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Martin v. Jimenez

Court of Appeals of Arkansas, Division I

May 18, 2016

K.L. MARTIN, AS PARENT OF AND GUARDIAN OF F.M., A MINOR APPELLANT
v.
MIGEL JIMENEZ AND JIMENEZ GRANITE AND TILE CO., LLC APPELLEES

         APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NO. CV-2011-2067] HONORABLE ROBIN F. GREEN, JUDGE

          Reece Moore Pendergraft LLP, by: Timothy C. Hutchinson; and The Williams Law Group, PLC, by: Bryan Vernetti, for appellant.

          Law Offices of Steven H. Kay and Associates, by: Steven H. Kay, for appellees.

          BRANDON J. HARRISON, Judge

         K.L. 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.

         I.

         This 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."

         In 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.

         In 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.

         On 19 May 2015, the court entered an order titled "Pretrial Scheduling Order."

         The 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 information.
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 ...

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