FROM THE PULASKI COUNTY CIRCUIT COURT [60CV-14-2065]
HONORABLE TIMOTHY DAVIS FOX, JUDGE
M. Carpenter, Office of the City Attorney, for appellant.
Rutledge, Att'y Gen., by: Colin R. Jorgensen, Ass't
Att'y Gen., for appellee.
F. WYNNE, Associate Justice.
City of Little Rock (City) appeals from orders of the Pulaski
County Circuit Court imposing a $10, 000 fine for violations
of Arkansas Rule of Civil Procedure 11 and finding the City
in contempt for failure to pay the fine within the time
prescribed. The City argues that the imposition of Rule 11
sanctions and the finding of contempt constitute a plain,
manifest, and gross abuse of discretion. We affirm in part
and dismiss in part.
2014, Tiffany Malone sued the City and various officials in
the Little Rock Police Department (LRPD) for gender
discrimination and retaliation. In November 2015, the circuit
court entered a scheduling order setting trial for May 4-6,
2016. The order set a pretrial hearing for April 4, 2016.
Discovery was required to be completed sixty days prior to
the pretrial date. On February 26, 2016, the City filed a
motion to continue the jury trial, citing medical issues
experienced by the City's counsel assigned to the case.
The motion was denied. The City filed a second, more detailed
motion for continuance that included medical records attached
as exhibits on March 8, 2016. The circuit court denied the
second motion. On March 30, 2016, the City filed a motion to
reconsider the rulings on the first and second motions for
April 21, 2016, the City filed a motion to continue jury
trial and request a new scheduling order. In the motion, the
City alleged that Ms. Malone had identified in her witness
list any person identified in interrogatories or deposed in
her case and three other similar cases against LRPD that had
been filed and were undergoing discovery. The City requested
a continuance to review the discovery in the other cases. The
City filed a separate concurrent motion in which it requested
that it be granted either (1) a continuance or (2) permission
to file a motion in limine regarding Ms. Malone's witness
April 25, 2016, the circuit court entered an order regarding
the City's April 21, 2016 motion to continue jury trial
and request a new scheduling order. In the order, the circuit
court states that, at the pretrial hearing on April 4, 2016,
counsel for the City made statements indicating that she had
not "properly and professionally prepared the case for
trial" and that she had "failed and refused"
to comply with the scheduling order. The circuit court found
that the City had willfully refused to comply with the
scheduling order, necessitating that the scheduled jury trial
be continued. The circuit court further found that the
willful actions of the City in failing to comply with the
scheduling order and in filing repeated motions for a
continuance was a violation of Rule 11 of the Arkansas Rules
of Civil Procedure. The circuit court assessed a penalty of
$10, 000 and ordered the City to pay the penalty within ten
3, 2016, the City filed a motion to set aside the sanction,
in which it argued that the circuit court had failed to
comply with the requirements of Rule 11. The next day, the
City filed a motion to stay the sanction pending
consideration of the motion to set aside. The circuit court
denied both motions in an order entered on May 9, 2016. Also
on May 9, 2016, the circuit court issued an order requiring
the Little Rock City Manager to appear and show cause why the
City should not be held in contempt for failure to pay the
penalty within ten days. On May 12, 2016, the City filed a
notice of payment of fine and motion to cancel show-cause
hearing as moot to which it attached a receipt reflecting
that it had paid the $10, 000 penalty on that date. The
show-cause hearing was held on May 16, 2016. On May 20, 2016,
the circuit court entered an order in which it found the City
in contempt and stated that it could cure its contempt by
requiring the city attorney to attend at least five
additional hours of continuing legal education on the
specific topics of law-office case management and/or
docketing and control and one additional ethics hour. The
circuit court further stated that, if the City failed to
purge the contempt by January 13, 2017, the defendants'
answer would be stricken and default judgment as to liability
would be entered in favor of Ms. Malone. On June 6, 2016, the
City filed a notice of appeal from both the April 25, 2016
order and the May 20, 2016 order.
argues that the notice of appeal is untimely as to the April
25 order because it was filed more than thirty days after
that order was entered. We disagree. Pursuant to Arkansas
Rule of Appellate Procedure-Civil 4(b)(1) (2016), the filing
of a motion to vacate, alter, or amend a judgment made no
later than ten days after the entry of the judgment extends
the time to file a notice of appeal to thirty days after the
entry of an order disposing of the motion. The City filed a
motion to set aside the sanction imposed in the April 25
order on May 3, which was within ten days. The circuit court
denied the motion on May 9. The City filed its notice of
appeal on June 6, which was within thirty days of the May 9
order. Thus, the notice was timely as to the April 25 order.
Additionally, there is no dispute that the notice of appeal
is timely as to the May 20 contempt order. An appeal from any
final order also brings up for review any intermediate order
involving the merits and necessarily affecting the judgment.
Ark. R. App. P.-Civ. 2(b) (2016). We have held that an appeal
from a contempt order also brings up for review the order or
orders on which the contempt is based. Young v.
Young, 316 Ark. 456, 872 S.W.2d 856 (2004). Therefore,
the April 25 order is properly before us.
determined that the April 25 order is properly before us, we
must now determine whether the City's payment of the $10,
000 sanction renders an appeal from the April 25 order moot.
We hold that it does. If the payment of a judgment is voluntary,
the case is moot, but if the payment is involuntary, the
appeal is not precluded. Reynolds Health Care Servs.,
Inc. v. HMNH, Inc., 364 Ark. 168, 217 S.W.3d 797 (2005).
In determining whether a payment was voluntary or
involuntary, one of the most important factors to consider is
whether the payor was able to file a supersedeas bond at the
time the judgment was satisfied. Id. Here, the City
filed a motion to stay the sanctions while the motion to set
aside was under consideration. Once the motion to reconsider
was denied, the City never requested a supersedeas pending an
appeal of the April 25 order. Instead, the City paid the
sanction on May 12, without ever requesting that the circuit
court issue a supersedeas, hold the check pending resolution
of an appeal of the April 25 order, or anything else. It
simply paid the penalty. It is evident that the payment was
intended as a resolution of the matter, as the City,
immediately upon making the payment, requested that the
circuit court cancel the show-cause hearing as moot. The City
voluntarily paid the penalty in order to avoid a contempt
finding; however, the attempt was unsuccessful. In sum, the
payment by the City was voluntary, and the appeal from the
April 25, 2016 order is accordingly dismissed as
City also challenges the May 20 order finding it in contempt.
That order found the City in contempt for failing to timely
pay the Rule 11 penalty and stated that the City could purge
itself of the contempt by requiring the city attorney to
obtain additional continuing-legal-education credits. The
contempt was civil in nature, as the City could purge itself
of the contempt by performing the act specified by the
circuit court. See Ark. Dep't of Health and Human
Servs. v. Briley, 366 Ark. 496, 237 S.W.3d 7
(2006). Our standard of review in civil contempt
proceedings is whether the finding of the circuit court is
clearly against the preponderance of the evidence. Omni
Holding & Dev. Corp. v. 3D.S.A., Inc., 356 Ark. 440,
156 S.W.3d 228 (2004).
April 25 order required the City to pay the $10, 000 penalty
within ten calendar days. It is undisputed that the City did
not pay the penalty until May 12, 2016, which was more than
ten calendar days after the April 25 order had been entered.
In arguing that the May 20 order should be reversed, the City
argues that the circuit court failed to comply with the
requirements of Rule 11 in imposing the sanction in the April
25 order. The City presents no argument that would
allow us to reverse the May 20 order that is independent of
the April 25 order. However, where a party is held in
contempt for failure or refusal to abide by a judge's
order, the reviewing court will not look behind the order to
determine whether it is valid. Conlee v. Conlee, 370
Ark. 89, 97, 257 S.W.3d 543, 551 (2007). Further, as
discussed above, the City's appeal from the April 25
order was mooted by its payment of the penalty. Because the
City clearly failed to abide by the April 25 order of the
circuit court and we cannot review that order as a result of
the City's paying the penalty, the finding of contempt
was not clearly against the preponderance of the evidence.
The May 20, 2016 order is affirmed.
in part; dismissed in part.
C.J., and Baker, J., concur.
Josephine Linker Hart, Justice, dissenting.
cannot agree that any part of this case should be affirmed.
The circuit judge had absolutely no authority under Arkansas
Civil Procedure Rule 11 to impose the original sanction.
Moreover, assuming-without conceding-that the circuit court
had subject matter jurisdiction to impose a sanction under
Rule 11, the circuit court erred by imposing the sanction
against the City of Little Rock without the notice required
under the rule. Further, I dispute that the payment of the
$10, 000 fine supports this court's finding of fact that
it was "intended as a resolution of the matter, "
simply because it was paid. Finally, I cannot even conceive
of how the events that transpired in this case can justify a
finding that the Little Rock City Attorney was in contempt.
Rule 11 does not give the circuit judge any authority
whatsoever to impose sanctions for filing a motion for a
continuance or telling the circuit judge that you are having
difficulty preparing for trial. The purpose of Rule 11 is to
hold the persons signing pleadings and other papers filed
with the court accountable for the veracity and legal
validity of the allegations contained therein. While it is
true that the attorney of record in this case filed four
continuances, she alleged each time that she was experiencing
difficulty in meeting deadlines because of "issues"
relating to her cancer. All of her motions were unopposed,
except for the last one, and even the circuit judge did not
question the attorney's veracity with concerning her
severe health problems.
regard to the fourth continuance that she filed, which was
opposed, at the hearing on the motion, it was revealed that
the plaintiff herself had not completed all of the scheduled
requirements that the circuit judge had imposed on the
parties. In any event, it was the deputy city attorney who
was experiencing health problems that hindered her ability to
complete discovery. Nonetheless, the attorney for the City of
Little Rock never stated that she would be unable to go to
trial on the scheduled date. However, whether the attorney
was fully prepared for trial is outside the scope of the
conduct that Rule 11 was intended to regulate. The plain text
of Rule 11 proves this point:
11. SIGNING OF PLEADINGS, MOTIONS, AND OTHER PAPERS;
Signature. Every pleading, written motion, and other paper of
a party represented by an attorney shall be signed by at
least one attorney of record in his or her individual name,
whose address shall be stated. A party who is not represented
by an attorney shall sign his or her pleading, motion, or
other paper and state his or her address and telephone
number, if any. Except when ...