FROM THE POPE COUNTY CIRCUIT COURT [NO. 58CV-15-109]
HONORABLE RUSSELL ROGERS, JUDGE
Burt Newell, for appellant.
Murphy, Thompson, Arnold, Skinner & Castleberry, by: Tom
Thompson and Kenneth P. "Casey" Castleberry; and
& Gillham, PLLC, by: Luther Oneal Sutter, for appellee.
J. GLADWIN, JUDGE
Shawn Harris's appeal of the March 31, 2017 order of the
Pope County Circuit Court denying his motion for summary
judgment on the basis of qualified immunity is before this
court a second time after we ordered rebriefing. See
Harris v. Parrish, 2018 Ark.App. 58. After reviewing the
new brief filed by Harris, specifically, the addition of the
requested material in the abstract, it appears that Harris
has sufficiently cured the deficiencies that caused the
rebriefing order, and we now are able to reach the merits of
Harris's claim that the trial court erred in denying his
motion for summary judgment based on the defense of qualified
immunity. Because genuine questions of material fact remain,
James Parrish originally filed suit against various Pope
County deputies, including Harris, Sheriff Aaron Duvall, and
State Trooper Wilson Short in the United States District
Court, Eastern District of Arkansas, Western Division. The
suit alleged that excessive force was used upon Parrish
during his arrest on April 14, 2012. Separate defendant
Trooper Short filed a motion for summary judgment alleging
that no excessive force was utilized against Parrish in his
arrest. That motion was granted, and immediately thereafter,
Parrish filed a voluntary nonsuit under Fed.R.Civ.P. 41.
Subsequently, the present underlying suit was filed in the
Pope County Circuit Court against the same defendants except
for Trooper Short. All defendants filed for summary judgment,
and following a hearing on the motions held on March 16,
2017, the trial court entered an order on March 31, 2017,
granting summary judgment based on qualified immunity to all
individually named defendants except for Harris. Harris filed
his timely notice of appeal on April 6, 2017.
Standard of Review and Applicable Law
appeal is pursued on an interlocutory basis pursuant to Ark.
R. App. P-Civ. 2(a)(10) (2017), which allows for an appeal to
be taken from a trial court to the Arkansas Supreme Court
from "an order denying a motion . . . for summary
judgment based upon the defense of . . . the immunity of a
government official." Generally, the denial of a motion
for summary judgment is neither reviewable nor appealable.
See Martin v. Hallum, 2010 Ark.App. 193, at 8, 374
S.W.3d 152, 158 (citing City of Fayetteville v.
Romine, 373 Ark. 318, 284 S.W.3d 10 (2008)). However,
this general rule does not apply when the refusal to grant a
motion for summary judgment has the effect of determining
that the appellant is not entitled to immunity from suit.
Martin, supra. The rationale justifying
such an interlocutory appeal is that the right to immunity
from suit is effectively lost if the case is permitted to go
to trial. Id.
issue of whether a party is immune from suit is purely a
question of law and is reviewed de novo. See Martin
and Romine, supra; see also Ark.
R. App. P.-Civ. 2(a)(10). In Martin, our supreme
court reiterated our general analysis regarding summary
Of course, our courts have repeatedly held that summary
judgment is appropriate when there are no genuine issues of
material fact, and the moving party is entitled to judgment
as a matter of law. Gentry [v. Robinson,
2009 Ark. 634, 361 S.W.3d 788]. On appellate review, we
determine whether summary judgment was appropriate based on
whether the evidentiary items presented by the moving party
in support of the motion leave a material fact unanswered.
City of Farmington v. Smith, 366 Ark. 473, 237
S.W.3d 1 (2006). We view the evidence in a light most
favorable to the party against whom the motion was filed,
resolving all doubts and inferences against the moving party.
[Smith v. Brt, 363 Ark. 126, 211 S.W.3d 485 (2005)].
Our review focuses not only on the pleadings but also on the
affidavits and other documents filed by the parties.
Dodson v. Taylor, 346 Ark. 443, 57 S.W.3d 710
(2001). In viewing the evidence in the light most favorable
to the party resisting the motion, we are not obliged to
ignore incontrovertible evidence that is depicted on a
videotape. Wallingford v. Olson, 592 F.3d 888 (8th
Cir. 2010) (citing Scott v. Harris, 550 U.S. 372,
127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)).
The issue of whether a party is immune from suit is reviewed
de novo on appeal. Romine, supra. Whether
summary judgment on grounds of immunity is appropriate on a
particular set of facts is purely a question of law.
Gentry, supra. Although the determination
of whether there is a genuine issue of material fact is a
question of law under these circumstances, it is a legal
question that sits near the law-fact divide. Id.
(citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009)).
Martin, 2010 Ark.App. 193, at 10-11, 374 S.W.3d at
Graham v. Underwood, 2017 Ark.App. 498, 532 S.W.3d
88, we stated that the purpose of summary judgment is not to
try the issues, but to determine whether there are any issues
to be tried. Id. If a moving party fails to offer
proof on a controverted issue, summary judgment is not
appropriate, regardless of ...