K.L. MARTIN, AS PARENT OF AND GUARDIAN OF F.M., A MINOR APPELLANT
MIGEL JIMENEZ AND JIMENEZ GRANITE AND TILE CO., LLC APPELLEES
FROM THE BENTON COUNTY CIRCUIT COURT [NO. CV-2011-2067]
HONORABLE ROBIN F. GREEN, JUDGE
Moore Pendergraft LLP, by: Timothy C. Hutchinson; and The
Williams Law Group, PLC, by: Bryan Vernetti, for appellant.
Offices of Steven H. Kay and Associates, by: Steven H. Kay,
BRANDON J. HARRISON, Judge
Martin, as parent and guardian of her child F.M., appeals the
Benton County Circuit Court's dismissal of her complaint
with prejudice as a discovery sanction for violating a May
2015 scheduling order. We have jurisdiction pursuant to Ark.
R. App. P.–Civ. 2(a)(4) (2015). We agree that the
discovery sanction cannot stand given the timing of when the
circuit court entered its order.
case has a lengthy procedural history, most of which is
unnecessary to decide this appeal. Here are some of the
highlights. The operative complaint was filed in circuit
court in March 2012. In it, Martin alleged that Jimenez
sexually assaulted twelve-year-old F.M. while he was working
on plumbing at the Martins' home and employed by Jimenez
Granite and Tile Company, LLC. Martin asserted claims for
assault, battery, outrage, and false imprisonment. The
appellees, whom we collectively refer to as Jimenez, denied
Martin's allegations and counterclaimed for abuse of
process and malicious prosecution, stating that the Benton
County Prosecutor closed a related criminal case against
Miguel Jimenez individually "for lack of evidence that
any assault had occurred."
April 2013, Jimenez moved the circuit court for sanctions
based on discovery violations, and he moved for Rule 11
sanctions against Martin's attorney. Jimenez withdrew
these motions in an agreed order entered in July 2013. The
case was stayed for bankruptcy reasons and then reopened.
April 2015, Jimenez moved the circuit court to hold Martin in
contempt and to dismiss her complaint with prejudice as a
sanction under Ark. R. Civ. P. 37(b)(2). The circuit court
held a hearing on the motion on 6 May 2015.
May 2015, the court entered an order titled "Pretrial
order states as follows:
1. That this Court had set this matter for a jury trial on
May 11, 2015, at 1:30 pm. That the May 11, 2015, jury trial
date is hereby vacated due to this court finding Plaintiffs
in contempt of court for repeated discovery violations.
2. That this Court finds that Defendant has repeatedly and
properly sought the names of the doctors and psychiatrists
whom have treated the Plaintiff, but that information has not
been provided to him. Further, this Court finds that the
Defendant has made every good faith attempt possible,
pursuant to the Rules of Civil Procedure, to gather this
4. That Plaintiff is ordered to provide Defendant, not later
than May 15, 2015, with a complete list of all psychiatrists,
doctors, counselors, and/or health care professionals whom
have prescribed medications and/or managed medications for
the Plaintiff F.M., and/or treated or provided services to
F.M. in any way.
5. That Plaintiff is put on notice that one more failure to
provide the above referenced information will result in the