Carmical v. City of Beebe

• Citation: 316 Ark. 208,871 S.W.2d 386
• Decision Date: 07 March 1994
• Docket Number: No. 93-989,93-989
• Parties: Marvin V. CARMICAL and Margaret E. Carmical, Appellants, v. CITY OF BEEBE, Arkansas; Roy E. Simmons, Former Mayor of the City of Beebe, Individually and in his Former Official Capacity; Jessie R. Lay, Individually and in his Former Official Capacity as Code Enforcement Officer of the City of Beebe, Arkansas; Robert W. Herman; Orval Devore; Mary Jane Chudomelka; Eugene McQueen; Bobby Burns, Individually and in their Official Capacity as Members and Former Members of the Beebe Planning Commission and Board of Adjustment, Appellees.
• Court: Supreme Court of Arkansas

Page 386

871 S.W.2d 386

316 Ark. 208

Marvin V. CARMICAL and Margaret E. Carmical, Appellants, v. CITY OF BEEBE, Arkansas; Roy E. Simmons, Former Mayor of

the City of Beebe, Individually and in his Former Official

Capacity; Jessie R. Lay, Individually and in his Former

Official Capacity as Code Enforcement Officer of the City of

Beebe, Arkansas; Robert W. Herman; Orval Devore; Mary

Jane Chudomelka; Eugene McQueen; Bobby Burns, Individually

and in their Official Capacity as Members and Former Members

of the Beebe Planning Commission and Board of Adjustment, Appellees.

No. 93-989.

Supreme Court of Arkansas.

March 7, 1994.

Rhonda K. Slayden, Little Rock, for appellants.

Richard B. Berry, Beebe, for appellees.

HAYS, Justice.

Appellants, Margaret and Marvin Carmical, challenge actions of the White County Circuit Court in dismissing their complaint based on grounds of res judicata and statute of limitations. This is the second time they have appealed to this court, therefore we have jurisdiction pursuant to Rule 1-2(a)(11). We dismissed the first appeal because counterclaims were still pending in the trial court and there was not an appealable order pursuant to ARCP Rule 54(b). Carmical v. City of Beebe, 302 Ark. 339, 789 S.W.2d 453 (1990). We do not reach the merits of this appeal because the abstract does not contain all the information necessary to our resolution of the issues presented. Accordingly, we affirm pursuant to Ark.Sup.Ct.R. 4-2(a)(6).

Rule 4-2(a)(6) requires that the abstract be included as part of the brief and contain only the information in the transcript that is "necessary to an understanding of all questions presented to the Court for decision." We have said that as long as we can determine from a reading of the briefs and appendices material parts necessary for an understanding of the questions at issue, we will render a decision on the merits. Montgomery v. Butler, 309 Ark. 491, 834 S.W.2d 148 (1992). However, the briefs and abstract do not afford such an understanding.

Appellants are a mother and son who applied for and were granted a building permit by appellees, various Beebe city officials. Apparently, in reliance on the building permit, appellants contracted for the construction of a building. Thereafter, appellees issued an order requiring appellants to cease the construction of the building.

Appellants filed suit in federal district court alleging violations of 42 U.S.C. § 1983 as well as other state law violations. The abstract does not tell us what specific state law violations were alleged. The federal district court granted summary judgment for appellees. However, the abstract does not indicate the particular claims that were included in the summary judgment or whether the summary judgment was with or without prejudice. The Eighth Circuit Court of Appeals affirmed the summary judgment and then denied requests for rehearing.

Appellants then filed suit in White County Circuit Court. The abstract tells us only that appellants "alleg[ed] tort and contract causes of action." The circuit court ruled the case was should be dismissed due to res judicata. We dismissed the appeal of that ruling because appellees' counterclaims for mental anguish were still pending. Carmical, 302 Ark. 339, 789 S.W.2d 453.

Upon appellants' request, the White County Circuit Court reconsidered its dismissal and set it aside. Appellants amended their complaint, adding additional parties and additional claims. The abstract of the amended complaint does not specify the additional claims; it merely states that constitutional and civil rights violations were alleged in addition to the tort and contract violations. The circuit court then ruled that res judicata did apply to the action because of the federal court decisions, that the complaint should be dismissed because the limitations period had expired, and granted summary judgment to one of the defendants. The abstract does not reveal on what basis the partial summary judgment was entered or whether it was with or without prejudice. The trial court entered two more orders, one dismissing another defendant, and the other dismissing without prejudice the defendants' counterclaims. This appeal followed.

The two questions presented for our decision in this appeal are whether a federal court judgment operates as res judicata to bar a state court action and whether a complaint filed in state court can relate back to a complaint filed in federal court so as to toll the statute of limitations. The abstract does not contain sufficient information for us to decide either question.

Under the doctrine of res judicata or claim preclusion, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or his privies on the same claim or cause of action. Robinson v. Buie, 307 Ark. 112, 817 S.W.2d 431 (1991). This court has stated that "the test in determining whether res judicata applies is whether the matters presented in a subsequent suit were necessarily within the issues of the former suit and might have been litigated therein." American Standard, Inc. v. Miller Eng'g, Inc., 299 Ark. 347, 351, 772 S.W.2d 344, 346 (1989). The...