Battle v. Harris, 88-231
| Decision Date | 13 March 1989 |
| Docket Number | No. 88-231,88-231 |
| Citation | 298 Ark. 241,766 S.W.2d 431 |
| Parties | Jackie Mitchell BATTLE and George Mitchell, Appellants, v. James A. (Al) HARRIS, Sheriff of Clark County, Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Christopher C. Mercer, Little Rock, for appellants.
David M. Fuqua and James D. Lawson, No. Little Rock, for appellee.
This controversy centers on a writ of execution which was issued on the basis of a chancery court judgment for child support arrearages. Judy Battle obtained the judgment against her former husband, Willie Joe Battle, who is presently married to appellant Jackie Battle. Appellee's office served the writ on Jackie Battle, and subsequently seized 140 personalty items to which Jackie, along with her father, George Mitchell, claimed ownership. Jackie claims that, after the items were seized, she gathered information to prove that she, not Willie Joe, owned the seized items, but before she could garner the information and petition to stay the execution, appellee sold all the items. The appellee sold the items twenty-nine days after they had been seized.
Jackie and her father filed suit in circuit court against appellee, alleging the denial of their rights of due process and seeking compensatory and exemplary damages for appellee's wrongful, malicious and illegal taking and sale of their personalties. Appellee filed a motion to dismiss pursuant to ARCP Rule 12(b)(6). First, appellee argued that the appellants' exclusive remedy to suspend or set aside the writ of execution was provided under Ark.Code Ann. §§ 16-66-301 to -304 and 16-66-401 to -409 (1987), and that appellants had failed to avail themselves of that remedy. Second, he claimed that, as a public official, he was immune from liability for damages pursuant to Ark.Code Ann. § 21-9-301 (1987). In finding merit in appellee's argument, the trial court concluded the appellants' due process rights had not been violated and granted appellee's motion to dismiss the appellants' action. We reverse.
We first note that Rule 12(b)(6) provides for the dismissal of a complaint for failure to state facts upon which relief can be granted. Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981). In Guthrie v. Tyson Foods, 285 Ark. 95, 685 S.W.2d 164 (1985), we further noted that it is improper for the trial court to look beyond the complaint to decide a motion to dismiss pursuant ARCP Rule 12(b)(6), unless it was treating the motion as one for summary judgment, and even if the court treated the motion as one for summary judgment, it is incorrect to base the decision on allegations in briefs and attached exhibits. Here, the trial court made no mention of treating the appellee's Rule 12(b)(6) motion as one for summary judgment. Therefore, in considering a motion for judgment on the pleadings for failure to state facts upon which relief can be granted under ARCP 12(b)(6), the facts alleged in the complaint are treated as true and are viewed in the light most favorable to the party seeking relief. McAllister v. Forrest City St. Imp. Dist., 274 Ark. 372, 626 S.W.2d 194 (1981).
We next look to the appellants' complaint, which, among other things, alleges that Jackie Battle and her father were the owners of the 140 items of personal property that were unlawfully seized by the appellee from the appellants' house. Appellants claimed that a deputy of appellee's demanded and received the appellants' keys to their house after the deputy threatened to "kick the door down." Appellants further alleged that their home was stripped of all furniture and that the appellee refused to return the items after the appellants explained that the property solely belonged to the appellants. Appellants asserted they received no notice from the appellee before or at the time the appellee sold the 140 items of personal property at an auction twenty-nine days after the property was seized. Appellants further alleged the appellee and his agents had been specifically told that the seized items did not belong to the judgment debtor, Willie Joe Battle, and that, despite all protestations, objections and warnings, appellee deliberately and willfully seized and sold the appellants' properties without just cause and in violation of their due process rights.
In view of the foregoing factual...
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