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Stewart v. Michaelis

Court of Appeals of Arkansas, Division III

December 7, 2016

ROBERT STEWART APPELLANT
v.
GARY MICHAELIS, INDIVIDUALLY AND D/B/A RACER AG SERVICE APPELLEES

         APPEAL FROM THE ST. FRANCIS COUNTY CIRCUIT COURT [NO. 62CV-2005-76-2] HONORABLE RICHARD L. PROCTOR, JUDGE

         REVERSED AND REMANDED

          Lawrence W. Jackson, for appellant.

          Daggett, Donovan & Perry, PLLC, by: Robert J. Donovan, for appellee.

          BRANDON J. HARRISON, Judge

         In April 2015, the St. Francis County Circuit Court dismissed this ten-year-old case without prejudice for lack of prosecution. The court's order stated that there had been no activity during the two years before the dismissal; our review of the record and the parties' arguments indicates that there was no case activity for the past four years. In either event, the issue here is whether the circuit court abused its discretion when it dismissed the case without prejudice under Arkansas Rule of Civil Procedure 41(b).

         I.

         This case's particular history informs our decision to reverse the dismissal and remand for further proceedings. Only the highlights follow. The litigation began in 2005, when Robert Stewart filed a complaint against Gary Michaelis, and several other defendants, for malicious prosecution, abuse of process, defamation, and more. Stewart had apparently complained to the State Plant Board that Michaelis was flying a crop-dusting plane too close to Stewart's house, which frightened his family; Stewart also said that chemicals released from the plane rained death on his fruit trees and other vegetation. The parties dispute the content and meaning of what Stewart said during a telephone call to the State Board. Apparently the words "shoot the plane" were uttered, but how the phrase should be taken is disputed. Michaelis, having learned about Stewart's call to the Board, urged a criminal prosecution against him. Stewart's civil complaint alleged, among other things, that Michaelis pressed criminal charges against him in retaliation for Stewart's complaint to the State Plant Board.

         A difficult discovery process ensued in the civil case. Eventually, the parties entered a confidentiality agreement; and the circuit court entered a protective order in March 2006. About two years later, in April 2008, the circuit court granted summary judgment to one of the defendants. In August 2008, the court notified the parties that the case would be dismissed under Arkansas Rule of Civil Procedure 41(b) unless good cause was shown why it should stay on the docket. Three days later Stewart responded in a letter that "Plaintiff is ready to try this matter. Please set this matter for a two day jury trial at the court's earliest convenience." The court set the case for a one-day jury trial to be held in May 2009. But the case was not tried because the court continued the matter on defendant Michaelis's motion, ordered the parties to mediation, and required "the district court and circuit court records in issue [meaning the related criminal prosecution] be opened for its examination." The circuit court further stated: "After the Court examines the [criminal] records in camera, the Court will determine who else may examine the records and then will define the limited purposes for which the documents may be used." Meanwhile, Michaelis tried to collaterally attack court orders issued in the criminal cases against Stewart. See Michaelis v. Cir. Ct. of St. Francis Cty., 2009 Ark. 633.

         In October 2010, Stewart asked the circuit court to order the parties to mediation and to set a three-day jury trial. The parties continued to wrangle over issues. Michaelis moved for summary judgment in March 2011-and Stewart resisted the effort-but the motion was never decided.

         Fast forward . . . . four years . . . . to 12 March 2015, when the circuit court issued a "Notice of Possible Dismissal Pursuant to Rule 41(b) of the Arkansas Rules of Civil Procedure." Plaintiff Stewart responded by letter:

Today, I received the Court's Notice of Possible Dismissal Pursuant to Rule 41(b) of the Arkansas Rules of Civil Procedure, which included the above-referenced matter. I would ask that the matter remain on the Court's docket and be set for trial at the Court's convenience. I anticipate receiving a scheduling order, but if I need to prepare a precedent to allow the case to remain open I will be happy to do so. By copy of this letter, I am advising opposing counsel of the same.

         About one month later, on April 24, the circuit court entered the dismissal order:

The Court is in receipt of a letter dated March 12, 2015, from the attorney for the Plaintiff [Stewart], requesting this matter remain on the active docket and set for trial. This request is denied due to the fact this case is over ten (10) years old ...

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