City of Little Rock v. McGeorge Contracting Co.
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Cite as 2010 Ark. App. 765
ARKANSAS COURT OF APPEALS
DIVISION II
CA 09-359
No.
CITY OF LITTLE ROCK
Opinion Delivered November 10, 2010
APPELLANT
V.
McGEORGE CONTRACTING CO.,
INC.
APPELLEE
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
NINTH DIVISION [NO. CV07-3250]
HONORABLE MARY McGOWAN,
JUDGE
REVERSED
WAYMOND M. BROWN, Judge
McGeorge Contracting Co., Inc., filed a complaint against the City of Little Rock and the
Housing Authority for the City of Little Rock (LRHA) in an effort to gain access to Highway
365. Five months later after dismissing the suit for want of prosecution, the Pulaski County
Circuit Court entered an order vacating the dismissal, allowing the suit to proceed. The City has
appealed from the order, challenging the circuit court’s jurisdiction to enter the order and
asserting that McGeorge’s suit is barred by res judicata. McGeorge contends that the dismissal
was void and that the circuit court had the authority to vacate it. We previously ordered
rebriefing due to the City’s failure to comply with our briefing rules.1 Now that the City has filed
a conforming brief, we hold that the dismissal was valid and that the circuit court lost
jurisdiction to vacate it after ninety days had passed. Therefore, we reverse.
1
City of Little Rock v. McGeorge Contracting Co., 2010 Ark. App. 396.
Cite as 2010 Ark. App. 765
In November 2002, McGeorge filed its first complaint against LRHA, but that complaint
was dismissed for want of prosecution in December 2003. It filed a second complaint against
LRHA, alleging the same facts, in March 2007. In July 2008, this complaint was also dismissed
for want of prosecution. Despite this dismissal, McGeorge filed an amended complaint in
November 2008, adding the City as a defendant. The City responded by filing a motion to
dismiss, alleging that the complaint had already been dismissed. On December 8, 2008,
McGeorge moved to vacate the July 2008 dismissal. Attached to the motion were affidavits from
counsel for McGeorge and for LRHA, both stating that they did not receive prior written notice
of the July 2008 dismissal. Three days later, the circuit court vacated the July 2008 dismissal. The
City did not respond to the motion until December 22, 2008. In its response, it asked the court
to reconsider vacating the July 2008 dismissal. There is nothing in the record showing that the
court did so. The City then filed a timely notice of appeal.
The City presents two arguments to this court. First, it argues that the circuit court lacked
jurisdiction to enter the order vacating the July 2008 dismissal. It contends that the July 2008
order, despite stating that it was without prejudice, should have been with prejudice and, thus,
it constituted a final adjudication on the merits. Because it was a final order, it argues, the circuit
court lost jurisdiction to vacate it after ninety days. Second, the City asserts that, because the July
2008 order was a final judgment on the merits, res judicata barred McGeorge from relitigating
the matter. In response, McGeorge argues that the July 2008 dismissal was void under both
Arkansas statutory law and the principles of due process. It contends that, because no one
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Cite as 2010 Ark. App. 765
received notice of the dismissal, the court was without authority to enter it. McGeorge also
asserts that the City’s res judicata argument is not preserved for appellate review.
The matter is still pending in circuit court, but we have jurisdiction to consider an appeal
from an order vacating an order of dismissal.2 A circuit court’s decision under Arkansas Rule of
Civil Procedure 60 is reviewed under the abuse-of-discretion standard.3 But to the extent that
the circuit court ruled on questions of law, we review them de novo, giving no deference to the
circuit court’s ruling on the issues.4
We can resolve this appeal by answering one question: was the July 2008 dismissal valid?
If the July 2008 dismissal was valid, then the circuit court lost jurisdiction to vacate the dismissal
ninety days after entering it.5 If it was void ab initio, then the second lawsuit technically never
ended, and neither Rule 60(a) nor the doctrine of res judicata would bar the suit from
continuing. McGeorge argues that the lack of notice voided the July 2008 dismissal under
Arkansas Rule of Civil Procedure 41(b), Arkansas Code Annotated section 16-65-108 (Repl.
2
Wal-Mart Stores, Inc. v. Taylor, 346 Ark. 259, 57 S.W.3d 158 (2001) (stating that such an
order is the equivalent of an independent action setting aside the judgment); Hill-Rom Co. v.
Swink, 65 Ark. App. 71, 984 S.W.2d 834 (1999) (allowing an appellate court to review an order
vacating or modifying a judgment when the judgment is more than ninety days old).
3
Williams v. Hall, 98 Ark. App. 90, 250 S.W.3d 581 (2007).
4
Ark. Dep’t of Health & Human Servs. v. Storey, 372 Ark. 23, 269 S.W.3d 803 (2007).
5
Ark. R. Civ. P. 60(a) (providing a ninety-day jurisdictional period to modify or vacate
final orders); Jordan v. Circuit Court of Lee County, 366 Ark. 326, 235 S.W.3d 487 (2006). We
recognize that a court may vacate or modify an order outside of the ninety-day period if one of
the exceptions under Rule 60(c) applies, but none of those exceptions apply here.
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Cite as 2010 Ark. App. 765
2005), and the principles of due process.
Rule 41(b) does not provide any relief to McGeorge. In Watson v. Connors,6 the circuit
court entered a dismissal for want of prosecution. Nineteen months later, the appellant asked
the court to set aside the dismissal, contending that he did not get the notice of the impending
dismissal, as required by Rule 41(b). The circuit court denied the motion, finding that it lacked
jurisdiction to vacate the order because the ninety-day period under Rule 60(a) had elapsed. Our
supreme court affirmed, and in doing so, it admonished the appellant’s attorney, who claimed
that he had no opportunity to correct the entry of the dismissal:
Moreover, to the extent that Watson argues that the failure to notify him of the
order of dismissal “effectively dispossessed [him] of any opportunity to contest the entry
of the order until the existence of the dismissal order was made known” to him, it should
be pointed out that every party and attorney bears a degree of responsibility for keeping
up with the posture of his or her case. This court has held that it is “well settled that a
judgment will not be vacated where the party against whom it is rendered totally fails to
show legal diligence.” A party’s lack of diligence is “significant . . . to our consideration
of the question of abuse of discretion.”
It is true that the language of Rule 41(b) provides that a court “shall cause notice
to be mailed to the attorneys of records,” and we have consistently construed the word
“shall” to mean mandatory compliance. However, we have also stated that, even in the
face of language mandating that a court “shall” take a given action, an attorney is
nonetheless not relieved of acting diligently.
....
Although Watson complains of the “obvious” “unfairness of the circumstances,”
the Supreme Court has held that the “adequacy of notice and hearing respecting
proceedings that may affect a party’s rights turns, to a considerable extent, on the
knowledge which the circumstances show such party may be taken to have of the
consequences of his own conduct.” Here, Watson took no interest or action in his case
6
372 Ark. 56, 270 S.W.3d 826 (2008).
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Cite as 2010 Ark. App. 765
for over three years. Because Watson and his attorney should have been aware of the
circumstances (and of the possibility that the case might be dismissed pursuant to Rule
41(b) for failure to prosecute), it cannot be said that the trial court abused its discretion
in denying Watson’s motion to set aside the order of dismissal.7
McGeorge claims that it did not receive notice of the July 2008 dismissal. But, as in
Watson, this does not excuse it from being cognizant of the status of the lawsuit. The failure to
receive notice under Rule 41(b) did not render the dismissal void.
The question of whether the order was void under Arkansas Code Annotated section 1665-108 is closer, but we conclude that it was not. The statute renders null and void any order
entered without actual or constructive notice. It applies when the order is entered “without any
notice whatever,” and a party seeking to take advantage of the statute has the burden of proving
lack of that notice.8
But our supreme court has affirmed dismissals for want of prosecution even when those
dismissals were without notice.9 This makes sense. Parties are obligated to keep themselves
informed of the status of their case.10 The cases applying section 16-65-108 generally involve
7
Id. at 61–62, 270 S.W.3d at 830–31 (citations omitted).
8
White v. Ray, 267 Ark. 83, 85, 589 S.W.2d 28, 29 (1979).
9
See Watson, supra; Ball v. Ball, 193 Ark. 606, 101 S.W.2d 431 (1937); Dent v. Adkisson, 191
Ark. 901, 88 S.W.2d 826 (1935).
10
Anderson v. Melton, 222 Ark. 892, 263 S.W.2d 909 (1954); Trumbull v. Harris, 114 Ark.
493, 170 S.W.2d 222 (1914).
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Cite as 2010 Ark. App. 765
default judgments that were vacated because of insufficient notice of the underlying suit.11 This
case is different. McGeorge clearly had notice of the suit; it simply failed to prosecute it. We are
unable to find any case applying section 16-65-108 to void a dismissal for lack of prosecution.
And in light of the language in Watson, we hold that section 16-65-108 does not apply to a
dismissal for want of prosecution under Rule 41(b).
Finally, McGeorge argues that the July 2008 dismissal violated principles of due process.
It argues that the dismissal operates as a deprivation of property without notice. Again, however,
McGeorge relies on cases involving circumstances where a party has no notice of the
proceedings against him.
The decision in Florence by Matthews v. Taylor12 is helpful. There, a negligence case was set
for trial on August 30, 1995. The day before, the plaintiffs moved for a continuance, citing the
need for unavailable witnesses. Neither the plaintiffs nor their attorney appeared on the trial
date. The court stated that it would not consider the motion without hearing from both sides.
Counsel for the defendant then informed the court that the trial date had been moved three
times before. The trial court denied the continuance, finding that it was not properly before the
court, and granted the defendant’s motion to dismiss for the plaintiffs’ failure to appear. The
11
See, e.g., Beck v. Rhoads, 235 Ark. 619, 361 S.W.2d 545 (1962) (reversing a foreclosure
decree when the property owners had no notice of the foreclosure action); Woolfolk v. Davis, 225
Ark. 722, 285 S.W.2d 321 (1956) (applying the statute after concluding that the appellees were
never served with the complaint); Grinstead v. Wilson, 69 Ark. 587, 65 S.W. 108 (1901) (voiding
a decree appropriating property to be a public road when the land owner received no notice of
the proceedings).
12
325 Ark. 445, 928 S.W.2d 330 (1996).
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Cite as 2010 Ark. App. 765
plaintiffs argued before our supreme court that the dismissal without notice violated due
process. In rejecting the argument, the supreme court relied on Link v. Wabash R.R. Co.,13 where
the Supreme Court of the United States affirmed a dismissal for the plaintiff’s failure to attend
a pretrial conference:
Nor does the absence of notice as to the possibility of dismissal or the failure to
hold an adversary hearing necessarily render such a dismissal void. It is true, of course,
that “the fundamental requirement of due process is an opportunity to be heard upon
such notice and proceedings as are adequate to safeguard the right for which the
constitutional protection is invoked.” Anderson National Bank v. Luckett, 321 U.S. 233
[1944]. But this does not mean that every order entered without notice and a preliminary
adversary hearing offends due process. The adequacy of notice and hearing respecting
proceedings that may affect a party’s rights turns, to a considerable extent, on the
knowledge which the circumstances show such party may be taken to have of the
consequences of his own conduct. The circumstances here were such as to dispense with
the necessity for advance notice and hearing.14
Our supreme court then recognized the circuit court’s inherent power to dismiss a case
for failure to prosecute.15 In the end, the Florence court affirmed the dismissal, despite the failure
of notice.
Under Florence, a court may dismiss a suit without violating a litigant’s due-process rights.
While McGeorge’s failure to prosecute does not rise to the level of dereliction seen in Florence,
it does constitute behavior for which a court could dismiss the suit without violating
McGeorge’s due-process rights. Thus, the record does not show that the July 2008 dismissal was
13
370 U.S. 626 (1962).
14
Florence, 325 Ark. at 449, 928 S.W.2d at 332 (quoting Link, 370 U.S. at 632).
15
Id. (citing Gordon v. Wellman, 265 Ark. 914, 582 S.W.2d 22 (1979); Chandler v. Furlow, 209
Ark. 852, 192 S.W.2d 764 (1946)).
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Cite as 2010 Ark. App. 765
void as a violation of due process.
The July 2008 dismissal was valid, despite the lack of notice. Under Arkansas Rule of
Civil Procedure 60(a), the court only had a ninety-day window to vacate that dismissal. It entered
its order outside of that ninety-day period. Thus, the order vacating the July 2008 dismissal was
void for lack of jurisdiction and must be reversed. Because the circuit court lacked jurisdiction
to vacate the dismissal, there is no need to address the City’s res judicata argument.
Reversed.
ABRAMSON and HENRY, JJ., agree.
8
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