City of Little Rock v. Nelson

• Decision Date: 23 January 2020
• Docket Number: No. CV-19-293,CV-19-293
• Citation: 2020 Ark. 34,592 S.W.3d 633
• Parties: CITY OF LITTLE ROCK, Appellant v. LaDonna NELSON, AS Parent and NEXT FRIEND OF Ricky NELSON Individually and on Behalf of Others Similarly Situated, Appellee
• Court: Arkansas Supreme Court

2020 Ark. 34

592 S.W.3d 633

CITY OF LITTLE ROCK, Appellant

v.LaDonna NELSON, AS Parent and NEXT FRIEND OF Ricky NELSON Individually and on Behalf of Others Similarly Situated, Appellee

No. CV-19-293

Supreme Court of Arkansas.

Opinion Delivered: January 23, 2020

Caleb Garcia and Rick D. Hogan, Office of the City Attorney, for appellant.

Holleman & Associates, P.A., by: John Holleman and Timothy A. Steadman, for appellee.

SHAWN A. WOMACK, Associate Justice

This is the first of two decisions from this court arising out of LaDonna Nelson’s challenge to the Little Rock District Court’s assessment of installment fees. See City of Little Rock v. Nelson , No. CV-19-475.¹ In this appeal, the City of Little Rock argues that the jury erroneously concluded that the district court’s installment fee practice violated due process. But even if a violation occurred, the City claims it should not be held liable for the district court judge’s actions. We reject the City’s arguments and affirm.

I.

This case arises from the Little Rock District Court–Second Division’s illegal assessment of installment fees. Under Arkansas law, defendants who pay a district court fine on an installment basis will be assessed a fee of ten dollars per month. See Ark. Code Ann. § 16-13-704(b)(3)(E) (Supp. 2013). The fee, which is to be assessed monthly and accrues for each month that a defendant has not made payment in full, must be collected in full in each month that a defendant makes an installment payment. See Ark. Code Ann. § 16-13-704(b)(1). Rather than charge the defendant by month, Little Rock District Court Judge Vic Fleming assessed an aggregate fee for the entirety of the time-pay plan at the outset. As a result, the defendant would pay installment fees for the full plan even if the fine or civil penalty was paid off early.

This practice is best illustrated by the facts leading up to the underlying suit. On April 21, 2014, LaDonna Nelson’s then-minor son, Ricky, pleaded no-contest to speeding before Judge Fleming. Ricky was given a $115 civil penalty and placed on a three-month installment plan. Judge Fleming issued a time-pay order indicating that Ricky was required to pay $145. The additional thirty dollars reflected the cumulative fee for the installment plan. Days later, Nelson sought to pay her son’s civil penalty in full. The district court cashier would not accept her check for $115. Nelson was required to pay the entire fee for the installment plan even though the plan was not used. She paid the full sum of $145 eleven days after the civil penalty was issued.

On May 12, 2014, Nelson filed the underlying class action against the City of Little Rock. As amended, the complaint alleged that the Little Rock District Court’s installment fee practice constituted an illegal exaction and violated due process under the Arkansas Civil Rights Act. The illegal exaction claim was dismissed. The circuit court later ruled from the bench that it would grant summary judgment for the City on the due process claim. The City was instructed to prepare a precedent order but unexplainably failed to do so.

Before the August 2018 trial, the City requested a ruling on the parties’ cross-motions for summary judgment. No reference was made to the previous bench ruling. The circuit court denied the motions. After a two-day trial, the jury returned a verdict in favor of Nelson. It concluded that the installment fee practice violated due process and that the City was liable for the violation. The circuit court ordered the City to pay back $8,670 in excess installment fees paid by class members. The court later awarded Nelson with $225,000 in attorney’s fees and a $10,000 enhancement fee. The City subsequently sought our review.

II.

As a threshold matter, we must first assure ourselves of jurisdiction. Nelson argues that the City failed to file a timely notice of appeal. Absent a timely and effective notice of appeal, we lack jurisdiction over the matter. See Worsham v. Day , 2017 Ark. 192, at 3-4, 519 S.W.3d 699, 701. If Nelson is correct, we must dismiss this appeal. Id.

On August 29, 2018, the circuit court entered a judgment reflecting the jury’s verdict and ordering the City to repay the excess installment fees. Though this was not a final order, the City filed a notice of appeal. After resolving the issue of damages, a final order was entered on December 27, 2018. The premature notice of appeal was treated as filed on the day after the final order was entered. See Ark. R. App. P.–Civ. 4 (2018). Accordingly, the record was due and filed on March 28, 2019. See Ark. R. App. P.–Civ. 5 (2018). Our jurisdiction was secured by the initial notice of appeal. We need not consider Nelson’s argument premised on the City’s amended notice of appeal and post-trial motion.

III.

On appeal, the City asserts that the installment fee orders did not violate due process. The City also claims that it cannot be held liable for Judge Fleming’s actions. This argument primarily rests on the premise that Judge Fleming is not a city employee. But if we conclude otherwise, the City insists it is shielded from liability by judicial immunity and the doctrine of respondeat superior.

The City presents these questions by appealing the circuit court’s denial of its motions for summary judgment, directed verdict, and judgment notwithstanding the verdict (JNOV). As discussed below, we decline to consider the denial of the City’s motion for summary judgment. Moreover, only the arguments raised in support of the City’s motion for directed verdict at the conclusion of all evidence are preserved for review. See Ark. R. Civ. P. 50(e) (2018). Our review is accordingly limited to those preserved by that motion. See Carr v. Nance , 2010 Ark. 497, at 22, 370 S.W.3d 826, 839.

When reviewing a denial of a motion for directed verdict, we determine whether the jury’s verdict is supported by substantial evidence. See Wal-Mart Stores, Inc. v. P.O. Market, Inc. , 347 Ark. 651, 664-65, 66 S.W.3d 620, 628-29 (2002). Substantial evidence is that of sufficient force and character to compel a conclusion one way or another with reasonable certainty. Id. We review the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. Id. In conducting our review, we do not try issues of fact. Id. Rather, we simply examine the record to determine if there is substantial evidence to support the jury’s verdict. Id. However, questions of law will be reviewed de novo. Id.

A.

Generally, the denial of summary judgment is not reviewable on appeal. See Ball v. Foehner , 326 Ark. 409, 412, 931 S.W.2d 142, 144 (1996). This is true even after a trial on the merits. Id. Though the City recognizes this rule, it nevertheless urges our review. It argues an exception is warranted because the circuit court denied the motion on the day of trial. As a result, there was no opportunity to pursue an interlocutory appeal. And thus, the City claims it would be "unduly prejudicial" if we declined to consider the denial now.

We disagree. Even if the motion had been denied earlier in the litigation, there would have been no basis for review. A denial of summary judgment is reviewable only when it results in a denial of sovereign immunity or the immunity of a government official. See Ark. R. App. P.–Civ. 2(a)(10). The City’s motion did not raise an issue of immunity that would allow review under this rule. Though we have recognized narrow circumstances where review would be proper outside of Rule 2(a)(10), those exceptions are inapplicable here. See Cannady v. St. Vincent Infirmary Medical Center , 2018 Ark. 35, at 11–12, 537 S.W.3d 259, 265–66 (outlining exceptions).

The City’s assertion of undue prejudice is particularly troubling for a separate reason. Over a year and a half before trial, the circuit court orally granted summary judgment in favor of the City with respect to the due process claims. The court asked the City to prepare a precedent order. The City inexplicably never followed through. On the day of trial, the City sought a ruling on the motion but made no mention of the prior bench ruling. The court denied the motion and the jury subsequently found in favor of Nelson on the due process claims. As a result, the City must pay nearly $250,000 in damages, fees, and costs.

We recognize that mistakes happen. The record suggests that multiple City attorneys handled this case since its inception in 2014. Indeed, the attorney who received the bench ruling was not the same attorney who handled the case at trial. But this costly mistake is magnified by the fact that Little Rock taxpayers must pay for it. The responsibility of safeguarding the public’s trust and funds must not be taken lightly. We urge the City Attorney’s Office to ensure that such needless errors are not repeated.

B.

On to the heart of this case: the jury’s verdict finding that the installment fee orders violated due process and holding the City liable for the violation.

1.

The City first argues that the installment fee practice did not violate due process and thus it was entitled to a directed verdict. Our preservation requirement bars all but one of the City’s arguments in support of this point. We may only consider the City’s contention that Nelson was provided adequate process because she could have appealed to the circuit court or asked Judge Fleming for a refund of the installment fee. Given those avenues for relief, which Nelson did not pursue, the City claims there was no due process violation.

The City’s assertion that due process was not triggered based on the de minimis interest in the installment fee and the "small" risk of erroneous deprivation was not raised below and is thus unpreserved on appeal. See Found. Telecomm., Inc. v. Moe Studio, Inc. , 341 Ark. 231, 237, 16 S.W.3d 531, 535 (2000). The City’s claim that this suit constitutes an impermissible collateral attack is likewise unpreserved. The City only...