FROM THE BENTON COUNTY CIRCUIT COURT [NO. CV-2013-1123-3]
HONORABLE THOMAS SMITH, JUDGE
Office of Joel E. Cape, PLC, by: Joel E. Cape, for appellant.
Prettyman, PLLC, by: Joshua Q. Mostyn, for appellee.
BRANDON J. HARRISON, Judge
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.
2013, Drywall Crews, Inc. (DCI), filed a complaint for
injunctive and declaratory relief against
Almeida. 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.
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."
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.
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."
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.
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
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 ...