FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23CV-16-802]
HONORABLE CHRISTOPHER RAY CARNAHAN, JUDGE
Accordingly, I dissent. Elias, Books, Brown & Nelson,
P.C., by: William K. Elias and Wyatt D. Swinford, for
Hogue; and Taylor & Taylor Law Firm, P.A., by: Andrew M.
Taylor and Tasha C. Taylor, for appellees.
COURTNEY HUDSON GOODSON, Associate Justice.
DeSoto Gathering Company, LLC ("DeSoto") appeals
from the Faulkner County Circuit Court's order granting
the motion to dismiss filed by appellees Angela Hill, in her
official capacity as Faulkner County Assessor; the Faulkner
County Board of Equalization, Faulkner County, Arkansas; the
Faulkner County Treasurer; and the Faulkner County Tax
Collector (collectively, "Hill"). For reversal,
DeSoto argues (1) that the circuit court erred in dismissing
DeSoto's refund claim pursuant to Arkansas Rule of Civil
Procedure 12(b)(8) (2017) and (2) that the circuit court also
erred by finding that DeSoto's claim for a refund was
barred by the doctrine of res judicata. We reverse and
owns gas compressors, gas-gathering systems, and related
equipment that are subject to ad valorem property tax in
Faulkner County, Arkansas. In 2012, after receiving the
Faulkner County Assessor's valuation of its personal
property, DeSoto challenged the assessments before the
Faulkner County Board of Equalization. The board affirmed the
assessments, and DeSoto appealed to the Faulkner County
Court. After the county court upheld the assessments, DeSoto
then appealed to the Faulkner County Circuit Court in January
2013. In this "valuation appeal, " DeSoto alleged
that the assessor's method of estimating the fair market
value of its property was defective in several respects.
November 5, 2015, Hill filed a motion to dismiss DeSoto's
valuation appeal, arguing that DeSoto had committed the
unauthorized practice of law because a nonattorney had signed
the petition for appeal. Hill asserted that the petition was
therefore null and void and that DeSoto had failed to perfect
a valid appeal to the county court. Furthermore, Hill
contended that because the county court never had
jurisdiction of the ad valorem appeal, the circuit court did
not acquire jurisdiction to hear the appeal. On August 16,
2016, the circuit court dismissed the valuation appeal for
lack of subject-matter jurisdiction.
the discovery process in the valuation appeal, DeSoto learned
that its Cove Creek property was actually located in Conway
County, even though the property had been included in the
2012 ad valorem assessment in Faulkner County. In addition,
DeSoto discovered a list of intangible property that it
claimed had been erroneously assessed by Hill. DeSoto met
with Hill in September 2013 to discuss these errors. Hill
agreed to correct the erroneous assessments for the 2013 and
2014 tax years but refused to remove them from the 2012
assessment. DeSoto then paid its 2012 taxes in October 2013
pursuant to an agreed escrow order in the valuation appeal.
December 1, 2015, DeSoto filed a claim in the Faulkner County
Court for a refund of its 2012 ad valorem taxes under
Arkansas Code Annotated section 26-35-901 (Repl. 2012). The
refund claim was based on the erroneous assessment of
DeSoto's Cove Creek personal property that was located in
Conway County and on the taxation of its exempt intangible
property. Hill filed a motion to dismiss the claim due to the
pendency of the 2012 valuation appeal in the Faulkner County
Circuit Court. Hill argued that the county court had no
choice but to dismiss the refund action under Arkansas Rule
of Civil Procedure 12(b)(8) because the earlier case involved
the same parties and arose out of the same occurrence. The
county court agreed and dismissed the refund action on May
appealed to the circuit court, and on August 24, 2016, Hill
again filed a motion to dismiss. She continued to assert that
the refund action should be dismissed under Rule 12(b)(8) due
to the 2012 valuation case. Although that case had recently
been dismissed on August 16, 2016, for lack of subject-matter
jurisdiction, Hill argued that the dismissal could still be
appealed by DeSoto. In addition, Hill contended that the
refund claim was barred by the doctrine of res judicata
because it could have been brought in the valuation case.
hearing on the motion to dismiss was held on February 13,
2017. On March 2, 2017, the circuit court entered an order
granting Hill's motion and dismissing DeSoto's refund
action. The court stated that both the refund action and the
2012 valuation appeal stemmed from the same transaction or
occurrence, which was the 2012 ad valorem tax assessment.
Thus, the circuit court found that the refund claims were
precluded by res judicata because they could have been raised
in the previously filed and dismissed valuation case.
Further, the court ruled that it was required to dismiss the
refund matter pursuant to Rule 12(b)(8) because the valuation
case was still pending on appeal before this
court.DeSoto filed a timely notice of appeal from
the circuit court's order of dismissal.
appeal, DeSoto first argues that the circuit court erred by
dismissing its refund claim under Arkansas Rule of Civil
Procedure 12(b)(8). We generally review a circuit court's
decision on a motion to dismiss under an abuse-of-discretion
standard. Ballard Group, Inc. v. BP Lubricants USA,
Inc., 2014 Ark. 276, 436 S.W.3d 445; Jonesboro
Healthcare Ctr., LLC v. Eaton-Moery Envtl. Servs., Inc.,
2011 Ark. 501, 385 S.W.3d 797. However, the construction of a
court rule is a question of law, which we review de novo.
to Rule 12(b)(8), the "pendency of another action
between the same parties arising out of the same transaction
or occurrence" can be raised as a defense to a complaint
filed by a plaintiff. The Reporter's Note to Rule 12
indicates that this provision is based on an earlier statute,
Arkansas Statutes Annotated section 27-1115(3) (Repl. 1962),
which listed as one of the grounds for a demurrer,
"[t]hat there is another action pending between the same
parties for the same cause[.]" We have consistently
interpreted that statute, as well as Rule 12(b)(8), as
applying only to prohibit identical actions from proceeding
between identical parties in two different courts of this
state. Potter v. City of Tontitown, 371 Ark. 200,
264 S.W.3d 473 (2007); Patterson v. Isom, 338 Ark.
234, 992 S.W.2d 792 (1999); Nat'l Bank of Commerce v.
Dow Chem. Co., 327 Ark. 504, 938 S.W.2d 847 (1997);
Tortorich v. Tortorich, 324 Ark. 128, 919 S.W.2d 213
(1996). We have indicated that the matter is one of venue;
thus, Rule 12(b)(8) is not implicated when one of the actions
is in a different jurisdiction, such as federal court.
Potter, supra; Dow Chem.,
supra. In Mark Twain Life Insurance Corp. v.
Cory, we stated that the rule is intended to discourage
a multiplicity of suits and to protect the defendant from
"double vexation from the same cause." 283 Ark. 55,
59, 670 S.W.2d 809, 812 (1984). We have also noted that under
our common law, when the same action is pending in different
courts with concurrent jurisdiction, the first court to
exercise jurisdiction rightfully acquires control.
Patterson, supra; Tortorich,
supra. This prevents two different judgments with
respect to the same issues, which would lead to confusion and
"calamitous results." Patterson, 338 Ark.
at 240, 992 S.W.2d at 796.
contends that Rule 12(b)(8) did not apply to bar its refund
action because its claim for a refund was a separate and
distinct claim from that raised in its valuation case.
According to DeSoto, the first action sought to adjust the
valuation of its properly taxable property pursuant to the
statutory procedure set forth in Arkansas Code Annotated
sections 26-27-317 and 26-27-318 (Repl. 2012), while its
subsequent refund action sought a return of taxes paid on
nontaxable property as is authorized under Arkansas Code
Annotated section 26-35-901 (Repl. 2012). Thus, DeSoto argues
that even though the ...