John David Terry v. John A. White, in his capacity as Chancellor of the University of Arkansas at Fayetteville; and B. Alan Sugg, in his capacity as President of the University of Arkansas System
Annotate this Case
Download PDF
SUPREME COURT OF ARKANSAS
No.
07-1143
Opinion Delivered
JOHN DAVID TERRY,
APPELLANT,
VS.
JOHN A. WHITE, in His Capacity as
Chancellor of the University of Arkansas at
Fayetteville; AND B. ALAN SUGG, in His
Capacity as President of the University of
Arkansas System,
APPELLEE,
APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT,
NO. CIV07-1094-6,
HON. MARK LINDSAY, JUDGE,
AFFIRMED.
ANNABELLE CLINTON IMBER, Associate Justice
1.
COURTS — CIVIL CONTEMPT — CIRCUIT COURT ’S ORDER WAS DEFINITE AND CLEAR. —
Before anyone can be held in contempt for violating a court order, the order must be definite
in its terms and clear as to what duties it imposes; here, the court’s order was definite in its
terms and clear as to what duties it imposed; the order itself and the court’s comments during
the hearing plainly demonstrate that the order was intended to constitute a complete bar on
all discovery; the argument of appellant’s counsel that the order lacked clarity was therefore
without merit.
2.
APPEAL &
— ARGUMENT NOT
PRESERVED FOR APPELLATE REVIEW . — An argument alleging judicial bias is not preserved
when there is not an objection based on the bias of the judge or a motion for the trial judge
to recuse; because counsel failed to make an objection on the basis of bias or move for the
circuit judge’s recusal, his bias argument is not preserved for appellate review.
ERROR
—
FAILURE TO MAKE OBJECTION BASED ON BIAS
Appeal from Washington Circuit Court; Mark Lindsay, Judge; affirmed.
Christian & Byars, by: Eddie Christian, Jr.; and Pryor, Robertson, Beasley, Smith & Karber,
PLLC, by: Gregory T. Karber, for appellant.
Bassett Law Firm LLP, by: Woody Bassett; Jeffrey A. Bell, Gen. Counsel; T. Scott Varady,
William R. Kincaid, and Tamla J. Lewis, Gen. Counsel, for appellees.
Attorney Eddie Christian, Jr., appeals from an order of the Washington County Circuit
Court finding him in contempt for intentionally and willfully violating a prior order barring
all discovery. Christian alleges two points of error on appeal: 1) the circuit court’s prior order
did not prohibit new discovery after the filing of an amended complaint; and 2) the circuit
court exhibited both the appearance of bias and actual bias. Because this appeal involves the
discipline of attorneys-at-law, our jurisdiction is pursuant to Arkansas Supreme Court Rule
1-2(a)(5) (2008). We find no error and affirm.
On April 24, 2007, Christian filed a complaint in the Washington County Circuit
Court on behalf of his client, John David Terry. The named defendants were John A. White,
in his capacity as Chancellor of the University of Arkansas, Fayetteville, and B. Alan Sugg, in
his capacity as President of the University of Arkansas System. The complaint sought a writ
of mandamus and alleged claims for breach of contract, breach of fiduciary duty, and misuse
of public funds, or illegal exaction. The gravamen of Terry’s complaint was that White had
failed to conduct a proper investigation into allegations of a harassing email campaign against
a student-athlete.
On the same day as the filing of the complaint, Christian issued subpoenas duces tecum
to several individuals, scheduling depositions and seeking such evidence as email
correspondence, computer hard drives, and cellular phone records. In compliance with Rule
30(b)(1) of the Arkansas Rules of Civil Procedure, Christian also issued notices of those
-2-
depositions to White and Sugg. On May 9, 2007, following the filing of various objections
and motions to quash by the individuals subpoenaed, the circuit court held a telephone
conference with counsel. At that time, counsel for White and Sugg indicated an intent to file
a motion to dismiss on the grounds of sovereign immunity. On account of this plan to seek
summary dismissal of the complaint, White and Sugg requested a stay of discovery. The
parties thus agreed to a delay in ruling on the objections and motions to quash until such time
as the defendants filed their motion to dismiss and the court conducted a hearing on all
pending motions, including any dispositive motions filed by the defendants. The order
encompassing the rulings from the telephone conference, entered May 24, 2007, directed that
no person or entity already subpoenaed should respond or produce documents prior to June
8, 2007. The order also instructed Christian to include on any subpoenas or notices issued
language instructing the recipient not to respond or produce documents prior to June 8, 2007.
White and Sugg filed their motion to dismiss on May 17, 2007. The circuit court held
a hearing on the motion on June 4, 2007, and dismissed Terry’s breach-of-contract and
breach-of-fiduciary-duty claims with prejudice on the grounds of sovereign immunity. The
court also ruled that Terry’s illegal-exaction and mandamus claims were dismissed without
prejudice for failure to state facts upon which relief could be granted, pursuant to Arkansas
Rule of Civil Procedure 12(b)(6). Terry was granted a period of twenty days in which to
refile the illegal-exaction and mandamus claims. The circuit court’s order of dismissal, entered
June 26, 2007, contained the following paragraph:
In light of the dismissal of the Complaint, no discovery shall be conducted and
all outstanding discovery initiated prior to June 4, 2007, is stayed indefinitely
-3-
pending any further Orders of this Court. However, any person or entities that
have been subpoenaed and/or noticed for depositions and/or production of
documents in this proceeding will remain under their respective notice or
subpoena duces tecum until further notice of the Court. With regard to any
outstanding discovery, Plaintiff’s counsel is hereby directed to provide written
notice to each recipient of any subpoena or discovery request that all discovery
is stayed in this matter indefinitely and that no witness is to produce any
documents, appear for deposition, or otherwise respond to any discovery
requests or demands pending any further Orders by this Court.
Terry filed an amended complaint on June 25, 2007, repleading the illegal-exaction
and mandamus claims. White and Sugg moved to dismiss the amended complaint on July 16,
2007. On July 30, 2007, Christian issued a subpoena to the Director of the Arkansas
Department of Finance and Administration (DF&A), the workplace of Sherri Darby, one of
the previously subpoenaed witnesses. The subpoena instructed the Director to appear for
deposition and to produce all emails received by or sent from Darby’s email address referring
to the University of Arkansas football program.1 By way of this subpoena, Christian obtained
from the DF&A a compact disc containing more than 800 emails received by or sent from
Darby’s email address.
Christian issued three more subpoenas on August 8, 2007, to
employers of two other witnesses and to the DF&A again, expanding the scope of the
evidence sought. Christian failed to provide notices of depositions to opposing counsel in
accordance with Arkansas Rule of Civil Procedure 30(b)(1). He released the evidence
obtained to the Arkansas Democrat-Gazette and various other individuals. Opposing counsel
and counsel for the subpoenaed witnesses were apparently unaware of these four subpoenas
1
Christian sought this evidence first by way of a Freedom of Information Act request.
Upon being informed by the Department of Finance and Administration that the records would
not be released pursuant to the request, Christian issued the subpoena.
-4-
until the information was reported in the newspaper.
Darby filed a motion for contempt against Terry and Christian on August 13, 2007,
alleging violations of the court’s May 24 and June 26 orders. In a telephone conference held
the following day, the court stated that it had intended to stay all discovery. In an effort to
maintain the status quo until the motion for contempt could be heard on its merits, the court
entered an order dated August 16, 2007, barring all discovery absent further orders of the
court and requiring Christian to notify all other counsel of all outstanding subpoenas and of
the identities of all individuals or entities to whom evidence had been released. The court
also ordered Christian to notify all recipients of subpoenas and inform them that they should
not respond until ordered to do so by the court. Additionally, Christian was prohibited from
sharing information received as a result of the subpoenas and was ordered to notify all
individuals or entities with whom he had already shared information and instruct them not
to further disseminate it. On August 17, 2007, White and Sugg filed their own motion for
contempt.
Also on August 17, 2007, the court held a hearing on White and Sugg’s motion to
dismiss the amended complaint. The court granted the motion to dismiss in accordance with
Arkansas Rule of Civil Procedure 12(b)(6), finding that Terry had again failed to allege facts
sufficient to state a claim for illegal exaction or mandamus.2 In an order entered September
7, 2007, the court awarded $1,000 in attorney’s fees in favor of White and Sugg, finding that
2
This order is the subject of a related appeal, Terry v. White, 374 Ark. 387,___S.W.3d___
(2008).
-5-
Terry’s complaints failed to present a justiciable issue of fact or law, and released all individuals
and entities subpoenaed. On September 5, 2007, the court held a hearing on the motions for
contempt, at which it found Christian to be in civil contempt of court for intentionally and
willfully violating the court’s June 26 order barring all discovery. The order of contempt was
entered on October 25, 2007. Christian filed a timely notice of appeal.
For his first point on appeal, Christian contends that the circuit court’s order finding
him in contempt must be reversed due to the lack of clarity in the court’s prior order barring
discovery. Specifically, he argues that the June 26 order barring discovery involved two
separate issues: outstanding discovery, which had been initiated prior to the June 4 hearing,
and new discovery, which had yet to be initiated at the time of the hearing. Christian asserts
that outstanding discovery was stayed pending the motions to quash, while new discovery was
barred because of the dismissal of the complaint. The crux of Christian’s argument is that the
filing of the amended complaint revived the action and therefore lifted the bar on new
discovery. White and Sugg, along with Darby,3 who has also filed a brief in this appeal, point
out that the June 26 order barring discovery was filed one day after the amended complaint
was filed, indicating that the circuit court intended for the bar to remain in spite of the filing
of the amended complaint.
Our standard of review for civil contempt is whether the finding of the circuit court
is clearly against the preponderance of the evidence. Omni Holding & Dev. Corp. v. C.A.G.
Invs., Inc., 370 Ark. 220, 230, 258 S.W.3d 374, 381 (2007). This court has held that willful
3
Darby failed to file a motion to intervene in this court.
-6-
disobedience of a valid order of a court is contemptuous behavior. Omni Holding & Dev.
Corp. v. 3D.S.A., Inc., 356 Ark. 440, 450, 156 S.W.3d 228, 235 (2004). However, before
one can be held in contempt for violating the court’s order, the order must be definite in its
terms and clear as to what duties it imposes. Id. Christian argues that the circuit court’s June
26 order was unclear in regard to new discovery. He asserts that the phrase “[i]n light of the
dismissal of the Complaint” indicated that discovery could be resumed if an amended
complaint were filed within twenty days. Christian attempts to demonstrate this lack of
clarity by arguing that counsel present at the June 4 hearing understood the court’s ruling to
be that discovery was stayed for twenty days.
First, we note that the paragraph at issue in the June 26 order contains no mention of
twenty days. The fifth paragraph of the order granted Terry a period of twenty days from the
date of the hearing, through and including June 25, 2007, in which to file an amended
complaint repleading the illegal-exaction and mandamus claims. The seventh paragraph then
ruled that, “[i]n light of the dismissal of the Complaint, no discovery shall be conducted and
all outstanding discovery initiated prior to June 4, 2007, is stayed indefinitely pending any
further Orders of this Court.” We find Christian’s contention that the twenty days was also
somehow relevant to discovery to be wholly unavailing. The circuit court’s order clearly
stayed all outstanding discovery and barred all future discovery.
As Christian points out, the transcript of the June 4 hearing was attached to and
incorporated into the June 26 order. He argues that comments made at the hearing establish
the lack of clarity of the discovery ruling. However, the paragraph incorporating the
-7-
transcript reads as follows: “The reasons and grounds for the Court’s dismissal of each count
of Plaintiff’s Complaint are detailed in the transcript of the Court’s ruling from the bench on
June 4, 2007, which is attached hereto and incorporated into this Order.” In other words,
the comments made from the bench were incorporated only insofar as they related to the
dismissal of the complaint. In any event, we hold that the court’s comments at the June 4
hearing are consistent with its ruling barring all discovery and, in fact, contradict Christian’s
argument regarding lack of clarity.
As a general rule, judgments are construed like any other instruments; the
determinative factor is the intention of the court, as gathered from the judgment itself and the
record. Magness v. McEntire, 305 Ark. 503, 506, 808 S.W.2d 783, 784 (1991). We have
followed this general rule in stating that judgments should be reviewed by looking to the
judgment itself, pleadings, and any evidence presented. Id. Moreover, while we look to the
language in which an order is couched, we also look to whether the evidence supports the
ruling. Id. at 506, 808 S.W.2d at 784-85 (quoting Ark. State Bank Comm’r v. Bank of Marvell,
304 Ark. 602, 607, 804 S.W.2d 692, 694 (1991)). The circuit court in the instant case made
its intentions clear in the June 4 hearing with the following statement, which was made in
reference to the May 24 order ruling that no recipient of a subpoena should respond before
the motion to dismiss could be heard:
[D]idn’t we put in there that nobody would be required to produce anything
until after June the 4th, something like that? I guess we need to put in this
order that that deadline is extended because, of course, if you do plead over
again, then you may have another motion to dismiss by the defendants, so I
would assume we just need to put that action is stayed until further orders of the
Court indefinitely.
-8-
(Emphasis added.)
This language demonstrates the court’s clear intent with regard to
discovery. Christian’s argument to the contrary is meritless.
The court’s comment quoted above also indicates that the June 26 order was intended
to parallel the May 24 order. Both orders stayed discovery in anticipation of the filing of a
dispositive motion to dismiss by White and Sugg. In both instances, the court intended to
maintain the status quo until such motion to dismiss could be heard. As such, the purpose and
terms of the circuit court’s June 26 stay of discovery could not have been more clear.
We hold that the June 26 order was definite in its terms and clear as to what duties it
imposed. The order itself and the circuit court’s comments plainly demonstrate that the order
was intended to constitute a complete bar on all discovery. Therefore, we reject Christian’s
argument regarding lack of clarity.
For his second point on appeal, Christian alleges that the circuit court exhibited both
the appearance of bias and actual bias. However, he failed to make an objection on this basis
or move for the circuit judge’s recusal. The argument alleging judicial bias is not preserved
when there is not an objection based on the bias of the judge or a motion for the trial judge
to recuse. Middleton v. Lockhart, 364 Ark. 32, 37, 216 S.W.3d 98, 101 (2005). Christian’s bias
argument is not preserved for appellate review; accordingly, we are precluded from addressing
it.
Affirmed.
WILLS, J., not participating.
-9-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.