Declaration, the Attorney General had delivered an opinion, approving the popular name and ballot title of White’s proposed amendment. The Declaration and Attorney General’s opinion are marked Exhibits 1 and 2, respectively. Significantly, the Attorney General added a caveat in his opinion concerning particular hazards attendant to lengthy and complex proposals, such as the one submitted. In doing so,the Attorney General pointed out that, with any proposed amendment of considerable length and complexity such as White’s, the sponsor runs the risk of a challenge and a finding by the court that the ballot is unacceptable, either because it is too “complex, detailed, and lengthy,” or because it has “serious omissions.”

Pursuant to Ark. Code Ann. § 7-9-506, White seeks review of the Secretary of State’s Declaration and requests a declaratory judgment, finding White’s ballot title and popular name sufficient. We grant review and direct this court’s clerk to establish an expedited and appropriate briefing schedule for all parties, including amici curiae briefs, if any, permitted under Ark. Sup. Ct. R. 4-6. See also Stilley v. Priest, 341 Ark. 329, 16 S.W.3d 251 (2000).

Before leaving this count raised by White, we note his “motion for recusal” filed on March 28, 2002, wherein he requests the recusal of all supreme court justices. White asserts that, because of his proposed amendment limiting salaries and other benefits of public servants, including those of the justices, there is an appearance of bias on the part of the justices since they have a. financial interest in this matter that requires our recusal. White asks us to direct the Governor to appoint disinterested judges who have no interest in higher taxes or high salaries for public servants, and who are not employed by the State or local government. White further claims each justice is a defendant from whom money damages are sought.

White’s claim is rather unclear, but he seems to be suggesting that the justices could be liable for illegal exactions in the nature of salaries received that exceed caps or limitations under the amendment he proposes. In this respect, he generally requests injunctive relief as well. •

White’s claim is not only premature, it is also a claim for illegal exactions under Ark. Const. art. 16, § 13, and can only be commenced in a trial court; such a suit cannot be commenced in the appellate courts. See Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988). White offers no brief, citation of authority, or argument to support his underlying argument for the justices’ recusal, and we are unaware of any. Thus, this court is without original jurisdiction to hear any of the alleged claims for illegal exactions, and we dismiss Count 1.

Even if this court had original jurisdiction to initially consider a claim based on illegal exactions, the justices still would be empowered and duty bound to consider and decide these issues White strives to raise. Under Ark. Code of Judicial Conduct Canon 3(E)(1), while a judge must disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, the “Rule of Necessity” may override the rule of disqualification. For example, a judge might be required to participate injudicial review of a judicial salary statute. See Commentary to Canon 3(E)(1); see also Richard E. Flamm, Judicial Disqualification: Recusal and Disqualification of Judges § 20.2.2, at 591-592 (1996) (the Rule of Necessity is most likely to be invoked in situations where the filing of a suit whose resolution will directly affect the pecuniary well-being of judges as a whole, such as a suit seeking to increase judicial pay or retirement benefits); and Jeffery M. Shaman et al., Judicial Conduct and Ethics § 4.03, at 111-112 (3d ed. 2000).

In addition, we point out that Ark. Const. art. 7, § 9, in pertinent part, provides that when all or any of the justices are disqualified, the Governor must immediately commission the requisite number of men (or women) learned in the law to sit in the trial or determination of the supreme court’s cases. In other words, this court does not direct who the Governor commissions to perform his duties as a justice, like White suggests in his motion. More important, it is significant to mention that in the review White seeks here, the Governor would have the same or similar conflict White asserts the justices have, since there are countless employees in the executive branch of government that are paid salaries exceeding the $100,000 cap established under White’s proposal. See Acts 4, 234, 1238, 1612, 1636, 1638, 1668, 1669 of 2001. Here, each justice, individually, rejects White’s motion to recuse under the “rule of necessity.”

In his Count 2, White requests us to review the Secretary of State’s Declaration issued on February 27, 2002, whereby, after consulting with the Attorney General, she declared the popular name and ballot title on White’s Arkansas Prison System Amendment proposal to be fair and accurate and facially valid. As was the case in the “salary cap” proposal, the Attorney General’s opinion issued on January 20, 2002, added a caveat that particular hazards exist because of the length and complexity of White’s ballot title. We grant review, and as with the “salary cap” proposal, we direct the clerk to establish an appropriate briefing schedule for all parties, including amici curiae briefs authorized, if any, under Ark. Sup. Ct. R. 4-6.

In Count 3, White’s petition asks this court to enroll as law the proposed Used Car Tax of 2000 which this court, in Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000), found insufficient because of the proposed amendment’s misleading popular name and ballot title and because it conflicted with the Arkansas and United States Constitutions. As a part of our holding in Kurrus, we ordered that the Used Car Tax Amendment of 2000 not be placed on that year’s General Election ballot, or alternatively, that any votes cast on that amendment not be counted.

Here, White merely raises the same arguments we thoroughly considered in Kurrus. Offering no new argument or citations, and totally ignoring the holding in Kurrus, White states the following:

The [Kurris] Supreme Court based its order denying the validity of the amendment upon two flagrantly unlawful considerations:
(1) That the ballot title was defective even though the ballot title plainly and certainly would have been sufficient if it had been approved by the General Assembly for an amendment proposed by same and
(2) that the amendment violated a substantive provision of the Constitution of Arkansas. The court also claimed that the petition violated the United States Constitution, but this claim was so clearly baseless that the court could not cite a single federal case of any kind in support of its contention. (Our emphasis.)

White further reflects his disagreement with the Kurrus decision saying, “The Arkansas Supreme Court [in Kurrus] was wholly without jurisdiction to declare a ballot title defective based upon its own created ‘law’ which created an extremely harsh test for citizens’ initiatives, while using a test for measures referred by the Arkansas General Assembly that is so lenient that nothing has ever failed the test.” He adds (again without new argument) that “any attempt to strike an initiative petition upon a claimed possible illegality of the substantive provisions of the initiative before the vote is had, canvassed, and certified, is a nullity.” (Our emphasis.)

White’s present counsel, Oscar Stilley, is well aware that this court dealt with these two foregoing issues in Kurrus, and that Stilley also continued his argument in a petition for rehearing in that case. His arguments were rejected on both occasions. We also point out that, even before Kurrus, this court in Thiel v. Priest, 342 Ark. 292, 28 S.W.3d 296 (2000), stated very clearly the rationale behind why initiatives by the General Assembly and by the voters are constitutionally different and permissible. See also Kurrus, at 440.

It is not this court’s duty to review issues it has already considered or decided when no good reason has been shown to do so. We are, once again, troubled by Mr. Stilley’s unwillingness to recognize precedent and his attempt to breathe life into decisions he previously lost. See Stilley v. Hubbs, 344 Ark. 1, 40 S.W.3d 209 (2001). We are always ready to reconsider the court’s prior precedents if proper argument demonstrates that reconsideration and review are needed. See Shannon v. Wilson, 329 Ark. 143, 151, 947 S.W.2d 349, 353 (1997). That is not the case at hand. Thus, as provided under Ark. R. App. P. — Civ. 11, we are compelled to order Mr. Stilley to show cause in writing why a sanction should not be imposed against him. Such writing shall be no later than seven days after the date of this opinion. The Attorney General and other state or constitutional parties Mr. Stilley named in this matter may have four days to respond from the date Stilley files his writing. Id. With regard to the bare and untimely allegations White attempts to assert in Count 3 of his petition, we dismiss that count in toto because those allegations, as explained above, have been previously decided by this court.

Before leaving the Count 3 matter, we note White’s mention that this court is not at liberty to fault the work (opinion) of the Attorney General after the Attorney General had approved the proper name and ballot title of the Used Car Tax of 2000, but White cites no authority to support his contention. The authority, of course, is wholly contrary to such an assertion. See Arkansas Prof’l Bail Bondsman Lic. Bd. v. Oudin, 348 Ark. 48, 69 S.W.3d 865; Bailey v. McCuen, 318 Ark. 227, 884 S.W.2d 938 (1994); City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990).

Also, we note White’s reference in Count 3 to his theory that, since the Used Car Tax amendment should have been enrolled by the Secretary of State in 2000, the State Finance & Administration (contrary to the text of the 2000 proposal) collected illegal taxes. White claims he and other taxpayers should be entitled to refunds from these illegal exactions. ■ Again, even if Count 3 stated a viable cause of action, that alleged illegal exaction claim would have been required to be commenced in trial court under Ark. Const. art. 16, § 13. See Franz, 296 Ark. 181, 754 S.W.2d 839. This court has no original jurisdiction to decide the matter, and we dismiss it.

In White’s Count 4, he again questions the Kurrus decision, but limits this part of his argument to say that this court erred in invalidating the Used Car Tax of 2000 on the basis of constitutional provisions of the State and U. S. Constitutions which prohibit the impairment of contracts. Of course, this court indeed held that the proposed amendment violated such constitutional prohibitions, even though three justices did register different views on this issue. White expands his allegations in Count 3 to point out that, if his theory is correct that Ark. Const, amend. 43 cannot supersede provisions of Ark. Const, amend. 9, then any compensation the supreme court justices here received that exceeded their starting salaries would constitute illegal exactions. In turn, White uses this theory as the basis to ask all justices to recuse, alleging they have a pecuniary interest involved. As we have already stated, any illegal exaction action must be commenced in trial court, and we have no original jurisdiction over this matter. Therefore, we dismiss it. But as we have explained above, the “rule of necessity” compels that we not recuse in this case even if this court had original jurisdiction to decide this matter. See Commentary to Canon 3(E)(1).

Next, White requests in his Count 5 that “this court enjoin and prohibit all defendants from the use of any standard more restrictive that the ‘manifest fraud’ standard used for General Assembly ballot titles.” Once again, this allegation and prayer for relief was considered in the Thiel and Kunus cases. Thus, we dismiss this claim for the reasons already discussed above.

In Count 6, White’s allegations are particularly confusing, but he refers to an Attorney General Opinion No. 2001-391, marked “exhibit 6,” which, among other things, sets out the popular name and ballot title of a proposed amendment that would abolish all ad valorem taxes on personal property. The Attorney General’s opinion, dated January 11, 2002, rejected the popular name and ballot title due to ambiguities in the “text” of the proposed measure. The Attorney General instructed Mr. Stilley to “redesign” the proposed measure and ballot title and resubmit it. Apparently, Stilley did not do so. Also, it appears the proposal with ballot and popular name was not sent to the Secretary of State for Declaration, as is provided under Act 877 of 1999. See Ark. Const. amend. 7, Ark. Code Ann. §§ 7-9-505 and 7-9-107(d) and (e) (B)(2) (If the Attorney General or Secretary of State refuse to act or if the sponsors feel aggrieved by his acts, in such premises, the sponsors may, by petition, apply to the supreme court for proper relief.). Because the Secretary of State has not determined the sufficiency of this ad valorem tax proposal, this court has no jurisdiction to consider this matter and, therefore, we dismiss this count in White’s petition.

In Count 7, White submits for review another proposed measure which is an amendment to abolish taxes on used goods. As was the situation with the ad valorem tax prohibition in Count 6 above, the Attorney General rejected Mr. Stilley’s request to resubmit his proposal, which the Attorney General rejected as ambiguous. The Secretary of State has not made her determination as to sufficiency or issued a Declaration. We dismiss this count, since we do not have jurisdiction to review it for the reasons stated in dismissing Count 6.

In conclusion, White submits a Count 10 (sic) which lists nine paragraphs under the caption, “Petition Sponsors Have the Right to Cure, Including Cure of the Language of the Ballot Title and Popular Name.” Six of the paragraphs include what only can be described as general legal principles that White claims to be true, without providing the court with citations of authority or argument. For example, after White proceeds by saying he incorporates all general allegations in the other counts, he states the following:

100. The legitimate interest of the state in the regulation of speech in the. form of ballot titles, namely the prevention of fraud however denominated, is not advanced by the refusal to permit improvements, corrections, or changes to ballot titles, popular names, or the text of the measure, as to matters which do not affect the general meaning and purpose of the amendment, after suit is filed by a challenger.
101. To the extent that the state has an interest extending beyond fraud prevention, to the provision of greater detail, accuracy, completeness, or concision to the voters, that interest is best protected by a modification of the language of the ballot title, popular name, or text of the measure, as to matters that do not materially alter the purpose and effect of the measure, rather than the striking of the ballot title and popular name. This would be the alternative least restrictive of free speech rights and thus meeting constitutional muster for restrictions on core political speech.
102. Ballot titles and popular names are core political speech.
103. The text of citizen initiated measures is core political speech.
104. The ballot titles and popular names of all statewide initiatives are approved by the Arkansas Attorney General. In some cases the ballot title is a ballot title substituted by the Attorney General. The Arkansas Supreme Court is not at liberty to fault the work of the Attorney General, a member of the Executive Branch, and therefore to punish the sponsor of any amendment or the electorate, by removing the amendment on the basis of a supposed error by the Attorney General.
105. Alternatively, the Attorney General, in issuing an opinion, becomes a guarantor of the ballot title and popular name, and thus any subsequent striking of the amendment renders the officers of the State of Arkansas liable for any damages to the sponsors or the taxpayers for the failure to properly certify the rectitude of the ballot title and the matter which it describes, thus rendering the officers of the state, and especially the Treasurer of the State, Commissioner of Revenues, and Director of the Department of Finance and Adminsitration liable to repay all damages suffered by the sponsor or by taxpayers as a result of the defective ballot title opinion.

At the end of his Count 10, White demands an oral argument.

After reading the foregoing list, we can only conclude no further consideration and reflection is needed on this court’s part other than the issues we already decided in Counts 1 through 7, except to say this court will later consider granting an oral argument when a timely request is made under Ark. Sup. Ct. R. 5-1(a), and this court decides the request meets the requirements of that rule.

In sum, this court grants review of White’s Counts 1 and 2, and dismisses his Counts 3, 4, 5, 6, and 7. An expedited briefing schedule shall be made regarding the counts granted and on review. The court issues a show-cause order for White’s counsel, Oscar Stilley, to show in writing why a sanction under Rule 11 should not be imposed against him.

       White sets out Counts 1 through 7, omits stating Counts 8 and 9, but continues with Count 10, which apparently should be numbered Count 8.


source: Caselaw Access Project

author: Donald L. Corbin, Justice. Annabelle Clinton Imber, Justice,

license: Public Domain

text:
    Ron and Ramona DAVENPORT, as the Administrators of the Estate of Linda Kay Moore, Deceased, or, in the Alternative, Ron and Ramona Davenport, Individually and as the Heirs at Law of Linda Kay Moore, Deceased, on Behalf of Themselves and All Other Heirs at Law of the Deceased, or All Who are Entitled to Legal Redress for the Death of Linda Kay Moore, Deceased v. Tyrone LEE, M.D.; Conway Regional Medical Center; Craig Cummins, M.D.; and James Throneberry, M.D.
    01-456
    72 S.W.3d 85
    Supreme Court of Arkansas
    Opinion delivered April 11, 2002

      Charles Phillip Boyd, Jr., and Christopher D. Anderson, for appellants.

      Wright, Lindsey & Jennings LLP, by: Patricia Sievers Harris and Jane Weisenfels Duke; Anderson, Murphy & Hopkins, LLP, by: Over-ton S. Anderson and Scott D. Provencher; and Armstrong Allen, PLLC, by: Ken Cook and Jeffrey L. Singleton, for appellees.
   Donald L. Corbin, Justice.

This appeal is before us on a petition for review from a decision by the Arkansas Court of Appeals concluding that a non-attorney personal representative is not authorized to file a pro se complaint in a wrongful-death action, but that such a defect did not render the complaint a nullity. See Davenport v. Lee, 73 Ark. App. 247, 40 S.W.3d 346 (2001). We granted the petition, pursuant to Ark. Sup. Ct. R. 1-2 (e) (iii). We affirm the trial court’s order.

This appeal stems from events surrounding the death of Linda Kay Moore. On February 11, 1997, Moore went to the emergency room at Conway Regional Medical Center (“CRMC”) seeking treatment for pneumonia. She was admitted to the hospital and subsequently scheduled for surgery. On February 15, Moore was intubated by hospital staff in preparation for her surgery, but died minutes after the intubation. Surviving Moore were her sister, Appellant Ramona Davenport, and three adult children.

Following the death of Moore, the Faulkner County Probate Court appointed Ramona and her husband, Appellant Ron Davenport, as administrators of Moore’s estate. On February 10, 1999, Appellants filed a pro se complaint for wrongful death alleging negligence on the part of Appellees Dr. Tyrone Lee, Conway Regional Medical Center, Dr. Craig Cummins, Dr. Greg Lewis, and Dr. James Throneberry. Thereafter, on May 28, 1999, the Boyd Law Firm filed an entry of appearance, as well as a pleading entitled “Addendum to Complaint.” This addendum purported to change the case styling to reflect the addition of Dr. Throneberry’s first name. It was the first pleading signed by an attorney in this action.

Dr. Cummins filed an answer denying Appellants’ allegations and asserting that the complaint should be dismissed pursuant to Ark. R. Civ. P. 12(b)(6) and because the statute of limitations had run on the cause of action. Likewise, Dr. Throneberry denied all allegations and averred that the complaint should be dismissed because it was a nullity, as it had been signed by the estate’s administrators who were non-lawyers and that any further claims were time barred. Dr. Lee and CRMC initially filed answers denying Appellants’ allegations, but later filed amended answers also asserting the affirmative defense of limitations.

On June 21, 1999, Dr. Throneberry filed a motion to dismiss that was subsequently adopted by each of the other Appellees. In support of his motion, Dr. Throneberry argued that the filing of the complaint by non-lawyers resulted in a nullity, and thus, no valid complaint was filed prior to the expiration of the two-year statute of limitations under the Arkansas Medical Malpractice Act. Appellants responded that as administrators they were authorized to file a complaint on behalf of Moore’s estate. Moreover, they argued that under Ark. R. Civ. P. 17, they were allowed to cure any defect in the original complaint through inclusion or ratification by the real party in interest.

Following a hearing on Appellees’ motions, the trial court determined that Appellants, as administrators of the estate, could not file a valid complaint for wrongful death where neither of them was an attorney. The trial court also determined that Appellants were not acting on their own behalf, but rather, as representatives of all the statutory beneficiaries. Finally, the trial court ruled that subsequent pleadings filed by attorneys could not relate back to the original complaint under the circumstances in the present case. On November 24, 1999, the trial court entered an order dismissing with prejudice Appellants’ cause of action.

At the conclusion of the hearing on November 3, 1999, Appellants requested time to file a motion for reconsideration. Several letters followed, each requesting additional time to file the motion. The motion and supporting brief were not filed, however, until November 26, 1999. Therein, Appellants argued that Appellees had not suffered any surprise or prejudice by the filing of the original complaint and that Appellants were actually represented by counsel at the time the case commenced. According to Appellants, the case commenced when the summons and complaint were served upon Appellees. On November 17, 1999, prior to the filing of the motion for reconsideration, Appellants also filed a fifth amended complaint, alleging for the first time that CRMC had fraudulently concealed part of Moore’s medical records. Appellees moved to strike the amended complaint arguing that the trial court correctly ruled that Appellants were prohibited from amending the original complaint. The trial court subsequendy entered orders granting Appellees’ motions to strike and denying Appellants’ motion for reconsideration.

Appellants filed a timely notice of appeal, alleging seven points of error. The court of appeals determined that Appellants, as administrators, were not authorized to file a complaint on behalf of the statutory beneficiaries. According to the court of appeals, however, such an irregularity amounted to an amendable defect, not a nullity. Appellees then petitioned this court for review. When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed in this court. See Regions Bank & Trust v. Stone County Skilled Nursing Facil., Inc., 345 Ark. 555, 49 S.W.3d 107 (2001); Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). Thus, we review the trial court’s judgment, not that of the court of appeals.

In reviewing a trial court’s decision on a motion to dismiss, this court must treat the facts alleged in the complaint as true and view them in a light most favorable to the plaintiff. Goff v. Harold Ives Trucking Co., Inc., 342 Ark. 143, 27 S.W.3d 387 (2000); Arkansas Tech Univ. v. Link, 341 Ark. 495, 17 S.W.3d 809 (2000). In testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and all pleadings are to be liberally construed. Id. With this standard in mind, we now turn to Appellants’ arguments on appeal.

I. No Waiver of Limitations Defense

As an initial matter, Appellants argue that the trial court erred in refusing to deny the motions to dismiss filed by Drs. Cummins and Lee and CRMC. Appellants base this argument on the contention that those parties waived their right to assert the defense of limitations when they failed to raise it in their initial responsive pleadings. We disagree.

Arkansas has long recognized the common-defense doctrine, holding that the answer of one defendant inures to the benefit of the other co-defendants. See Sutter v. Payne, 337 Ark. 330, 989 S.W.2d 887 (1999); Richardson v. Rodgers, 334 Ark. 606, 976 S.W.2d 941 (1998); Arnold Fireworks Display, Inc. v. Schmidt, 307 Ark. 316, 820 S.W.2d 444 (1991); Bruton v. Gregory, 8 Ark. 177 (1847). In determining whether the common-defense doctrine is applicable, this court focuses on whether the answer of the non-defaulting defendant states a defense that is common to both defendants, because then “a successful plea . . . operates as a discharge to all the defendants, but it is otherwise where the plea goes to the personal discharge of the party interposing it.” Richardson, 334 Ark. at 612, 976 S.W.2d at 944-45 (quoting Southland Mobile Home Corp. v. Winders, 262 Ark. 693, 694, 561 S.W.2d 280, 280-81 (1978)). In other words, the doctrine is applicable where the asserted defense would discharge all of the defendants.

Here, the affirmative defense at issue is the running of the statute of limitations. Each of the claims raised against Appellees is subject to the two-year statute of limitations set forth in the Arkansas Medical Malpractice Act. Thus, the defense of one Appellee that Appellants failed to timely file their action is common to the remaining Appellees and would serve to discharge each of them from this action. Accordingly, Dr. Throneberry’s answer inured to the benefit of the other Appellees, thus preserving their rights to assert the defense of limitations.

II. Complaint was a Nullity

We next turn to Appellants’ argument that the trial court erred in ruling that their original complaint was a nullity. According to Appellants, the absence of counsel is a procedural defect that does not interfere with the subject-matter jurisdiction of the trial court, and thus, the complaint is simply defective, not void ab initio. Appellees counter that the filing of a pro se complaint on behalf of statutory beneficiaries constituted the unauthorized practice of law, and thus, rendered the complaint a nullity. Appellees further argue that because there was no valid complaint filed prior to the expiration of the two-year limitations period, Appellants were time-barred from bringing suit against them. We agree with Appellees.

a. Commencement of the Action

Before discussing the issue of the unauthorized practice of law, we must first address some separate issues raised by Appellants that are directly related to the question of whether the pro se complaint was a nullity. First, Appellants contend that they were represented by counsel at the time this action commenced, and therefore, there is no basis for declaring the complaint a nullity. Appellants’ base this contention on the theory that an action does not commence until service of process is completed under Ark. R. Civ. P. 4(i). According to Appellants, because service was completed after counsel entered an appearance, Appellants were not acting pro se. This argument is without merit.

Appellants offer no authority in support of this argument, and in fact, acknowledge that Ark. R. Civ. P. 3 specifically provides that an action commences with the filing of a complaint with the court clerk. This court has explained that the touchstone for a limitations defense is when the cause of action was commenced. Sublett v. Hipps, 330 Ark. 58, 952 S.W.2d 140 (1997); Green v. Wiggins, 304 Ark. 484, 803 S.W.2d 536 (1991). While it is true that the effectiveness of the commencement of an action is dependent on the plaintiff completing service of process as provided for in Rule 4(i), for purposes of tolling the statute of limitations, this court looks to the time that the complaint was filed. Id. Therefore, the filing of the complaint commenced this action, and the fact that Appellants were represented by counsel at the time service was completed does not toll the statute of limitations. Instead, we must focus on whether Appellants were represented by counsel at the time the complaint was filed.

Under Ark. R. Civ. P. 11(a), “[a] party who is not represented by an attorney shall sign his pleading, motion, or other paper and state his address and telephone number, if any.” In addition, Ark. R. Civ. P. 64(a), provides that, when additional counsel is employed to represent any party in a case, that counsel shall immediately cause the clerk to enter his name as attorney of record in the case and then shall notify the court and opposing counsel that he has been employed. Here, the lack of any signature by an attorney on the complaint is indicative of Appellants’ pro se status at the time this action commenced. Moreover, the fact that an attorney did not file an entry of appearance in this matter until May 28, over three months after the filing of the complaint, is further proof that Appellants were not represented by counsel. We are mindful that counsel for Appellants now argues that his firm represented Appellants at the time the complaint was filed, but did not sign the complaint due to an inability to verify the allegations set forth in the pleading. If we accepted this argument, we would in effect be condoning counsel’s attempt to circumvent the rules of civil procedure, and we will not do so.

b. Role of Administrators

Next, Appellants contend that they were authorized to proceed pro se because as administrators of Moore’s estate they were vested with broad powers to manage a wrongful-death claim on behalf of the decedent. This argument is entirely contrary to this court’s established law regarding the role of administrators. An administrator acting on behalf of an estate does so in a fiduciary capacity. Arkansas Bar Ass’n v. Union Nat’l Bank, 224 Ark. 48, 273 S.W.2d 408 (1954). At issue in that case was whether a bank acting as the personal representative of an estate had engaged in the unauthorized practice of law. This court concluded that “a person who is not a licensed attorney and who is acting as an administrator, executor or guardian cannot practice law in matters relating to his trusteeship on the theory that he is practicing for himself.” Id. at 51-52, 273 S.W.2d at 410. In reaching this conclusion, the court noted that a trustee or personal representative is not acting for himself and in connection with his own affairs, but to the contrary is acting for others who would ordinarily be the beneficiaries.

This court further discussed the nature of the administrator’s role in Brewer v. Lacefield, 301 Ark. 358, 784 S.W.2d 156 (1990), and stated that an administrator acts only as a “trustee of conduit.” Id. at 362, 784 S.W.2d at 158 (citing Dukes v. Dukes, 233 Ark. 850, 853, 349 S.W.2d 339, 341 (1961); Ark. Code Ann. § 16-62-102(f) (1987)). This court further explained that proceeds from a wrongful-death action are for the sole benefit of the statutory beneficiaries and are held in trust by the administrator “for the benefit of the widow and next of kin.” Douglas v. Holbert, 335 Ark. 305, 314, 983 S.W.2d 392, 396 (1998); see also Brewer, 301 Ark. 358, 784 S.W.2d 156. Thus, Appellants as the administrators of Moore’s estate were acting on behalf of all the heirs at law when they filed this wrongful-death action. Their attempts to distinguish the above-cited cases on the grounds that no proceeds have yet been awarded are meritless.

c. Rights of Individual Heirs

Appellants also argue that it was error for the trial court to dismiss the complaint because Ramona filed suit in both her capacity as an administrator and as an individual heir at law. This argument fails for two reasons. First, this court has held that an individual may not file suit where a personal representative has been appointed. Pursuant to Ark. Code Ann. § 16-62-102(b) (1987), every wrongful-death action must be brought by and in the name of the personal representative. See also Brewer, 301 Ark. 358, 784 S.W.2d 156. The wrongful-death code does not create an individual right in any beneficiary to bring suit. Id. (citing Cude v. Cude, 286 Ark. 383, 691 S.W.2d 866 (1985)).

Moreover, where no personal representative has been appointed, a wrongful-death suit must be filed with all of the statutory beneficiaries joined as parties to a suit. Ramirez v. White Cty. Cir. Ct., 343 Ark. 372, 38 S.W.3d 298 (2001); Thompson v. Southern Lbr. Co., 113 Ark. 380, 168 S.W. 1068 (1914). This rule dates back to this court’s decision in McBride v. Berman, 79 Ark. 62, 94 S.W. 913 (1906). There, the court stated, “[t]hat in default of a personal representative an action brought under Lord Campbell’s Act must make the widow (if there be one) and the heirs at law parties thereto.” Id. at 65, 94 S.W. at 914.

Like the appellant in Ramirez, Appellants here argue that under this court’s decision in Murrell v. Springdale Mem. Hosp., 330 Ark. 121, 952 S.W.2d 153 (1997), an individual heir at law may bring suit for wrongful death even when there are other heirs at law. In Murrell, the widower filed suit as the surviving spouse and subsequently took a voluntary nonsuit. There were also three surviving children. The widower refiled the lawsuit as the personal representative of the estate and as the surviving spouse. The widower died and the couple’s son was appointed successor administrator. This court held that the widower’s action for wrongful death of his wife did not survive his death, and that the children’s claims were barred by the statute of limitation because they were not parties to the first action. In reaching this conclusion, however, we erroneously stated that a complaint filed by an individual heir “was appropriately brought according to Ark. Code Ann. § 16-62-102(b).” Id. at 124, 952 S.W.2d at 155. We clarified this statement in Ramirez, 343 Ark. 372, 38 S.W.3d 298, expressly holding that where there is no personal representative, any action for wrongful death shall be brought by all the heirs at law of the deceased. Accordingly, Ramona would have no standing to bring an individual claim for the wrongful death of Moore. In sum, any argument that Appellants were authorized to pursue a wrongful-death action pro se is without merit. Thus, we must next determine whether the filing of the pro se complaint constituted the unauthorized practice of law.

d. Unauthorized Practice of Law

The issue of what constitutes the unauthorized practice of law was thoroughly discussed by this court in Arkansas Bar Ass’n, 224 Ark. 48, 273 S.W.2d 408. There, this court stated:

It has been said in many opinions that it is not possible to give a definition of what constitutes practicing law that is satisfactory and all inclusive, and we make no such attempt. We do hold however that when one appears before a court of record for the purpose of transacting business with the court in connection with any pending litigation or when any person seeks to invoke the processes of the court in any matter pending before it, that person is engaging in the practice of law. To us this conclusion is obvious. Courts are constituted for the purpose of interpreting and administering the laws passed by the law making body and the rules announced by the judiciary, and they must necessarily be governed in their operation by rules of procedure. Attorneys are officers of the court and are able by special training and practice to know the law and rules of procedure, and are thereby in position to render a service to the court. Therefore anyone who assumes the role of assisting the court in its process or invokes the use of its mechanism is considered to be engaged in the practice of law.

Id. at 53, 273 S.W.2d at 411. Thus, the issue turns on a determination of whether Appellants attempted to transact business with or invoke the processes of the court.

In Arkansas Bar Ass’n, this court specifically prohibited the bank, either in its individual or fiduciary capacity, from preparing motions, pleadings, or other documents to be filed in the courts on behalf of any beneficiaries. Similarly, this court held that the filing of motions constituted the unauthorized practice of law. See Abel v. Kowalski, 323 Ark. 201, 913 S.W.2d 788 (1996). Accordingly, Appellants filing with the court a complaint constituted the unauthorized practice of law.

Finally, we are unpersuaded by Appellants’ attempts to distinguish the present case from Arkansas Bar Ass’n and its progeny. Appellants contend that those cases are inapplicable because they involved the unauthorized actions of banks or corporations that are specifically prohibited by statute from engaging in the practice of law. The crux of our prior decisions, however, is that administrators or other fiduciaries cannot proceed pro se in their representative capacity. Accordingly, our prior decisions are squarely on point with the present situation.

Having determined that Appellants engaged in the unauthorized practice of law, this court must next decide whether such action renders their original complaint a nullity. It is axiomatic that it is illegal to practice law in Arkansas without a license. See Ark. Code Ann. § 16-22-206 (1987); All City Glass & Mirror, Inc. v. McGraw Hill Info. Sys. Co., 295 Ark. 520, 750 S.W.2d 395 (1988). In discussing the appropriate remedy for such illegal practice, this court has stated:

It is widely held in other jurisdictions that proceedings in a suit instituted or conducted by one not entitled to practice are a nullity, and if appropriate steps are timely taken the suit may be dismissed, a judgment in the cause reversed, or the steps of the unauthorized practitioner disregarded.

McKenzie v. Burris, 255 Ark. 330, 333, 500 S.W.2d 357, 359-60 (1973). This court further stated that appropriate steps for dealing with the unauthorized practice of law included: a motion to strike a complaint; a motion to strike an answer; a motion for mistrial; or a motion to strike a petition. Id.

Moreover, this court has denied a motion for a writ of certiorari filed on behalf of a corporation by a non-attorney. McAdams v. Pulaski Cty. Cir. Ct., 330 Ark. 848, 956 S.W.2d 869 (1997). This court has also affirmed a trial court’s order striking an answer filed by a corporation’s president, who was not a licensed attorney. All City Glass, 295 Ark. 520, 750 S.W.2d 395. Finally, in Abel, 323 Ark. 201, 913 S.W.2d 788, this court ruled that a person not licensed to practice law in this state could not represent another and ordered the court of appeals to strike any motions filed by the non-attorney on remand. Since this court’s decision in McKenzie, however, there have been no cases where this court has specifically held an action to be a nullity because it constituted the unauthorized practice of law.

A review of other jurisdictions faced with similar issues reveals that there is a split of authority as to whether the unauthorized practice of law renders a proceeding a nullity or merely amounts to an amendable defect. Generally, those jurisdictions holding that the unauthorized practice of law results in a nullity have done so after concluding that the proscription on the unauthorized practice of law is of paramount importance in that it protects the public from those not trained or licensed in the law. See Ghafary v. Korn, 738 So. 2d 778 (Ala. 1998) (holding that an attempt by a non-attorney executrix, acting pro se, to represent the interest of an estate in a wrongful-death action constituted the unauthorized practice of law, and as such, the pro se complaint was a nullity); Black v. Baptist Medical Ctr., 575 So. 2d 1087 (Ala. 1991) (holding that the filing of complaint by person not admitted to practice law in Alabama was a fatal defect for purposes of the statute of limitations); Ratcliffe v. Apantaku, 318 Ill.App.3d 621, 742 N.E.2d 843 (2000) (holding that a non-attorney personal representative could not represent the legal interest of the decedent’s estate in a pro se capacity in a wrongful-death action); Waite v. Carpenter, 1 Neb. Ct. App. 321, 496 N.W.2d 1 (1992) (holding that personal representative was acting in a representative capacity for the estate and could not proceed pro se in a wrongful-death action).

On the other hand, those jurisdictions holding that the unauthorized practice of law results in an amendable defect have done so in an attempt to avoid what they deem to be the unduly harsh result of dismissal on technical grounds. See Mikesic v. Trinity Lutheran Hosp., 980 S.W.2d 68 (Mo. Ct. App. 1998) (holding that dismissal of claim not filed by proper person was unwarranted where the purpose of a statute of limitations is to assure fairness by prohibiting stale claims); Richardson v. Dodson, 832 S.W.2d 888 (Ky. 1992) (holding that pro se complaint filed by a decedent’s son in his individual capacity was an amendable defect, as the purpose of statutes of limitation is served when notice of the litigation is given within the time period allowed).

While we too disfavor dismissing actions on technical grounds, this court must remain cognizant of our duty to protect the interests of the public through the regulation of the practice of law. The power to regulate and define the practice of law is a prerogative of the judicial department as one of the divisions of government. See Wilson v. Neal, 341 Ark. 282, 16 S.W.3d 228 (2000), cert. denied, 121 S. Ct. 1355 (2001); Weems v. Supreme Ct. Comm. on Prof. Conduct, 257 Ark. 673, 523 S.W.2d 900, reh’g denied, 257 Ark. 685-A, 523 S.W.2d 900 (1975). Amendment 28 to the Arkansas Constitution specifically details our duty in this regard and states: “The Supreme Court shall make rules regulating the practice of law and the professional conduct of attorneys at law.” This court accepted the responsibility assigned to it by the constitution and set the standards high in order to protect the public, as well as the integrity of the legal profession. Wilson, 341 Ark. 282, 16 S.W.3d 228. In light of our duty to ensure that parties are represented by people knowledgeable and trained in the law, we cannot say that the unauthorized practice of law simply results in an amendable defect. Where a party not licensed to practice law in this state attempts to represent the interests of others by submitting himself or herself to jurisdiction of a court, those actions such as the filing of pleadings, are rendered a nullity.

Having determined that the original pro se complaint was a nullity, it is unnecessary for us to analyze Appellants’ arguments that Ark. R. Civ. P. 15 or 17 should be applied to salvage their cause of action. These rules can not apply, because the original complaint, as a nullity never existed, and thus, an amended complaint cannot relate back to something that never existed, nor can a nonexistent complaint be corrected.

III. Fraudulent Concealment

Finally, Appellants argue that the trial court erred in failing to find that the two-year statute of limitations period had been tolled by Appellees’ actions of fraudulently concealing the decedent’s medical records. Appellants aver that the affidavits submitted by them and the facts in this case should have prevented the trial court ftom granting a motion to dismiss. In other words, Appellants allege that there was a material question of fact at issue here. There is no merit to this argument.

Pursuant to Rule 15, a party may amend his pleadings at any time without leave of the court. The rule further provides:

Where, however, upon motion of an opposing party, the court determines that prejudice would result or the disposition of the cause would be unduly delayed because of the filing of an amendment, the court may strike such amended pleading or grant a continuance of the proceeding.

Ark. R. Civ. P. 15(a). This court has held that a trial court is vested with broad discretion in allowing or denying amendment to pleadings. Ultracuts, Ltd. v. Wal-Mart Stores, Inc., 343 Ark. 224, 33 S.W.3d 128 (2000); Stoltz v. Friday, 325 Ark. 399, 926 S.W.2d 438 (1996).

In Stoltz, the plaintiff filed an amended complaint that attempted to raise a new theory of recovery and defendants filed a motion to strike. The trial court granted the defendants’ motion, and this court affirmed. There, the amendment was filed nearly one year after the original complaint was filed, and it was filed while the defendant’s motion for summary judgment was pending. Under those facts, this court declined to hold that the trial court abused its discretion in striking this pleading.

Stoltz is analogous to the present situation. Here, Appellants did not raise the issue of fraudulent concealment until the filing of the fifth amended complaint, almost nine months after this action commenced. This amended complaint was also filed after the trial court orally granted Appellees’ motions to dismiss, but then granted Appellants additional time to file a motion for reconsideration. Counsel for Appellants conceded in oral argument before this court that they were aware of the alleged concealment of records, but failed to raise it at an earlier time because it did not appear to be necessary to raise that issue. Under these facts, we cannot say that the trial court abused its discretion in striking the amended complaint.

In sum, the trial court’s order dismissing this case was proper as Appellants failed to file a proper cause of action prior to the expiration of the two-year statute of limitations.

Circuit court affirmed; court of appeals reversed.

Howard W. Brill, Spl. J., joins in this opinion.

Imber, J., concurs.

Glaze, J., not participating.

Annabelle Clinton Imber, Justice,

concurring. I concur with the result reached in this case because I agree that our regulatory duty under Amendment 28 to the Arkansas Constitution mandates our holding set forth in the majority opinion: “Where a party not licensed to practice law in this state attempts to represent the interests of others by submitting himself or herself to jurisdiction of a court, those actions such as the filings of pleadings, are rendered a nullity.”

I write separately to voice the same concerns that I expressed in St. Paul Mercury Ins. Co. v. Circuit Court of Craighead County, 01-1311 (April 11, 2002) (Imber, J., concurring). The federal appellate courts have construed Rules 15(c) and 17(a) of the Federal Rules of Civil Procedure to permit relation back of amendments to pleadings adding entirely new plaintiffs under circumstances that do not evince a tactical or strategic decision, but rather, an understandable and excusable mistake. See Advanced Magnetics, Inc., v. Bayfront Partners, Inc., 106 F.3d 11 (2d Cir. 1997); Scheufler v. General Host Corp., 126 F.3d 1261 (10th Cir. 1997); Crowder v. Gordons Transports, Inc., 387 F.2d 413 (8th Cir. 1967).

The Arkansas survival wrongful-death statutes, respectively codified at Ark. Code Ann. §§ 16-42-101 and 16-42-102 (Supp. 2001), provide very clear and precise language delineating the proper party to bring suit. In the instant case, the attorney’s instruction to his clients to file pro se and his failure to sign the pleading cannot be condoned as an understandable mistake. The appellants’ conduct in this case was in fact a deliberate and tactical choice.

       Pursuant to Ark. R. Civ. P. 41(a), the trial court granted Appellants’ motion to dismiss without prejudice their claim against Dr. Lewis on June 23, 1999.


author: Donald L. Corbin, Justice.

text:
    THREE SISTERS PETROLEUM, INC.; Larry Oswald; James Morris; and Union Producing, L.L.C. v. Jerry LANGLEY, Individually and d/b/a Jerry Langley Oil Company; Jerry Langley Oil Company, L.L.C.; J.C. Langley; Gary Sewell; Richard Hill; Russell Clay Murphy; Rodney Landes Sr.; Steve Rogers; John Milam; and Glenn Sams
    02-162
    72 S.W.3d 95
    Supreme Court of Arkansas
    Opinion delivered April 11, 2002

      Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Marcella J. Taylor, Sherry P. Bartley, and L. Kyle Hefley; Patton, Haltom, Roberts, McWilliams & Greer, L.L.P., by: David P. Cotten; and, Of Counsel, Wiener, Weiss & Madison, A Professional Corporation, by: fohn M. Madison, fr., and Mark L. Hornsby, for appellants.

      Compton, Prewett, Thomas & Hickey, L.L.P., by: William I Prewett, for appellees.
   Donald L. Corbin, Justice.

This is an interlocutory appeal of a temporary restraining order. Appellants Three Sisters Petroleum, Inc.; Larry Oswald; James Morris; and Union Producing, L.L.C., argue that the Union County Circuit Court abused its discretion in granting an ex parte restraining order in favor of Appellees Jerry Langley, individually and doing business as Jerry Langley Oil Company; Jerry Langley Oil Company, L.L.C.; J.C. Langley; Gary Sewell; Richard Hill; Russell Clay Murphy; Rodney Landes Sr.; Steve Rogers; John Milam; and Glenn Sams. This case was originally submitted to us on Three Sisters’s motion to expedite the appeal and to stay the lower court proceedings. This court granted the motion on February 21, 2002. Our jurisdiction over this interlocutory appeal is pursuant to Ark. R. App. P.-Civ. 2(a)(6). For reversal, Appellants argue that the trial court abused its discretion in granting the temporary restraining order because Appellees failed to show (1) that they would suffer irreparable harm if an injunction was not granted, and (2) that there was a likelihood that they would succeed on the merits of their case. We agree with Appellants, and we reverse.

Facts and Procedural History

The subject of this litigation is a dispute over the ownership of oil leases on wells located in Arkansas. The leases were previously owned by Phillips Petroleum, and were purchased in October 1999 by Appellant Three Sisters, a Louisiana corporation. Thereafter, Three Sisters assigned its rights in the leases to Appellant Union Producing, a Louisiana limited-liability company, which Three Sisters or its principals, including Appellants Oswald and Morris, own or control. On March 3, 2000, Appellee Jerry Langley, by and through his attorney, sent a letter to Three Sisters claiming that he had a contract with Three Sisters to purchase the leases from Phillips. The letter proposed that Three Sisters sell some of the leases to Langley for $9,000 per net barrel. Three Sisters rejected the proposal and maintained that they had no valid contract with Langley regarding the leases.

On March 15, 2000, Appellants filed suit in state court in Caddo Parish, Louisiana, seeking a declaratory judgment as to whether any contract existed between Three Sisters and AppelleeS Langley. On May 18, 2000, Appellees removed that case to federal district court in Louisiana, based on a claim of diversity of citizenship. That same date, Appellees filed suit in federal district court in Arkansas. On March 29, 2001, the Louisiana federal court granted Appellees’ motion to transfer the declaratory-judgment action to the Arkansas federal court.

About one month later, on April 23, 2001, Appellants took a voluntary nonsuit of their declaratory-judgment action, which had been transferred to the Arkansas federal court. The decision to nonsuit was based on Appellants’ discovery that one of Langley’s partners, Appellee Richard Hill, was a resident of Louisiana. Because there was no longer diversity of citizenship, Appellants filed a new declaratory-judgment action in Louisiana state court on April 24, 2001.

Appellees, once again, removed the Louisiana state-court case to federal court in Louisiana. Eventually, however, the Louisiana federal court concluded that jurisdiction was in state court, and it granted Appellants’ motion to transfer the case back to the Louisiana state court. The Arkansas federal court also concluded that jurisdiction belonged in Louisiana state court, and it likewise granted Appellants’ motion to dismiss Appellees’ federal suit. One week later, Appellees filed the present suit in Union County, Arkansas. At that point, there were only two cases pending: (1) the declaratory-judgment action filed by Appellants on April 24, 2001, in Louisiana state court and (2) the civil complaint filed by Appellees on September 26, 2001, in the Union County Circuit Court.

On November 21, 2001, Appellants filed a motion to dismiss the Union County case or, alternatively, to stay that case until the Louisiana state case was resolved. Appellants urged that under principles of comity, the Arkansas court should allow the Louisiana court, which was the first to acquire jurisdiction over the parties and the subject matter, to conclude its proceedings first. The circuit court denied the motion on December 13, 2001. On February 8, 2002, Appellees filed a petition for an ex parte injunction in the circuit court, asking the court to restrain and enjoin Appellants from proceeding further in their suit in Louisiana. The circuit court granted the petition that same date, without a hearing, and issued a temporary restraining order. Appellants timely filed a notice of appeal from that order, and we granted a stay of the proceedings pending our resolution of this appeal.

Before we reach the merits of this case, we must first address Appellees’ motion to dismiss this appeal. Appellees contend that an interlocutory appeal will not lie from the grant of a temporary restraining order issued pursuant to Ark. R. Civ. P. 65. Appellants argue that such an appeal is specifically authorized by Ark. R. App. P. — Civ. 2(a)(6), which provides that an appeal may be taken from “[a]n interlocutory order by which an injunction is granted, continued, modified, refused, or dissolved, or by which an application to dissolve or modify an injunction is refused.” Appellees acknowledge this rule, but they contend that a temporary restraining order is not the equivalent of an injunction. Rather, they urge that a temporary restraining order is a lesser order that may ripen into an injunction following a hearing in the trial court. Thus, according to Appellees', there can be no appeal from a temporary restraining order issued under Rule 65 until the restrained party first exercises its right to apply for a hearing in the trial court. We are not persuaded by Appellees’ arguments.

In the first place, we disagree that application for a hearing to dissolve a temporary restraining order is a prerequisite to appeal. Rule 2(a)(6) is clearly written in the alternative, providing for an interlocutory appeal from the grant of an injunction and also for an interlocutory appeal from an order refusing to dissolve an injunction. Obviously, the second alternative anticipates that application has been made in the trial court to set aside or dissolve the injunction, but the first alternative does not. Accordingly, the argument on this point lacks merit.

In the second place, this court’s decisions have not drawn a distinction between temporary restraining orders and injunctions when accepting appeals. See, e.g., Amalgamated Clothing v. Earle Indus., Inc., 318 Ark. 524, 886 S.W.2d 594 (1994); American Trucking Ass’n v. Gray, 280 Ark. 258, 657 S.W.2d 207 (1983); Kreutzer v. Clark, 271 Ark. 243, 607 S.W.2d 670 (1980); and Boyd v. Dodge, 217 Ark. 919, 234 S.W.2d 204 (1950). For example, in Gray, 280 Ark. 258, 657 S.W.2d 207, this court concluded that the interlocutory order granting a temporary or preliminary injunction was appealable pursuant to Rule 2(a)(6), and it proceeded to apply the standard of review for the granting or denial of a “temporary restraining order.” Id. at 260, 657 S.W.2d at 208 (emphasis added). Similarly, in Boyd, 217 Ark. 919, 234 S.W.2d 204, this court used the terms “temporary restraining order” and “injunction” interchangeably:

[A] majority of the Justices are of the opinion that the petition filed herein should be treated as an appeal from the interlocutory order of the Chancellor granting a temporary restraining order. . . . Ark. Stats. 27-2102 provides that an appeal may be taken to the Supreme Court from an interlocutory order granting or refusing an injunction.

Id. at 922, 234 S.W.2d at 205-06 (emphasis added). These cases demonstrate that this court has not heretofore differentiated between temporary or preliminary injunctions or restraining orders for purposes of determining jurisdiction on appeal. Interestingly, Appellees do not even differentiate between the two; their motion is styled “Petition for Injunction,” but the body of the motion asks the court to issue a “preliminary restraining order.”

Finally, we conclude that Appellees’ argument must be rejected based on the Reporter’s Notes (as modified by this court) to Rule 65, which clearly reflect this court’s intention to treat temporary restraining orders the same as preliminary injunctions:

1. Rule 65 marks a significant departure from [Federal Rule of Civil Procedure] 65. Whereas the latter makes a distinction between preliminary injunctions and temporary restraining orders, this rule treats them equally insofar as the procedures are concerned for obtaining either remedy. [Emphasis added.]

Based on the foregoing authorities, we conclude that we have jurisdiction of this interlocutory appeal, and we deny Appellees’ motion to dismiss. We now turn to the issues on appeal.

Appellants argue that the trial court abused its discretion in granting the temporary restraining order because (1) the allegations and findings of irreparable harm are insufficient as a matter of law, and (2) there is no finding at all regarding the likelihood that Appellees would succeed on the merits of their suit. Appellants also argue that the restraining order impermissibly infringes on the respect and deference due to courts of other jurisdictions.

We note at the outset that the issuance of a temporary restraining order is a matter addressed to the sound discretion of the trial court, and its decision will not be reversed on appeal unless it is clearly erroneous. Custom Microsystems, Inc. v. Blake, 344 Ark. 536, 42 S.W.3d 453 (2001). In determining whether to issue a preliminary injunction or temporary restraining order pursuant to Rule 65, the trial court must consider two things: (1) whether irreparable harm will result in the absence of an injunction or restraining order, and (2) whether the moving party has demonstrated a likelihood of success on the merits. Id.

Regarding the first necessary showing, this court has held: “Essential to the issuance of a temporary restraining order is a finding that a failure to issue it will result in irreparable harm to the applicant.” Kreutzer, 271 Ark. at 244, 607 S.W.2d 670, 671 (citing Ark. R. Civ. P. 65). “The prospect of irreparable harm or lack of an otherwise adequate remedy is the foundation of the power to issue injunctive relief.” Wilson v. Pulaski Ass’n of Classroom Teachers, 330 Ark. 298, 302, 954 S.W.2d 221, 224 (1997).

Regarding the second thing that must be shown, this court has held: “Of course, in order to justify a grant of preliminary injunction relief, a plaintiff must establish that it will likely prevail on the merits at trial.” W.E. Long Co. v. Holsum Baking Co., 307 Ark. 345, 351, 820 S.W.2d 440, 443 (1991) (citing Smith v. American Trucking Ass’n, 300 Ark. 594, 781 S.W.2d 3 (1989)). The test for determining the likelihood of success is whether there is a reasonable probability of success in the litigation. Custom Microsystems, 344 Ark. 536, 42 S.W.3d 453. Such a showing “is a benchmark for issuing a preliminary injunction.” Id. at 542, 42 S.W.3d at 457-58.

The record in this case is devoid of evidence supporting a finding of irreparable harm or of a likelihood of success. First, the temporary restraining order itself contains no factual findings of irreparable harm to Appellees. The closest thing to a finding of fact on this issue is the trial court’s conclusion that it “is not in the best interest of the parties financially” to continue litigating this matter in multiple courts. This finding is insufficient. Harm is normally only considered irreparable when it cannot be adequately compensated by money damages or redressed in a court of law. Kreutzer, 271 Ark. 243, 607 S.W.2d 670. Obviously, financial harm is not irreparable, as it can be adequately compensated by money damages. Furthermore, financial concerns aside, the fact that “some inconvenience will be occasioned” by litigation in multiple courts is not sufficient reason to justify judicial restraint. Standard Oil Co. of Louisiana v. Reddick, 202 Ark. 393, 396, 150 S.W.2d 612, 614 (1941).

The only other mention of irreparable harm in the restraining order is as follows:

Defendants are engaging in a race to the courthouse which may cause irreparable harm to Plaintiffs by forcing Plaintiffs to defend in a foreign court wherein:
(a) the issue of personal jurisdiction has not been resolved;
(b) all necessary parties are not before the court, and
(c) all relief cannot be granted for all parties.

None of these claims of irreparable harm can be substantiated. In the first place, the issue of personal jurisdiction has been resolved by the Louisiana state court. The fact that Appellees have appealed that ruling does not make it an unresolved issue. Moreover, both the Arkansas and Louisiana federal courts came to the same conclusion — jurisdiction belongs in Louisiana state court. In the second place, the only “necessary” party that has not been included in the Louisiana case is Langley’s father, J.C. Langley, who is a ward of Langley. Appellees do not explain how J.C. Langley is a necessary party to the action. If, however, he is an investor-partner, like the other individual Appellees, then he certainly may be joined in the Louisiana litigation.

In the third place, the allegation that relief cannot be granted to all parties in Louisiana is not accurate. All of the claims filed by Appellees in the Union County court have been filed as counterclaims in the Louisiana state-court action. Appellees’ assertion that the Louisiana court could not order a constructive trust on property located in Arkansas is a red herring. The bottom line is that this case comes down to a single issue: Whether a contract existed between Langley and Three Sisters to purchase the oil leases from Phillips Petroleum. This issue is squarely presented to the Louisiana court, which has authority to decide it. Undoubtedly, the Louisiana court has the authority to order Appellants to convey part of the leases to Appellees, should Appellees prevail, under the theory of specific performance. In Reddick, 202 Ark. 393, 150 S.W.2d 612, this court quoted with approval the following holding from the United States Supreme Court:

Where the necessary parties are before a court of equity, it is immaterial that the res of the controversy, whether it be real or personal property, is beyond the territorial jurisdiction of the tribunal. It has the power to compel the defendant to do all things necessary, according to the lex loci rei sitae, which he could do voluntarily, to give full effect to the decree against him. Without regard to the situation of the subject-matter, such courts consider the equities between the parties, and decree in personam according to those equities, and enforce obedience to their decrees by process in personam.

Id. at 396, 150 S.W.2d at 614 (emphasis added) (quoting Phelps v. McDonald, 99 U.S. 298, 308 (1878) (citations omitted)). Because all the necessary parties are before the court in Louisiana, it is immaterial that the oil wells are located in Arkansas. Accordingly, we conclude that Appellees have failed to demonstrate that they would suffer irreparable harm if the restraining order was not granted.

Likewise, Appellees have also failed to demonstrate a reasonable probability that they would succeed in their suit. Appellants assert that there was an initial agreement between the parties to attempt to purchase the oil leases from Phillips. They initially agreed that they would split the leases 50-50, and that Langley’s company would be the record purchaser. However, that agreement was not acceptable to Phillips, as it wanted assurances that the purchaser would indemnify it for any environmental claims arising out of its ownership of the leases. Phillips did not believe that Langley had the financial strength or operations experience to stand behind such an indemnity obligation. As a result of Phillips’s concerns, Three Sisters proposed an 85-15 split between the parties. According to Appellants, the exact terms of the proposal were never agreed upon, and Langley was not successful in obtaining financing to purchase his share of the leases. After repeated inquiries regarding his ability to secure financing, and even one attempt at assisting him in obtaining a loan, Langley finally told Three Sisters to “count me out.” Thereafter, Three Sisters purchased the leases from Phillips and subsequently assigned them to Appellant Union Producing.

The facts as told by Appellees are quite different. They contend that a valid agreement existed between Langley and Three Sisters to purchase the oil leases 50-50. They claim that Three Sisters unilaterally altered the agreement to an 85-15 split. They claim further that Three Sisters never provided Langley with any documentation from Phillips regarding Phillips’s alleged unwillingness to do business with him. They also claim that Langley was able to obtain financing, but that Three Sisters purchased the oil leases on its own behind his back. Given these two contradictory versions of what occurred between the parties, we cannot say that the record demonstrates a reasonable probability that Appellees will succeed on the merits of their suit.

Finally, we agree with Appellants that the restraining order issued in this case ignores common principles of comity between courts of sister states. ‘“Judicial comity’ is the principle in accordance with which the courts of one state or jurisdiction give effect to the laws and judicial decisions of another, not as a matter of obligation but out of deference and respect.” 16 Am. Jur. 2d Conflict of Laws § 16 (1998) (footnote omitted). The principle of comity requires that courts exercise the power to enjoin foreign suits sparingly. See 42 Am. Jur. 2d Injunctions § 195 (2000). This is particularly true where suit has already been brought in the foreign court. Generally, “ [a] court of one state will not enjoin the prosecution of an action in a second state when the court of the second state was the first to acquire jurisdiction of the parties and the right to adjudicate the controversy, in the absence of some peculiarly equitable ground for granting such relief.” 42 Am. Jur. 2d Injunctions § 206 (2000) (footnote omitted). This general principle was recognized in Pickett v. Ferguson, 45 Ark. 177, 189 (1885), wherein this court held that restraining a party from proceeding in the courts of another state “is a matter of very great delicacy, almost inevitably leading to the distressing conflicts of jurisdiction.” This court concluded that such restraint should only be imposed “where the foreign suit appears to be ill calculated to answer the ends of justice,” such as where the court lacks jurisdiction over all of the parties or the subject matter of the case. Id. (citations omitted).

In Pickett, the subject of the litigation was title to property located in Arkansas. A suit was filed by the original landowner, Mrs. Pickett, in Tennessee. She later filed suit in Arkansas because she was not able to obtain service on one of the defendants in Tennessee, as he had since moved to Arkansas. The defendants asked the Arkansas court for an injunction preventing Mrs. Pickett from proceeding further in her Tennessee suit. The trial court granted the injunction and this court upheld.it. The decisive factor supporting the injunction was not that the property was located in Arkansas, but that the Tennessee court did not have, and could not obtain, personal jurisdiction over an indispensable party. This court held:

The fact that the real estate, which is the subject of controversy, was situate in Arkansas, was not an insuperable obstacle in the way of doing complete justice by the Tennessee court. But as a court of equity in such cases acts in personam, it must have jurisdiction over the parties in order to administer the cause. Ferguson, an indispensable party to the litigation, was absent.

Id. at 189-90. This holding demonstrates this court’s respect for the courts of our sister states and its caution in upholding injunctions that preclude parties from maintaining and prosecuting suits in other states.

Following Pickett, this court demonstrated even more caution when reviewing an injunction prohibiting a resident of another state from proceeding with a suit in that other state. In Greer v. Cook, 88 Ark. 93, 113 S.W. 1009 (1908), this court refused to uphold an injunction prohibiting a creditor who lived in Missouri from proceeding with a suit in Missouri against a debtor who lived in Arkansas. This court concluded that the case turned on the right of the creditor to proceed with the suit in his home state. It was thus immaterial that suit had already been brought by the creditor in Arkansas. This court explained:

The fact that an action was first instituted and was pending here when the new action was commenced in Missouri does not alter the case. Whether or not the bringing of a new action in a foreign jurisdiction operates as an abatement of the action here, we need not decide. The result turns upon the right of the creditor to bring his action in another State without being open to the charge of having fraudulently evaded the laws of this State; and if he had the right, in the first instance, to sue in another State, the fact that he had already instituted suit here does not cut off that right. The fact that the creditor instituted the suit in a foreign jurisdiction for the sole purpose of vexation and oppression does not authorize the interposition of a court of equity by injunction. The remedy, if any, is at law for the malicious abuse of process.

Id. at 96, 113 S.W. at 1010 (citation omitted) (emphasis added).

Here, unlike the facts in Pickett, the Louisiana state court has jurisdiction over all of the parties. In fact, the issue of jurisdiction has been repeatedly litigated, with the Louisiana state court and both the Arkansas and Louisiana federal courts ruling that jurisdiction belonged in Louisiana state court, due to the fact that Louisiana residents were on both sides of the suit. Although Appellees have appealed the most recent jurisdiction ruling by the Louisiana state court, it is not apparent that they will succeed on that issue. Moreover, the holding in Cook clearly demonstrates this court’s historic reluctance to support an injunction restraining a resident of a sister state from proceeding with a suit already instituted in that state. In short, the circuit court’s authority to issue injunctions of foreign suits should only be exercised in the rarest of circumstances. This is not such a rare circumstance.

In sum, we conclude that the trial court abused its discretion in issuing the restraining order in this case. The Louisiana state court has jurisdiction over the parties and the subject matter of the dispute. There has been no showing of irreparable harm to Appellees that would justify an order restraining Appellants, residents of Louisiana, from proceeding with a suit filed in their home state, a suit that was filed first. Moreover, Appellees have failed to make the requisite showing that they would likely prevail on the merits of their suit. Under the circumstances, judicial comity must prevail. Accordingly, we reverse and remand with instruction to the trial court that the restraining order be dissolved, thus allowing Appellants to proceed with their suit in Louisiana.

Reversed and remanded.

       In paragraph 13 of the complaint, J.C. Langley is Usted as one of the persons to whom Jerry Langley offered the opportunity to purchase an interest in the oil leases. In paragraph 16, however, J.C. Langley is omitted horn the Ust of investors who had entered into a written agreement with Jerry Langley to invest in the leases.