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Almeida v. Metal Studs, Inc.

Court of Appeals of Arkansas, Division II

December 14, 2016




          Law Office of Joel E. Cape, PLC, by: Joel E. Cape, for appellant.

          Mostyn Prettyman, PLLC, by: Joshua Q. Mostyn, for appellee.

          BRANDON J. HARRISON, Judge

         Kristopher Almeida appeals an order of the Benton County Circuit Court that entered monetary sanctions against him for failing to be present for a scheduled hearing. For reversal, he argues that the circuit court's setting of the hearing was not reduced to a written order and entered, so he cannot be sanctioned for not appearing. We hold that the order of sanctions in this particular case is not a final, appealable order and dismiss the appeal without prejudice.

         In July 2013, Drywall Crews, Inc. (DCI), filed a complaint for injunctive and declaratory relief against Almeida.[1] The complaint alleged that Almeida, a former employee of DCI, had violated the parties' confidentiality and noncompetition agreement. On 15 August 2013, the circuit court entered a preliminary injunction that ordered Almeida to return certain equipment to DCI and enjoined him from working for one of DCI's competitors. The injunction order took effect immediately and remained in effect "pending a superseding Order of this Court or until July 15, 2015, whichever is first." Almeida filed an answer on 29 August 2013; however, no further action was taken in the case for over a year.

         In October 2014, DCI initiated discovery by filing a request for admissions. After several delays, Almeida filed a response to the request for admissions in January 2015. On 26 January 2015, DCI filed a motion for contempt, alleging that Almeida had "willfully and maliciously" violated the preliminary injunction. In February 2015, DCI and Almeida both filed motions to compel discovery. The court entered an order in June 2015 requiring both parties to provide discovery and to complete depositions within thirty days. The court set a hearing for July 16 to "address any remaining discovery issues and to proceed on Plaintiff's Motion for Contempt."

         The July 16 hearing proceeded as scheduled, but because certain discovery was still not completed, including Almeida's deposition of Mr. Avalos, the court announced,

[W]e're going to pick another day to finish this. And I'm going to let you do your deposition, notice him up, and do whatever you've got to do to get the rest of your deposition, and then you all can finish this. . . . I want all of your discovery done by August 31. . . . I'm going to take up and finalize this contempt part of this on August 28 at 1:15.

         The court also found that the preliminary injunction would be extended to August 31 and concluded, "I'll see you all back August 28 at 1:15. I want all of that discovery done that you've told me needs to be finished."

          On 27 August 2015, Almeida filed a "motion for continuance of docket call" requesting that the August 28 hearing be rescheduled. In the motion, Almeida's counsel claimed that he had learned about the scheduled hearing on August 26 and that the "new hearing date has caught Defendant and counsel by surprise." Counsel also argued that "no Order has ever been entered by the Court from the July 16 docket call regarding its rulings on discovery or the extension of the Preliminary Injunction." DCI opposed this motion and argued that the circuit court continued the contempt hearing until August 28 in open court, that this should not be a surprise to counsel or his client, and that the contempt hearing had already been continued several times to allow Almeida time to conduct discovery.

         When the circuit court reconvened the hearing on August 28, Almeida was not in attendance. When asked why his client was not present, counsel said, "Because I didn't know we had a contempt hearing today." Counsel argued that there was "no docket entry . . . no order of anything, " but the court stated, "When somebody is sitting right here in this courtroom, and they're given an order of the Court to come here at one o'clock on this date, with their client sitting right there, they need to have their butt here." Counsel later acknowledged that he thought the hearing date was August 31 and that he was "terribly sorry." But he also asserted that Arkansas Rule of Civil Procedure 58 requires a written order to be entered to be effective.

         The court imposed a sanction of "$3, 500 in fees, for him not showing up" and also awarded travel and hotel expenses for Avalos, who had traveled from Texas ...

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