General L. Alexander v. The First National Bank of McGehee

Annotate this Case
ca04-433

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

GENERAL L. ALEXANDER,

APPELLANT

V.

THE FIRST NATIONAL BANK OF MCGEHEE,

APPELLEES

CA04-433

September 15, 2004

APPEAL FROM THE CIRCUIT COURT OF DESHA COUNTY, ARKANSAS CITY DISTRICT,

NO. CIV02-37-5,

HON. JERRY E. MAZZANTI, JUDGE

DISSENTING OPINION ON DENIAL OF MOTION FOR SANCTIONS

Sam Bird, Judge, dissenting. This court, in a seven-to-five vote, has denied a motion by the appellee asking that we impose a sanction upon the appellant and his attorney pursuant to Rule 11 of the Arkansas Rules of Civil Procedure. Because I believe that this is a case in which sanctions should be imposed on the appellant's attorney, I dissent from the court's decision.

A discussion of the history of this case in the trial court and in the court of appeals is necessary to an understanding of the basis for my dissent. The factual scenario that gave rise to the commencement of this action in the trial court began in 2000 when First National Bank of McGehee (bank) was served with a writ of garnishment seeking the recovery of funds alleged to be held by the bank to the credit of appellant, General L. Alexander. The

underlying basis of the garnishment was a judgment that had been entered in 1994 in the Circuit Court of Drew County in favor of Ford Motor Credit Company (Ford) against Alexander in the amount of $6,381.80. The writ was directed to "1st National Bank, 500North Second Street, McGehee, AR 71654." The bank's timely answer to the writ revealed that it held $5,477.99 on deposit in Alexander's name. Alexander filed a motion to quash Ford's writ of garnishment against the bank, alleging that because the writ was directed to "1st National Bank" at its McGehee address, rather than to "The First National Bank of McGehee," the bank's official name, the writ of garnishment was invalid and the bank should not have accepted and answered it. Nonetheless, on November 11, 2000, the Drew County Circuit entered an order directing the bank to pay $5,477.99 to the attorney for Ford as credit on its judgment, and on December 15, 2000, the bank complied.

On March 26, 2002, Alexander filed a complaint in the Circuit Court of Desha County alleging that the bank had wrongly allowed Alexander's funds to be frozen in or withdrawn from the account that he maintained at the bank. Alexander charged that the bank should have resisted Ford's writ of garnishment because it was not directed to the bank in its official name, and that its failure to do so constituted negligence and breach of contract. Annexed to the complaint were a number of requests for admission. The bank timely responded to Alexander's complaint by the filing of a motion to dismiss the complaint pursuant to Ark. R. Civ. P. 12(b)(6), alleging that Alexander's complaint failed to state facts upon which relief could be granted and that the claim was barred by res judicata and collateral estoppel. The bank did not file responses to the requests for admission. On May 7, 2002, Alexander filed his response to the bank's motion to dismiss, in which he stood upon the allegations of his complaint and disputed the bank's assertion that his claim was barred by res judicata and collateral estoppel.

On September 16, 2002, Alexander filed a motion in which he requested that the court deem the requests for admission annexed to his complaint to be admitted because of the bank's failure to respond to them within the time allowed by Ark. R. Civ. P. 36(a). Almost fourteen months later, on November 5, 2003, an order was entered deeming the bank to have admitted the requests for admission due to its failure to timely respond to them. On November 21, 2003, an order was entered denying the bank's Rule 12 (b)(6) motion to dismiss.

On March 2, 2004, the court conducted a hearing, attended by counsel for both parties, on a motion by the bank to vacate the November 5, 2003, order by which the court had held that the bank was deemed to have admitted the requests for admission annexed to Alexander's complaint. On March 23, 2004, the court entered an order providing: (1) that its November 5, 2003, order deeming the bank to have admitted the requests for admission was vacated; (2) that the bank was allowed thirty days from the date of the hearing to answer the requests for admission; (3) that the November 21, 2003, order denying the bank's motion to dismiss was set aside and vacated; (4) that Alexander was allowed thirty days from the date of the hearing to amend his complaint or to decline to do so; and (5) that after the lapse of thirty days the bank could seek a hearing on its motion to dismiss. On April 15, 2004, Alexander filed his "Notice of (Interlocutory) Appeal" from the court's March 23, 2004, order.

On May 14, 2004, the bank moved to dismiss the appeal, arguing in its brief that the order appealed from was not a final order because it did not end the litigation or a separable part of it. Alexander responded that the court's March 23, 2004, order was appealable because "Arkansas appellate courts have other grounds than a final order to allow an appeal and it is Appellant's belief that such applies in this case." Although arguing that "there exists the question whether the filing of a Motion to Dismiss tolls the response time of Request for Admission," Alexander's response cited no authority why the trial court's March 23, 2004, order would be subject to an interlocutory appeal, and on June 23, 2004, this court, without dissent, granted the bank's motion to dismiss the appeal.

With its motion to dismiss the appeal, the bank also filed its motion for sanctions, arguing that Alexander and his attorney have initiated a frivolous proceeding and have taken a frivolous appeal. Alexander responded to the motion for sanctions, reiterating his contention that this appeal "involves a serious question of whether the filing of a Motion to Dismiss tolls the response time for requests for admission," and arguing that "[j]urisdiction should exists (sic) based upon Appellant's interpretation of Rule 2(a)(4) of the Arkansas Rules of [A]ppellate Procedure to include an Order which vacates an Order which deems Requests for Admission to be admitted."

This court unanimously agreed on June 23, 2004, that it lacked jurisdiction over Alexander's appeal because it was an attempt to pursue an unauthorized interlocutory, piecemeal appeal from an order of the trial court that merely vacated an earlier order, returned the parties to their pre-order status quo, and did not end the entire litigation or a separable part of it. I realize that it is often difficult to determine whether a particular trial court order falls within one of the sections of Ark. R. App. P. 2 so as to be appealable, either as final or interlocutory. However, it is my opinion that any reasonably competent attorney licensed to practice his profession in Arkansas would or should know that no section of Ark. R. App. P. 2 could be reasonably interpreted to mean that the trial court's order from which Alexander unsuccessfully attempted to appeal fell within any of the definitions of appealable orders as set forth in Rule 2.

Ark. R. Civ. P. 11 provides that an attorney's signature on any pleading, motion, or other paper constitutes his certification that the pleading, motion or paper "is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation"; and that when a pleading, motion, or other paper is signed in violation of the rule, the court "shall" impose upon the person who signed it, upon the represented party, or both, an appropriate sanction. I believe that a sanction should be imposed against Alexander's attorney in this case, and I respectfully dissent from the decision of this court declining to do so.

Pittman, Gladwin, Robbins and Vaught, JJ., join in this dissenting opinion.