FROM THE ST. FRANCIS COUNTY CIRCUIT COURT [NO.
62CV-2005-76-2] HONORABLE RICHARD L. PROCTOR, JUDGE
Lawrence W. Jackson, for appellant.
Daggett, Donovan & Perry, PLLC, by: Robert J. Donovan,
BRANDON J. HARRISON, Judge
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).
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
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.
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.
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.
one month later, on April 24, the circuit court entered the
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 ...