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City of Little Rock v. Circuit Court of Pulaski County

Supreme Court of Arkansas

June 8, 2017

CITY OF LITTLE ROCK, ARKANSAS APPELLANT
v.
CIRCUIT COURT OF PULASKI COUNTY APPELLEE

         APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT [60CV-14-2065] HONORABLE TIMOTHY DAVIS FOX, JUDGE

          Thomas M. Carpenter, Office of the City Attorney, for appellant.

          Leslie Rutledge, Att'y Gen., by: Colin R. Jorgensen, Ass't Att'y Gen., for appellee.

          ROBIN F. WYNNE, Associate Justice.

         The 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.

         In May 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 continuance.

         On 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 list.

         On 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 calendar days.

          On May 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.

         Appellee 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.

         Having 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.[1] 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.[2] 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 moot.[3]

         The 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).[4] 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).

         The 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.[5] 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).[6] 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.[7]

         Affirmed in part; dismissed in part.

          Kemp, C.J., and Baker, J., concur.

          Hart, J., dissents.

          Josephine Linker Hart, Justice, dissenting.

         I 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.

         First, 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.

         With 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:

         RULE 11. SIGNING OF PLEADINGS, MOTIONS, AND OTHER PAPERS; SANCTIONS

         (a) 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 ...


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