Wilson v. Smith
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Cite as 2009 Ark. App. 677
ARKANSAS COURT OF APPEALS
DIVISION II
No. CA09-241
Opinion Delivered
CHARLES WILSON
APPELLANT
V.
CECIL SMITH AND W&S
EXCAVATING
October 21, 2009
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT
[NO. CV-05-81/1]
HONORABLE MARION A.
HUMPHREY, JUDGE
APPELLEES
AFFIRMED
JOHN MAUZY PITTMAN, Judge
Charles W. Wilson appeals from the denial of his motion to reconsider an earlier order
of dismissal and to reinstate his lawsuit against appellees Cecil Smith and W&S Trucking. He
contends that the trial court’s action was an abuse of discretion and deprived him of due
process of law.
Appellant was injured in January 2002 when the vehicle in which he was a passenger
collided with a vehicle owned by W&S and driven by Smith. Appellant filed a complaint in
Pulaski County Circuit Court in January 2005 seeking damages from appellees. The
complaint was signed on appellant’s behalf by Arkansas attorney J. David Wall for the Bassett
Law Firm of Fayetteville. Below the signature line, the complaint also listed the names and
address of Tulsa, Oklahoma, attorneys Donald Smolen and Bryan Smith. Appellees filed their
answer to the complaint later that same month. The record reflects no further action in the
Cite as 2009 Ark. App. 677
court for more than a year. On March 29, 2006, the circuit judge sent a notice addressed to
Mr. Wall advising that some action needed to be taken in the case within fifteen days or it
would be subject to dismissal. See Ark. R. Civ. P. 41(b).1 Arkansas attorney James Graves,
also of the Bassett Law Firm, responded to the court with a letter stating that Mr. Wall had
recently passed away and that he (Mr. Graves) had sent a letter to the Oklahoma attorneys in
January 2006 notifying them of that fact and requesting that they obtain other Arkansas
counsel. Mr. Graves also stated to the circuit court that he had since written a second letter
to the Oklahoma attorneys and provided them with a copy of the court’s Rule 41(b) notice.
After no further contact from anyone purporting to represent appellant, the circuit court
entered an order on April 19, 2006, dismissing the case without prejudice pursuant to Ark.
R. Civ. P. 41.
Because the statute of limitations had by then run on appellant’s cause of action, he had
one year, or until April 19, 2007, in which to refile the action. Ark. Code Ann. § 16-56126(a) (Repl. 2005); see Carton v. Missouri Pacific Railroad Co., 295 Ark. 126, 747 S.W.2d 93
(1988) (an involuntary dismissal works as a nonsuit for purposes of the savings statute).
1
“In any case in which there has been a failure of the plaintiff to comply with these
rules or any order of court or in which there has been no action shown on the record for the
past 12 months, the court shall cause notice to be mailed to the attorneys of record, and to
any party not represented by an attorney, that the case will be dismissed for want of
prosecution unless on a stated day application is made, upon a showing of good cause, to
continue the case on the court’s docket. A dismissal under this subdivision is without
prejudice to a future action by the plaintiff unless the action has been previously dismissed,
whether voluntarily or involuntarily, in which event such dismissal operates as an adjudication
on the merits.”
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However, appellant took no action within one year. Instead, the record reflects no action
until January 2008, when newly associated Arkansas counsel, Eric Wewers, filed an “entry of
appearance” as an additional attorney for appellant. Appellees responded by noting that the
lawsuit had been dismissed in April 2006 and that there was no action pending in which an
appearance could be filed.
More than three months later, in April 2008, the new Arkansas attorney filed the
instant motion to reinstate appellant’s original complaint. Attached to the motion was an
affidavit from Oklahoma attorney Smolen in which he admitted knowledge of Mr. Wall’s
death as early as January 2006, when he admittedly received Mr. Graves’s letter of that month.
However, Mr. Smolen denied any knowledge of the court’s Rule 41(b) notice of inaction or
the subsequent order of dismissal until being notified of the same by new Arkansas counsel
in January 2008. Appellant argued in his motion that his injuries from the accident were
substantial and that the dismissal of his lawsuit “works a severe prejudice” on him. He further
argued, in a conclusory fashion, that the dismissal deprived him of his constitutional rights to
due process because the court failed to first send the Rule 41(b) notice to his Oklahoma
attorneys. Appellees responded that the court appropriately and timely notified the Arkansas
attorneys of record of the potential dismissal pursuant to Ark. R. Civ. P. 41; that the
Oklahoma lawyers were notified by Mr. Graves of Mr. Walls’s death, the need to associate
another Arkansas attorney, and the court’s Rule 41 notice; that, despite these facts, appellant
did nothing to keep up with the posture of his case or take any action in the court to refile
or reinstate the action until almost two years after the order of dismissal; and that, because
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more than ninety days had passed since the dismissal, the trial court lacked jurisdiction under
Ark. R. Civ. P. 60 to set aside the dismissal and reinstate appellant’s action.2 After a hearing
in November 2008, the circuit court denied appellant’s motion, ruling that it lacked
jurisdiction.
On appeal, appellant’s primary argument hinges on the assertion that the Oklahoma
lawyers were “attorneys of record” because their names were listed in the signature block at
the end of appellant’s original complaint; that the trial court was therefore obliged to send the
Rule 41(b) notice to the Oklahoma attorneys before dismissing the case for lack of activity;
and that application of Rule 60's jurisdictional time limitation in light of the court’s failure
to comply with that notice obligation violates appellant’s due process rights. Appellant
concedes, however, that “there is no constitutional violation when the proper procedure of
notice is provided under . . . [Rule] 41(b).”
We find no merit in appellant’s argument because we do not agree with his assertion
that the Oklahoma lawyers were “attorneys of record” for purposes of Rule 41(b). Smolen
and Smith are not licensed to practice law in Arkansas. Also, they admit that they were not
admitted pro hac vice in this case. There is nothing in the record to show that they ever
attempted to become authorized to practice here by showing good standing in Oklahoma,
that Oklahoma would allow an Arkansas attorney to practice there under similar
2
Rule 60(a) permits a court to modify or vacate a judgment within ninety days after
its entry. Sections (b) and (c) of Rule 60 provide certain exceptions to the time limit set by
Rule 60(a). None of those exceptions are argued by appellant.
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circumstances, or that they filed a written statement with the court that they submitted to
Arkansas disciplinary procedures. See Ark. Bar Adm. R. XIV; Preston v. University of Arkansas
for Medical Sciences, 354 Ark. 666, 128 S.W.3d 430 (2003) (complaint filed by out-of-state
attorneys before pro hac vice motions are filed was a nullity). Only “attorneys of record” are
required to be mailed notice under Ark. R. Civ. P. 41(b). We think that, if one is not an
attorney licensed to practice in Arkansas, even for the purposes of the one case before the
court, then that person cannot be an “attorney of record” entitled to notice under Rule 41.
Appellant’s only attorney licensed to practice in Arkansas had appropriate and timely notice
mailed to him, and it was admittedly received.
Appellant makes no other argument for avoiding Rule 60’s time limitation other than
the bare assertion, unsupported by any citation to authority, that the trial court should also
have sent the Oklahoma lawyers a copy of the dismissal order. We do not address this issue.
It is well established that Arkansas appellate courts do not consider assignments of error that
are unsupported by convincing argument or sufficient legal authority. See City of Benton v.
Arkansas Soil & Water Conservation Commission, 345 Ark. 249, 45 S.W.3d 805 (2001).
Appellant’s final argument is that the dismissal under these circumstances constituted
a miscarriage of justice for which relief should be granted. However, Ark. R. Civ. P. 60(a)
speaks to this directly and only permits a court to vacate or modify a judgment or order on
this basis within ninety days of the entry of that judgment or order. Consequently, we hold
that the limitation applies, and that the trial court correctly held that it lacked jurisdiction to
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set aside the judgment of dismissal some two and one-half years after the dismissal was first
entered.
Affirmed.
KINARD and BROWN, JJ., agree.
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