Elliott v. Boone County Independent Living, Inc.

Genevieve ELLIOTT, Personal Representative of
the Estate of Diana Sue McGowen, Deceased v.
BOONE COUNTY INDEPENDENT LIVING, INC.

CA 96-18                                           ___ S.W.2d ___

                  Court of Appeals of Arkansas
                       Divisions I and II
                 Opinion delivered March 5, 1997


1.   Appeal & error -- argument not considered on appeal in absence of
     objection in trial court -- rule applicable to questions regarding
     attorney's fees. -- Arkansas courts have no plain-error rule;
     subject to very limited exceptions, the rule in this state is
     that an argument for reversal will not be considered on appeal
     in the absence of an appropriate objection in the trial court;
     the rule requiring an objection below is no less applicable to
     questions regarding the award of attorney's fees.

2.   Jurisdiction -- circuit court did not lack subject-matter jurisdiction over
     question of attorney's fees -- empowered to hear and determine requests for
     costs and fees. -- The appellate court concluded that the circuit
     court did not lack subject-matter jurisdiction over the
     question of attorney's fees where circuit courts are vested
     with subject-matter jurisdiction of wrongful-death actions, as
     in this case, and are also empowered to hear and determine
     requests for costs and fees growing out of actions within its
     assigned jurisdiction; the appellate court noted that while
     the circuit court may have erred in its decision or proceeded
     irregularly in exercising its assigned jurisdiction, that was
     entirely different from the matter of its jurisdiction to
     determine whether to exercise that power or not.

3.   Appeal & error -- conflicting case overruled. -- Noting the case of
     Lewallen v. Bethune, 267 Ark. 976, 593 S.W.2d 64 (Ark. App.
     1980), where, among other things, the court reversed an award
     of attorney's fees despite the lack of an objection in the
     trial court, the appellate court reversed the earlier decision
     to the extent that it conflicted with the present opinion.


     Appeal from Boone Circuit Court; Gary Isbell, Judge; affirmed.
     Jerry D. Patterson, for appellant.
     Davis & Goldie, by: James E. Goldie, for appellee.

     John Mauzy Pittman, Judge.
     The appellant, Genevieve Elliott, appeals from an order
staying the proceedings on her wrongful-death complaint against
appellee, Boone County Independent Living, Inc., until appellant
paid appellee's costs and attorney's fees in connection with a
previously dismissed wrongful-death action.  Appellant argues that
the trial court was without authority to make payment of attorney's
fees a condition to having the stay lifted.  Because we conclude
that appellant's point was not preserved for appeal, we do not
address it on its merits, and we affirm.
     Appellant first filed her wrongful-death lawsuit against
appellee on May 7, 1993.  On February 10, 1994, appellant took a
voluntary nonsuit pursuant to Ark. R. Civ. P. 41.  Appellant
refiled the action on February 9, 1995.  Appellee answered and,
citing Ark. R. Civ. P. 41(d), moved for an order staying the
proceedings until appellant paid appellee $105.68 in costs and
$4,055.68 in attorney's fees associated with the first action. 
Appellant did not respond to the motion.  Subsequently, the trial
court entered an order reciting the above facts and giving
appellant until July 14, 1995, to respond to appellee's motion. 
Again, appellant filed nothing.  On September 7, 1995, the trial
court, specifically noting the lack of any response by appellant to
appellee's motion, entered an order staying the proceedings until
appellant paid appellee $105.68 in costs and $3,000.00 in
attorney's fees.  This appeal followed.
     Rule 41(d) of the Arkansas Rules of Civil Procedure provides
as follows:
          Costs of Previously Dismissed Action.  If a
     plaintiff who has once dismissed an action, or who has
     suffered an involuntary dismissal in any court, commences
     an action based upon or including the same claim against
     the same defendant, the court may make such order for the
     payment of costs of the action previously dismissed as it
     may deem proper and may stay the proceedings in the
     action until the plaintiff has complied with the order.
Appellant argues that this rule does not authorize trial courts to
order the payment of attorney's fees as "costs."  Appellant notes
that the supreme court has not decided this issue, see Transit
Homes, Inc. v. Bellamy, 287 Ark. 487, 701 S.W.2d 126 (1985), but
cites Brady v. Alken, 273 Ark. 147, 617 S.W.2d 358 (1981), for the
general proposition that attorney's fees are not to be allowed as
costs except as provided by statute or court rule.  See also
Arkansas Department of Human Services v. Kistler, 320 Ark. 501, 898 S.W.2d 32 (1995).  We recognize that appellant's argument is a
strong one and may well have merit.  However, because appellant
failed to raise the issue in any way before the trial court, we are
unable to address it.
     It has long been held that Arkansas courts have no plain-error
rule.  Subject to very limited exceptions, none of which are
applicable here, the rule in this state is that an argument for
reversal will not be considered on appeal in the absence of an
appropriate objection in the trial court.  Wicks v. State, 270 Ark.
781, 606 S.W.2d 366 (1980); see Lynch v. Blagg, 312 Ark. 80, 847 S.W.2d 32 (1993); Sturgis v. Lee Apparel Co., Inc., 304 Ark. 235,
800 S.W.2d 719 (1990).  The rule requiring an objection below is no
less applicable to questions regarding the award of attorney's
fees.  See Farm Bureau Mutual Insurance Co. v. David, 324 Ark. 387,
921 S.W.2d 930 (1996); Benton v. Barnett, 53 Ark. App. 146, 920 S.W.2d 30 (1996).  Under the particular facts of this case, where
the motion for fees was not acted upon for over six months, during
which time the trial court specifically invited appellant to
respond to the motion, application of the general rule is
especially appropriate.
     It was argued in our conference of this case that the trial
court lacked "subject-matter jurisdiction" to award attorney's fees
under Ark. R. Civ. P. 41(d), and that the issue may, therefore, be
raised for the first time on appeal.  We conclude, however, that
the court did not lack subject-matter jurisdiction over the
question of attorney's fees.  
     In Banning v. State, 22 Ark. App. 144, 737 S.W.2d 167 (1987),
we explained:
          The rule of almost universal application is that
     there is a distinction between want of jurisdiction to
     adjudicate a matter and a determination of whether the
     jurisdiction should be exercised.  Jurisdiction of the
     subject matter is power lawfully conferred on a court to
     adjudge matters concerning the general question in
     controversy.  It is power to act on the general cause of
     action alleged and to determine whether the particular
     facts call for the exercise of that power.  Subject
     matter jurisdiction does not depend on a correct exercise
     of that power in any particular case.  If the court errs
     in its decision or proceeds irregularly within its
     assigned jurisdiction, the remedy is by appeal or direct
     action in the erring court.  If it was within the court's
     jurisdiction to act upon the subject matter, that action
     is binding until reversed or set aside.  [Citations
     omitted.]

Id. at 149, 737 S.W.2d  at 170; see Leinen v. Arkansas Department of
Human Services, 47 Ark. App. 156, 886 S.W.2d 895 (1994); In re:
Adoption of D.J.M., 39 Ark. App. 116, 839 S.W.2d 535 (1992); see
also Birchett v. State, 303 Ark. 220, 795 S.W.2d 53 (1990).
     Clearly, subject-matter jurisdiction of wrongful death
actions, such as are involved here, is vested in the circuit courts
of this state.  Just as clearly, the circuit court is also
empowered with authority to hear and determine requests for costs
and fees growing out of actions within its assigned jurisdiction. 
While the court here may have erred in its decision or proceeded
irregularly in exercising its assigned jurisdiction, that is
entirely different from the matter of its jurisdiction to determine
whether to exercise that power or not.
     Finally, we note the case of Lewallen v. Bethune, 267 Ark.
976, 593 S.W.2d 64 (Ark. App. 1980).  There, among other things,
this court reversed an award of attorney's fees despite the lack of
an objection in the trial court.  To the extent that Lewallen
conflicts with this opinion, it is wrong and is overruled.
     Affirmed.
     Robbins, C.J., and Rogers, Stroud, and Neal, JJ., agree.
     Griffen, J., dissents.


=================================================================
                Wendell Griffen, Judge, dissents.


A good law is one that holds, whether you recognize it or
not; a bad law is one that cannot, however much you
ordain it.  -- John Ruskin

     Today a majority of our Court has decided to disregard a good
law, yet ordain one that stands 140 years of Arkansas precedent on
its head; one that contravenes the overwhelming body of American
jurisprudence regarding the shifting of attorney's fees, overrules
a decision of this very court in a case directly on point, ignores
an eighty-year-old decision by the Arkansas Supreme Court, and
cannot be rationally justified alongside the rest of Arkansas law
on shifting attorneyþs fees.  Rather than recognize and follow the
good law, the majority has decided to uphold a result that a trial
court had neither the right nor the power to enter merely because
the appellant failed to object to it, as if a trial court is
somehow empowered to do a blatantly unauthorized act and an
appellate court has no duty to reverse that fundamental error when
a litigant has not objected to it below.  I respectfully dissent
from the unjust result reached today, the convoluted reasoning on
which it rests, and the unsound rule of law that it unnecessarily
inflicts upon our entire civil litigation process.
     Appellant filed a wrongful-death suit in Searcy County that
was later transferred to Boone County.  She then took a voluntary
nonsuit and later refiled the action in Boone County.  The appellee
answered and separately moved to stay the proceedings pursuant to
Rule 41(d) of the Arkansas Rules of Civil Procedure, requesting
that costs of $105.68 and attorneyþs fees of $3,950.00 be imposed
to lift the stay.  The trial court eventually entered an order
granting the stay until appellant paid costs of $105, and
attorneyþs fees of $3,000.  Appellant did not submit a brief or
objection to the trial court concerning the attorneyþs fee aspect
of the order before it was entered, although the trial court
entered an order that set a deadline for filing letter briefs
regarding appelleeþs motion to stay proceedings and award of costs,
stating that it would render an opinion after reviewing the file
and briefs.  Appellant has now appealed the attorneyþs fee aspect
of the order, and the majority has decided to affirm the trial
court despite the reality that neither Rule 41(d) nor any other
Arkansas authority permits attorneyþs fees to be included within
the meaning of þcosts.þ
     Ark. R. Civ. P. 41(d) states:
Costs of Previously Dismissed Action.  If a plaintiff who
has once dismissed an action, or who has suffered an
involuntary dismissal in any court, commences an action
based upon or including the same claim against the same
defendant, the court may make such order for the payment
of costs of the action previously dismissed as it may
deem proper and may stay the proceedings in the action
until the plaintiff has complied with the order.
Rule 41(d) authorizes a trial court to order that þcosts of the
action previously dismissedþ be paid.  It does not authorize the
trial court to order the payment of þattorney's feesþ for the
previously dismissed action.  Arkansas law is clear that the term
þcostsþ does not ordinarily include attorney's fees, whether the
term is used in a statute (see Arkansas Dep't. of Human Servs. v.
Kistler, 320 Ark. 501, 898 S.W.2d 32 (1995)), or when it appears in
a rule of civil procedure (see Clawson v. Rye, 281 Ark. 8, 661 S.W.2d 354 (1983)). 
     Nevertheless, the majority has decided to affirm the trial
court because appellant did not challenge its assessment of
attorneyþs fees.  I certainly agree that appellant had ample notice
that this issue was before the trial court and adequate opportunity
to object to the imposition of attorney's fees as a condition to
lifting the stay.  However, one need not condone appellantþs
inexplicable failure to file a brief or otherwise object to the
imposition of attorney's fees in order to question the right and
power of the trial court, in the first instance, to impose an order
to pay the other sideþs legal fees under the notion of þcostsþ for
purposes of Rule 41(d).  Indeed, our court dealt with this very
situation in Lewallen v. Bethune, 267 Ark. 976, 593 S.W.2d 64 (Ark.
App. 1980).
     In Lewallen, a chancellor assessed costs for lost wages and
expenses of witnesses who had not been subpoenaed to testify as
well as attorney's fees totaling $2,743.50 against a party for
dilatory tactics in filing a motion to recuse two days before trial
in an action that had been pending for years.  The attorney's fee
portion of that award was for $1,365.08, as payment for a Kentucky
attorney who had traveled to attend the trial, and who had spent
substantial time in trial preparation.  Our opinion specifically
noted that no objections were made by the appellants to the hearing
or to any ruling or finding that the chancellor made, including his
findings and order allowing attorney's fees, lost wages and
expenses of the witnesses who were present and ready to testify,
but who had not been subpoenaed.  Despite the absence of an
objection by the appellants and despite the fact that no final
judgment had been rendered on the merits of the case, we reached
the merits of the appeal and reversed the chancellorþs order
granting the attorneyþs fee and costs associated with the
unsubpoenaed witnesses, holding that the lower courtþs action in
awarding judgment for the challenged items was appealable under the
rule that a judgment granting or denying costs is appealable when
the power of the court to assess certain items of cost is at issue. 
Id. 267 Ark. at 984, 593 S.W.2d  at 68 (emphasis in original text). 
     Lewallen v. Bethune also contains a succinct and authoritative
exposition of the Arkansas law that follows the general rule that
extraordinary expenses such as attorneyþs fees are distinguishable
from, and therefore not recoverable as, ordinary costs.  This has
been the law in Arkansas since before the Civil War.  See Temple v.
Lawson, 19 Ark. 148 (1857).  As Judge Pilkinton wrote in Lewallen,
the right to recover attorneyþs fees from oneþs opponent in
litigation as a part of the litigation costs does not exist at
common law and is not allowable without a statute, court rule, or
some agreement expressly authorizing the taxing of attorney's fees
in addition to the ordinary court costs.  Lewallen, 267 Ark. at
985.  Our legal respect for this proposition was so high and strong
that the Arkansas Supreme Court for many years held that even a
provision in a promissory note that permitted the holder to recover
his attorneyþs fees was contrary to public policy.  Id. at 986. 
That judicial position was not superseded until the enactment of
Act 350 of 1951.  Id.  Even since that time, however, the appellate
courts of this state have consistently held that recovery of
attorney's fees as þcostsþ is not allowed except when expressly
provided by statute or court rule.  City of Hot Springs v.
Creviston, 288 Ark. 286, 705 S.W.2d 415 (1986); Damaron v.
University Estates, 295 Ark. 533, 750 S.W.2d 402 (1982); Fausett
Builders v. Globe Indemnity, 220 Ark. 301, 247 S.W.2d 469 (1952); 
Roberts v. Feltman, 55 Ark. App. 142, 932 S.W.2d 781 (1996).
     In Labat v. Dugan Piano Co., 130 Ark. 572, 198 S.W. 125
(1917), the Arkansas Supreme Court addressed the very subject about
which the majority is mistaken, i.e., whether a party is barred
from obtaining appellate review of trial court judgments that are
void on their face.  Labat involved an appeal from the entry of
summary judgment against the owner of a piano and her sureties
after the owner had been sued for the purchase price of the piano. 
After an adverse decision before a justice of the peace, the owner
appealed to circuit court and posted a surety bond that provided
for her to deliver the piano to the sheriff upon demand in case of
an adverse result at trial in circuit court.  The circuit court
trial resulted in a jury verdict against Labat for $220, plus
interest.  The circuit court then entered judgment against Labat
for the amount of the verdict, declared that judgment to be a lien
on the piano, and also entered personal judgment against Labat and
the sureties on her bond.  Although a motion for new trial was made
and overruled, the motion did not challenge the trial court's
action in rendering a personal judgment against the appellant and
her sureties on the bond.  When Labat challenged the trial court's
summary judgment in her appeal to the supreme court, the appellee
argued, as does the appellee before us, that the supreme court
could not review the trial court ruling because no exception was
saved when the judgment was entered.  The supreme court rejected
that argument by the following statement in its decision to reverse
the summary judgment:
     It is urged by counsel for appellee that this ruling
of court can not be reviewed here for the reason that no
exception was saved at the time and embraced in the
motion for new trial.  The judgment is to that extent
void on its face, because it is unwarranted.  Therefore,
no exceptions were necessary.

     It may be likened to a judgment by default upon
pleadings which do not state a cause of action, and the
error of the court, therefore, appears on the face of the
record.  The erroneous action of the court in rendering
this judgment was not one of the things which occurred
during the progress of the trial to which exceptions must
have been saved in order to call for a review in this
court.  It was, therefore, unnecessary to note exceptions
at the time or to embody the objections in a motion for
new trial.

Id. at 575, 198 S.W.  at 126.
     As the supreme court decided and pronounced in Labat almost
eighty years ago, when a trial court takes action that is void on
its face, it is not necessary for a party to object in order to
preserve the issue for appellate review.  In the case before us,
the trial court acted outside its power and right when it awarded
an attorney's fee as court costs.  Just as the trial court in Labat
lacked the right or power to award summary judgment on the
appellant's surety bond, the trial court in this case lacked the
right or power to assess an attorney's fee against appellant as
costs under Ark. R. Civ. P. 41(d).  The attorney's fee award was
void on its face, so that judicial review cannot be prevented by
appellant's failure to object below.  The only way to avoid that
conclusion is to hold that trial courts may impose awards of
attorney's fees as costs contrary to 140 years of Arkansas law.
     The majority does not and cannot dispute the existence of the
longstanding Arkansas rule.  They must also acknowledge that the
Arkansas rule is consistent with the American rule concerning 
attorneyþs fees that provides for each party to bear the cost of
their own attorney.  Millsap v. Lane, 286 Ark. 439, 706 S.W.2d 378
(1986) (citing Trustees v. Greenough, 15 Otto 527, 105 U.S. 527, 26 L. Ed. 1157 (1982).  The appellee has cited no authority for the
novel notion that the general rule should be disregarded when
litigation is refiled by a plaintiff following a voluntary nonsuit,
and the majority has cited no Arkansas authority for that
proposition either.  Thus, the decision today must be seen as a new
rule of law permitting attorneyþs fees to be imposed as costs as a
condition to prosecuting a refiled action following a nonsuit if a
trial court decides to impose them and nobody objects to it. 
However,  nobody has explained how and why a trial court is somehow
now empowered with the right and power to do what it has heretofore
never been able to do in Arkansas, and without any statutory or
other authorization shown.  Instead, the majority opinion casually
overrules Lewallen and ignores Labat without giving any
justification for the radical new rule now announced.
     Like Athena, who in Greek mythology was born fully grown and
armed for battle from the brow of Zeus, the rule of law that the
majority today delivers to Arkansas litigants is born doing battle,
in this case against an unwitting plaintiff.  Unlike Athena, this
new rule is neither beautiful nor wise.  One need not be an
alarmist to contemplate the mischief that it will produce. 
Ordinarily, attorneyþs fees are not recoverable from an opposing
party in Arkansas unless a statute or court rule expressly permits
it, and then they are only recovered by the prevailing party after
something has been adjudicated, be it the merits of the litigation
or some material aspect of it.  However, the majority today
introduces a new creature -- the attorneyþs fee that is recovered
without anything being adjudicated, before the merits of a lawsuit
have been decided (the appellee merely filed its answer and
followed it with a motion to stay the lawsuit pending payment of
the attorney's fee incurred in the previously dismissed action),
and without any legal basis for ordering the opposing party to pay
it.  The appellee in this wrongful-death action is now being
awarded a $3,000 fee from appellant merely because appellant did
what the Arkansas Rules of Civil Procedure permit, namely take a
voluntary nonsuit.  Of course, no one seriously thinks that if
appellant ultimately recovers on the merits the trial court will
have the authority to refund any part of the amount that it has now
been upheld in taking.  Moreover, neither the appellee nor the
majority can explain how a trial court is somehow authorized and
empowered to award an attorney's fee as costs merely because the
adverse party fails to object to it.
     One would also think that the fact that the rule announced
today is manifestly incongruent with the rest of Arkansas' civil
procedure concerning attorneyþs fees would militate against its
promulgation.  Before today, the only provisions of the Arkansas
Rules of Civil Procedure that authorize the recovery of attorneyþs
fees from an adverse litigant were punitive.  Ark. R. Civ. P. 37
authorizes a trial court to award reasonable attorneyþs fees as a
sanction against a party that fails to make discovery in violation
of discovery rules after having been ordered to do so by the court. 
Ark. R. Civ. P. 11 authorizes a trial court to award attorneyþs
fees as a disciplinary sanction against litigants and their
attorneys who sign pleadings and other papers that have no proper
purpose other than to harass other litigants, cause unnecessary
delay, or cause needless increase in the cost of litigation.  Both
Rule 11 and Rule 37 require judicial findings that the party
ordered to pay attorneyþs fees has engaged in prohibited conduct. 
In fact, Rule 11 provides that the trial court shall impose an
appropriate sanction, including attorneyþs fees, whenever it finds
that a pleading, motion, or other paper has been signed in
violation of the rule.  Nowhere do the rules of civil procedure
authorize trial courts to award attorneyþs fees against a litigant
for doing something that our rules permit.  If the appellant before
us nonsuited her wrongful-death action in Searcy County and refiled
it in Boone County to comply with some aspect of Arkansas law, then
todayþs decision truly defies reason because she will now be
penalized, not merely because she did what Arkansas law and civil
procedure permit, but because she did what Arkansas law and civil
procedure demand.  I cannot imagine a more unreasonable result or
rule.
     The majority explains its decision to insulate the trial
courtþs ruling from reversal by resorting to the truism that a
party must make a timely challenge to trial court error in order to
preserve the right to challenge that error on appeal.  The general
rule requiring that timely objections be raised to trial court
rulings in order to preserve the right to appeal them is meant to
protect trial courts from being ambushed concerning rulings that
they may erroneously make, but which they have the right or power
to make in the first instance.  Put differently, the general rule
means that trial courts will not be reversed for making erroneous
rulings on matters that they have the right or power to decide when
an adversely affected party has failed to protest.  However, the
Labat holding shows that there is a clear difference between an
erroneous trial court ruling on a matter that the court has the
right or power to decide (as in whether to receive a matter in
evidence) and a ruling that is unlawful because the trial court had
no right or power to make it (as in whether to award attorneyþs
fees absent explicit statutory or rule authority).  If this
situation involved an erroneous application of a statute or court
rule that permits attorneyþs fees to be paid to a defendant such as
appellee when a previously nonsuited action has been refiled, then
our time-honored practice of rejecting appeals based on alleged
errors not raised in timely fashion before the trial court would be
proper and reasonable even if the trial court had incorrectly
applied the rule.  To view this case in that light, however, is
plainly wrong given the mountain of authority to the contrary.
     Moreover, because it is obvious that the trial court had no
right or power to award attorneyþs fees as costs to appellee,
either under Rule 41(d) or otherwise, the real issue before us is
not whether appellant should have objected below, but whether we
have a duty to correct trial court errors brought to our attention
involving blatantly ultra vires conduct.  The upshot of the
decision reached today is that appellate courts have no duty to
reverse rulings that are beyond the scope or which exceed the legal
power of trial courts when they are presented to us in appeals
brought by adversely affected parties.  This radical philosophy
deserves honest criticism, especially in light of the Labat and
Lewallen holdings.  In a constitutional democracy the judicial
power--like every other governmental power--must come from
somewhere.  Judicial power is not self-existent.  Courts are
neither eternal nor omnipotent.  Rather, it is a fundamental tenet
of American government dating to the Declaration of Independence
that governments and the courts within them derive their just
powers from the consent of the governed.  That truth is also stated
in the preamble to the Arkansas Constitution, and in the judicial
article of that document that specifically vests the supreme court,
circuit courts, and other designated courts with judicial power in
Arkansas.  The supreme court is expressly vested with
superintending power over circuit courts such as the trial court
from which this appeal has been taken. The Arkansas Court of
Appeals was created in 1979 by Amendment 58 to the Arkansas
Constitution, and the supreme court has decided that the appellate
jurisdiction of the Court of Appeals includes appeals such as the
one before us.   The people of Arkansas have emphatically and
deliberately determined that no trial court ruling is automatically
insulated from judicial review, and this certainly includes trial
court rulings that exceed the legal right or power of trial courts. 
The idea that an appellate court has no duty to reverse trial court
conduct that exceeds the legal power and rights vested in trial
courts is so fundamentally contrary to everything upon which
American jurisprudence and democracy is based that it is not
surprising that neither the majority nor appellee can cite any rule
of law for it.  What is surprising about that idea -- nay,
astounding -- is that the majority fails to comprehend the flagrant 
folly in holding, in effect, that an appellate court has no duty to
reverse a patently unlawful (as contrasted with a merely incorrect)
trial court ruling simply because an appellant failed to object to
the unlawful ruling below, thereby thumbing its nose at the
fundamental principle of derived governmental power upon which
American democracy, Arkansas government, and a recognized function
of judicial review is founded. 
     I foresee that the decision today will increase the delays and
expense involved with civil litigation.  Defending parties will
file motions to stay proceedings in refiled actions after nonsuits,
and will seek attorneyþs fees.  Even when the fee requests are met
with timely and strenuous objections by plaintiffs, needless time
and money will be wasted preparing, filing, and arguing objections
to the fee requests.  Trial courts that are already overworked and
understaffed will be forced to consider the motions, fee requests,
and objections (whether hearings are held or not).  All of this
will take time, and none of it will help resolve the merits of
lawsuits.  Of course, none of the fee requests can properly be
granted under Arkansas law as it has existed for more than 140
years, and which the misguided decision rendered today cannot
change; but thanks to the decision, defendants have everything to
gain and nothing to lose by filing the requests.
     In fact, defending parties will now insist that their
attorneys seek to recover attorneyþs fees in refiled actions
following nonsuits because doing so might produce the result
reached by the trial court in this case.  The idea of threatening
a plaintiff with the prospect of paying the cost for defending a
nonsuited case as a condition to prosecuting a refiled case will be
immensely popular.  If trial courts grant the fee requests (despite
lacking any legal authority for doing so), then plaintiffs will
properly appeal, and the already congested appellate docket will be
affected.  The irony is that virtually all of the motions and
appeals will (or should be) decided based upon the same law that
the majority has gone out of its way to avoid following in this
case.  The entire scenario will be a colossal waste of time, legal
skills, judicial resources, and client funds, and a disservice to
the cause of justice unlike any other known to recent memory of
jurisprudence in Arkansas.  
     I unapologetically declare the rule announced today bad and
wrong law, and will never condone it.  In the meantime, I hope that
this appellant will seek the relief she deserves from the Arkansas
Supreme Court by a petition for review.