FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CV-16-341]
HONORABLE BRADLEY LEWIS KARREN, JUDGE
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.
and Klappenbach, JJ., agree.
WAYMOND M. BROWN, JUDGE
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.
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,
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.
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. 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 § 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 ...