Beverly Enterprises-Arkansas v. Circuit Ct

• Decision Date: 29 June 2006
• Docket Number: No. 06-608.,06-608.
• Citation: Beverly Enterprises-Arkansas v. Circuit Ct, 238 S.W.3d 108 (Ark. 2006)
• Parties: BEVERLY ENTERPRISES-ARKANSAS, INC., formerly d/b/a Batesville Nursing and Rehabilitation Center, Appellant, v. CIRCUIT COURT OF INDEPENDENCE COUNTY, Arkansas, Honorable John N. Harkey, Circuit Judge, Appellee.
• Court: Arkansas Supreme Court

238 S.W.3d 108

BEVERLY ENTERPRISES-ARKANSAS, INC., formerly d/b/a Batesville Nursing and Rehabilitation Center, Appellant, v. CIRCUIT COURT OF INDEPENDENCE COUNTY, Arkansas, Honorable John N. Harkey, Circuit Judge, Appellee.

No. 06-608.

Supreme Court of Arkansas.

June 29, 2006.

Womack, Landis, Phelps, McNeill & McDaniel, by: Paul McNeill and Richard Lusby, Jonesboro; Hardin, Jesson & Terry, PLC, by: Rex M. Terry, Fort Smith; Williams & Anderson PLC, by: Jess Askew III; and Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: R.T. Beard III and M. Samuel Jones, III, Little Rock, AR, for petitioner.

Mike Beebe, Att'y Gen., by: Sherri L. Robinson, Ass't Att'y Gen., Little Rock, AR, for respondent.

Brian G. Brooks, Greenbrier, AR, for plaintiffs.

Bridges, Young, Matthews & Drake, PLC, by: Stephen A. Matthews, Pine Bluff, TX, for amici curiae, Arkansas State Chamber of Commerce, Fort Smith Regional Chamber of Commerce, Jefferson Regional Medical Center, Murphy Oil USA, Inc., and Deltic Timber Corporation.

Nix, Patterson & Roach, LLP, by: M. Chad Trammell, Texarkana, TX, for amici curiae.

JIM HANNAH, Chief Justice.

Beverly Enterprises-Arkansas, Inc., d/b/a Batesville Nursing and Rehabilitation Center, petitions this court under Ark. Sup.Ct. R. 6-1 for a writ of certiorari and a writ of prohibition. Beverly argues that a writ of certiorari should issue to correct the circuit court's abuse of discretion in ordering Beverly to post a $25,000,000 supersedeas bond before it may appeal an order of class certification. Beverly further argues that a writ of prohibition should issue to prohibit the circuit court from any further action to enforce its order to post a supersedeas bond. We grant the petition for a writ of certiorari and the petition for a writ of prohibition becomes moot.

Upon successfully moving for certification under Ark. R. Civ. P. 23, and before the order of certification was entered, plaintiff Annette Thomas filed a Motion for Protection of Members of Class During Pendency of Anticipated Appeal. By that motion, Thomas sought an order under Ark. R.App. P.—Civ. 8 that Beverly post a supersedeas bond to protect any recovery that class-action plaintiffs might obtain at the subsequent trial of the matter. Thomas asserted that Beverly was financially unstable and that action had to be taken to preserve assets or the class would have no source from which to seek a recovery. The circuit court granted the motion and request for a supersedeas bond on the basis of Beverly's "uncertain financial status and the multitude of claims" to "ensure that the members of this class have the maximum protection the law allows." The circuit court ordered the bond to "provide proper security" during the course of the appeal of the order of class certification.

"A supersedeas is a written order commanding appellee to stay proceedings on the judgment, decree or order being appealed from and is necessary to stay such proceedings." Ark. R.App. P.—Civ. 8(a). The order appealed from that gave rise to the order to post a supersedeas bond was a class-certification order. A class-certification order is an order declaring that the requirements of Ark. R. Civ. P. 23 have been met and the action may proceed as a class action. Beverly did not seek a supersedeas and has not sought to stay proceedings in the circuit court. Rather, Beverly has appealed the class certification as allowed under Ark. R.App. P.—Civ. 2(a)(9).

It is Thomas who filed the Motion for Protection of Members of Class During Pendency of Anticipated Appeal seeking to impose a supersedeas bond on Beverly under Rule 8. A supersedeas bond sought under Rule 8 pertains to protection of a judgment that awards monetary or injunctive relief. Under Ark. R.App. P.—Civ. 8(c):

[w]henever an appellant entitled thereto desires a stay on appeal, he shall present to the court for its approval a supersedeas bond which shall have such surety or sureties as the court requires . . . to the effect that appellant shall pay to appellee all costs and damages that shall be affirmed against appellant on appeal. . .

When the circuit court granted the request for the supersedeas bond under Rule 8, there was no judgment for monetary or injunctive relief to be protected by a supersedeas bond. "The purpose or effect of a supersedeas bond is to secure the payment of a judgment following its affirmance on appeal." Bailey v. Delta Trust & Bank, 359 Ark. 424, 439, 198 S.W.3d 506, 518 (2004). A supersedeas bond required under Rule 8 is not imposed to protect appellees against alleged financial instability of an appellant prior to an entry of judgment for damages that might never be obtained. In the present case, there was no judgment for damages on which to stay execution. The case is yet to be tried. The circuit court erred in granting the request for a supersedeas bond under Rule...