Marilyn Florence et al. v. Captoria Taylor

Marilyn FLORENCE, Age 9; Vernice Price, Age
8; and Robert Matthews, Age 6, By Their
Mother Elsie Matthews and Elsie Matthews,
Individually v. Captoria TAYLOR

95-1170                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered September 9, 1996


1.   Appeal & error -- burden of obtaining ruling is on movant. --
     It is incumbent upon the movant to obtain a ruling on a
     motion.

2.   Appeal & error -- appellate court limited in review to record
     before it. -- The supreme court is limited in its review to
     the record before it.

3.   Constitutional law -- right to notice and opportunity to be
     heard. -- A cornerstone of our legal system is that a person
     not lose his or her life, liberty, or property without notice
     and an opportunity to be heard.

4.   Trial -- mere filing of motion does not continue jury trial --
     counsel should have known dismissal might be consequence of
     actions. -- It is basic that the mere filing of a motion does
     not continue a jury trial, and the trial judge expressly
     conveyed this point to appellants' counsel the day before the
     trial; where counsel simply failed to appear at trial or to
     obtain the necessary continuance order, she should have known
     that dismissal might well be a natural consequence of her
     actions.

5.   Courts -- dismissal of actions -- failure to appear is ground
     for dismissal. -- Failure to appear is a ground for dismissal,
     even though the trial court did not give counsel notice of
     dismissal as a possible sanction; the adequacy of notice and
     hearing respecting proceedings that may affect a party's
     rights turns, to a considerable extent, on the knowledge that
     the circumstances show the party may be taken to have of the
     consequences of his or her own conduct.

6.   Courts -- dismissal of actions -- inherent power of trial
     courts to dismiss case for failure to pursue it with
     diligence. -- The supreme court has recognized the inherent
     power of the trial courts to dismiss a case for failure to
     pursue it with diligence.

7.   Courts -- dismissal of actions -- trial judge has inherent
     power to dismiss case for failure to prosecute. -- A trial
     judge has the inherent power to dismiss a case for failure to
     prosecute.

8.   Courts -- obligation of trial judges to maintain dignity of
     courts -- two unexcused failures to appear for trial showed
     lack of respect for judicial system. -- Where the cause had
     been set for jury trial three times, and appellants and their
     counsel had twice failed to show up on the day of trial, the
     expense and work involved in trial preparation by defense
     counsel and the circuit clerk's office on those two occasions
     undoubtedly played a part in the trial judge's decision to
     dismiss; in addition, the trial judges of the state have an
     obligation to assure that their courts are conducted in an
     orderly and correct manner and that their courts are treated
     with respect and dignity; there was no question that two
     unexcused failures to appear for trial flew in the face of the
     respect due the judicial system.

9.   Courts -- dismissal of actions -- two unexcused failures to
     attend jury trial showed course of extended neglect or willful
     disregard of court procedures. -- Although the supreme court
     was aware of cases holding that appropriate action against a
     neglectful attorney is the better course to follow for an
     appearance failure as opposed to the drastic step of
     dismissal, the court determined that two unexcused failures to
     attend a jury trial evidence either a course of extended
     neglect by counsel or willful disregard of court procedures.

10.  Attorney & client -- client cannot avoid consequences of acts
     of freely selected agent -- no abuse of discretion in
     dismissal. -- Where appellants voluntarily chose their
     attorney as their representative in the action, they could not
     avoid the consequences of the acts or omissions of this freely
     selected agent; the supreme court held that no abuse of
     discretion occurred in the trial judge's dismissal of
     appellants' complaint.


     Appeal from Lee Circuit Court; Harvey Yates, Judge; affirmed.
     Heather Patrice Hogrobrooks, for appellants.
     Barber, McCaskill, Amsler, Jones & Hale, P.A., by: Scott M.
Strauss, for appellee.

     Robert L. Brown, Justice. 
     This case arises from a dismissal of the complaint of
appellants Elsie Matthews on behalf of Marilyn Florence, age 9;
Vernice Price, age 8; and Robert Matthews, age 6; and Elsie
Matthews, individually.  The matter was dismissed with prejudice by
the trial judge on motion of appellee Captoria Taylor for the
"repeated failure" of appellants and their counsel to attend trial. 
Appellants now appeal and assert that the dismissal denied them
their constitutional rights to an impartial tribunal as well as to
notice, opportunity to be heard, and access to the courts.  They
further contend that the dismissal constituted an abuse of the
trial judge's power.  We disagree and affirm the dismissal.
     The pertinent facts are these.  The matter was set to be tried
before a jury in Lee County Circuit Court on August 30, 1995.  At
9:10 a.m. on August 29, 1995, appellants filed a motion for a
continuance, showing that a necessary witness was unavailable for
trial, that a nephew and cousin of the appellants had drowned two
days before, that appellants' counsel had three "criminal cause
numbers" that were set for trial in St. Francis County on August
30, 1995, and that appellants' counsel had briefs due in this court
on August 31, 1995.  The motion further alleged that appellee's
counsel had been informed of the need for a continuance on August
28, 1995.
     Neither appellant Elsie Matthews nor her attorney, Heather
Patrice Hogrobrooks, appeared for jury trial at 9:00 a.m. on August
30, 1995.  At 9:13 a.m. on that date, a hearing was held.  The
trial judge stated that he had been faxed a copy of the appellants'
motion for continuance mid-morning on August 29, 1995, and that he
had communicated with counsel for appellee who objected to the
motion.  The judge stated that he told appellee's counsel he would
not entertain the motion without an opportunity for counsel to be
heard.  The judge stated he next telephoned counsel for appellants
and informed her that counsel for appellee objected to the motion
and that he would not consider the motion "without both parties
either being before the court on a conference call on the telephone
or in person."  The judge added that he heard nothing further from
appellants' counsel.
     Counsel for appellee then advised the trial judge that the
matter had been set for jury trial three times.  The first time,
appellants and their counsel failed to appear on the day of the
trial, and the trial judge continued the matter on his own motion. 
The record reflects that this occurred on September 13, 1994.  A
few months later, appellants' counsel moved for a continuance two
days before the jury trial which had been set.  That motion was
granted.  Now, appellee's counsel maintained, appellants and their
counsel had again failed to appear, while appellee had witnesses en
route and family present and was prepared to go to trial. 
Appellee's counsel further noted that the circuit clerk's office
had been erroneously advised by Ms. Hogrobrooks's secretary on
August 29, 1995, that a jury panel should not be called due to a
continuance.  Appellee's counsel moved to dismiss the matter.
     The trial judge refused to grant the motion for continuance on
the basis that it had never been presented for consideration and
granted the appellee's motion to dismiss.  The judge added that he
had telephoned the trial judge in Forrest City and determined from
him that Ms. Hogrobrooks did not have a case scheduled for trial in
that city on August 30, 1995.  Ms. Hogrobrooks disputes that fact
and filed an Order Certifying Court Attendance, which verified that
she had three of her cases set for trial in Forrest City on that
date and that she appeared in order to answer those cause numbers.
     The appellants argue as their first point on appeal that they
were denied their constitutional rights to due process and equal
protection because (1) the trial judge did not inform them that
their trial was still scheduled for August 30, 1995; and (2) the
trial judge had decided before the reported hearing that he would
dismiss the matter with prejudice.  Neither argument has merit.
     The trial judge specifically stated for the record that he had
advised appellants' counsel that he would not consider the
continuance motion without both counsel appearing in person or by
conference call.  This did not occur.  Further, this court has made
it very clear that it is incumbent upon the movant to obtain a
ruling on a motion.  Carpetland of Northwest Arkansas, Inc. v.
Howard, 304 Ark. 420, 803 S.W.2d 512 (1991).  That was not done in
this case.  In short, there was nothing to suggest to appellants or
their counsel that the matter would not be tried on August 30,
1995.  Secondly, the record reflects, as does the Order of
Dismissal, that appellee's counsel made the motion to dismiss the
cause.  Nothing in the record before this court indicates that the
trial judge had predetermined the motion before the reported
hearing.  We, of course, are limited in our review to the record
before this court.  Edwards v. State, 321 Ark. 610, 906 S.W.2d 310
(1995).
     For their second issue, appellants argue lack of notice of the
possibility of dismissal as well as an impingement of their
opportunity to be heard on that issue and their access to the
courts.  This argument also is meritless.  To be sure, a
cornerstone of our legal system is that a person not lose his or
her life, liberty, or property without notice and an opportunity to
be heard.  Greene v. Lindsey, 456 U.S. 444 (1982).  But it is basic
that the mere filing of a motion does not continue a jury trial,
and the trial judge expressly conveyed this point to counsel for
the appellants the day before the trial.  Counsel simply failed to
appear at trial or to obtain the necessary continuance order and,
thus, should have known that dismissal might well be a natural
consequence of her actions.
     The United States Supreme Court has held that failure to
appear is a ground for dismissal even though notice of dismissal as
a possible sanction was not given to counsel.  Link v. Wabash R.R.
Co., 370 U.S. 626 (1962).  In Link, the district court entered an
order of dismissal when the petitioner failed to attend a pretrial
conference which he knew about but which, he contended, he was too
busy to attend.  The Court, in upholding the district court's
dismissal, held that specific notice of possible dismissal and a
hearing regarding the same were not required by due process:
          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, 246. 
     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.
370 U.S.  at 632.  This court has also recognized the inherent power
of the trial courts to dismiss a case for failure to pursue it with
diligence.  See, e.g., Gordon v. Wellman, 265 Ark. 914, 582 S.W.2d 22 (1979); Chandler v. Furlow, 209 Ark. 852, 192 S.W.2d 764 (1946). 
The appellants, nevertheless, rely on Southwestern Water Co. v.
Merritt, 224 Ark. 499, 275 S.W.2d 18 (1955), where this court
reversed a chancellor's dismissal of a case due to delay in
prosecution.  That case, though, did not involve two unexcused
failures by counsel and a party to attend a jury trial, and,
accordingly, it is simply inapposite to the case at hand.
     The appellants also point us to Cagle v. Fennel, 297 Ark. 353,
761 S.W.2d 926 (1988), where we affirmed a dismissal of a matter
for counsel's failure to appear at deposition twice and to pay the
attendant costs.  Appellants maintain that in Cagle the trial judge
pointedly warned counsel of the potential for dismissal, which did
not occur in the instant case.  We do not read Cagle as requiring
such a warning prefatory to dismissal in all cases, though that
circumstance did exist under the Cagle facts.  Rather, we are
persuaded by the Link rationale quoted above that under certain
circumstances, notice, or indeed a warning of dismissal, is not
required.
     For their final point, the appellants urge that the trial
judge abused his inherent power by dismissing the case.  We
disagree.  A trial judge clearly has the inherent power to dismiss
a case for failure to prosecute.  Gordon v. Wellman, supra;
Chandler v. Furlow, supra; Thompson v. Foote, 199 Ark. 474, 134 S.W.2d 11 (1939).  This was the third time that this cause had been
set for jury trial and the second time that the appellants and
their counsel had failed to show up on the day of trial.  The
expense and work involved in trial preparation by defense counsel
and the Lee County Circuit Clerk's office on those two occasions,
no doubt, played a part in the trial judge's decision to dismiss,
as it should have.  But in addition to that, the trial judges of
this state have an obligation to assure that their courts are
conducted in an orderly and correct manner and that their courts
are treated with respect and dignity.  There is no question that
two unexcused failures to appear for trial flies in the face of the
respect due our judicial system.
     The appellants posit that the dismissal penalizes them for
their attorney's actions and that perhaps sanctions against their
counsel is a more appropriate course of action as an alternative to
dismissal.  We are aware of cases that hold that appropriate action
against a neglectful attorney was the better course to follow for
an appearance failure as opposed to the drastic step of dismissal. 
See, e.g., Jackson v. Washington Monthly Co., 569 F.2d 119 (D.C.
Cir. 1977); Moore v. St. Louis Music Supply Co., 539 F.2d 1191 (8th
Cir. 1976).  However, where two unexcused failures to attend a jury
trial have occurred, this evidences either a course of extended
neglect by counsel or willful disregard of court procedures.
     Bearing the two failures in mind, we are drawn to the language
of the Supreme Court in Link v. Wabash R.R. Co., supra:
          There is certainly no merit to the contention that
     dismissal of petitioner's claim because of his counsel's
     unexcused conduct imposes an unjust penalty on the
     client.  Petitioner voluntarily chose this attorney as
     his representative in the action, and he cannot now avoid
     the consequences of the acts or omissions of this freely
     selected agent.
370 U.S.  at 633-634.  See also Chalkley v. Henley, 178 Ark. 635, 12 S.W.2d 18 (1928).  We hold that no abuse of discretion occurred.
     Affirmed.