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Swindle v. State Farm Mutual Automobile Insurance Co.

Court of Appeals of Arkansas, Division IV

November 15, 2017

KEN DAVID SWINDLE APPELLANT
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY APPELLEE

         APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CV-16-341] HONORABLE BRADLEY LEWIS KARREN, JUDGE

          Baker Schulze Murphy & Patterson, by: J.G. "Gerry" Schulze; and Ken Swindle, for appellant.

          Munson, Rowlett, Moore & Boone, P.A., by: Emily M. Runyon, for appellee.

          Virden and Klappenbach, JJ., agree.

          WAYMOND M. BROWN, JUDGE

         Appellant Ken Swindle appeals the Benton County Circuit Court's order dismissing his complaint against appellee State Farm. He contends that the court erred in finding that his claim was barred by res judicata. We agree and reverse and remand.

         Appellant, an attorney, filed a lawsuit (CV-13-1501-6) on behalf of Dulce Estevez in the Benton County Circuit Court and subsequently voluntarily dismissed that case in August 2014. Estevez refiled the lawsuit pro se (CV-15-1692-6) on November 6, 2015. She accepted a settlement offer from State Farm on November 11, 2015, in the amount of $2, 000. Estevez filed a petition to determine lien on February 4, 2016. In that petition, she asked the court to determine that appellant's lien was invalid or that the amount claimed was incorrect. Appellant was notified about the petition via hand delivery and an email. He advised the court that he would attend the hearing only if he was made a party or was subpoenaed. The hearing on the petition took place on March 29, 2016. The court filed an order on April 15, 2016, stating in pertinent part:

7.That this case was filed previously as Dulce Estevez v. Phyllis Allard, CV-13-1501-6. That in a telephone conference with the Court on August 12, 2014, Ken Swindle represented that he did not represent the plaintiff in the previous case. Ken Swindle then filed a Motion and Brief to Voluntarily Dismiss, representing he had the authority to dismiss the case, and the case was dismissed on August 13, 2014.
8. That according to the plaintiff, she did not give anyone authority to dismiss the case. . . .
9. That the Court finds that Ken Swindle was given notice of the Petition to Determine Lien, and that a hearing was being scheduled on the Petition, and Mr. Swindle neither entered an appearance nor appeared at the hearing.
10. That the Court finds that Mr. Swindle's [sic] cannot represent to the court that he does not represent the plaintiff, and then claim an attorney's lien on a settlement entered into by the plaintiff and defendant. The court finds that Mr. Swindle's representation that he did not represent the plaintiff serves as a waiver of any claim for an attorney's lien.
11. The Court hereby finds that any attorney's lien claim by Ken Swindle on the settlement in this case is invalid, and that State Farm is hereby ordered to issue a settlement payment to the plaintiff in the amount of $2, 000.

         Appellant filed a complaint against State Farm on March 8, 2016, prior to the hearing on Estevez's petition, regarding attorney's fees for a separate client. He amended the complaint on March 28, 2016, to include his claim of an attorney's lien of $800 plus $354.44 in costs in Estevez's case. In total, he requested $3, 696 for litigation costs, attorney's fees, punitive damages, and interest associated with the Estevez case.[1] State Farm filed an answer to the amended complaint on April 5, 2015, seeking to either have the complaint transferred or dismissed. State Farm filed a motion for judgment on the pleadings and supporting brief on May 2, 2016, contending that appellant's claim concerning Estevez was barred by issue preclusion because appellant's lien was declared invalid by an order filed on April 15, 2016. Appellant filed a response and affidavit on May 5, 2016, contending that res judicata was inapplicable because none of the elements of res judicata could be satisfied in this case. Appellant and State Farm subsequently settled the claim concerning the initial client, and a partial order of dismissal with prejudice was filed on November 7, 2016. A hearing took place on January 3, 2017, regarding appellant's rights to a lien in the Estevez case. The court dismissed appellant's complaint against State Farm in an order filed on January 12, 2017, stating in pertinent part:

Upon consideration of the pleadings, the facts and evidence offered in support thereof, including arguments by Mr. Smiley and Mr. Swindle, this Court finds that the Court in Estevez v. Allard, CV-15-1692-6, had jurisdiction pursuant to Arkansas Code Annotated ยง 16-22-304(e) and invalidated Mr. Swindle's attorney's lien. The appropriate avenue for Mr. Swindle to seek redress would have been to appeal the final order in [that ...

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