Duhon v. Gravett, 89-271

• Decision Date: 29 May 1990
• Docket Number: No. 89-271,89-271
• Parties: Brigiette DUHON, Appellant, v. Carroll GRAVETT, Pulaski County Sheriff; Tommie Miller, Pulaski County Deputy; Bobby Jones, Pulaski County Municipal Court Administrator; and Pulaski County, Appellees.
• Court: Arkansas Supreme Court

Page 155

790 S.W.2d 155

302 Ark. 358

Brigiette DUHON, Appellant, v. Carroll GRAVETT, Pulaski County Sheriff; Tommie Miller,

Pulaski County Deputy; Bobby Jones, Pulaski

County Municipal Court Administrator;

and Pulaski County, Appellees.

No. 89-271.

Supreme Court of Arkansas.

May 29, 1990.

James Depriest, Griffin J. Stockley, Little Rock, for appellant.

Olan W. Reeves, Asst. Atty. Gen., Little Rock, for appellees.

GLAZE, Justice.

Appellant challenges Arkansas's postjudgment execution laws set out in Ark.Code Ann. §§ 16-66-101 to 16-66-422 (1987 and Supp.1989). She argues the laws violate the due process clause of the 14th amendment to the United States Constitution because they fail to provide the required notice and hearing to judgment debtors. The trial court rejected the appellant's arguments below, and she brought this appeal.

The facts are undisputed. Appellant took her car to the Firestone Tire and Rubber Company for repairs and a dispute resulted over the work performed. Appellant stopped payment on her check, and Firestone filed suit against her, alleging nonpayment. Firestone obtained a default judgment and subsequently had the sheriff's office serve a writ of execution on the appellant at her residence, where a deputy sheriff seized her personal property, including mostly household goods and furniture. The deputy told appellant that she had a right to redeem her property prior to its sale. Sometime after appellant's property was seized but before it was sold, she obtained counsel and brought suit for declaratory relief against Firestone and the appellees, who were the officials involved in the issuance and service of the writ of execution on appellant. In the suit, she asked the trial court to declare Arkansas's postjudgment execution laws to be unconstitutional. Ultimately, appellant paid Firestone's judgment in full and regained her property. She then dismissed Firestone from the suit, but pursued her constitutional claims in her action against the appellees. She also amended her complaint alleging she was entitled to further relief under 42 U.S.C.A. § 1983 and 42 U.S.C.A. § 1988 (1981).

Although appellees prevailed against the appellant's claims below, they chose not to participate in this appeal, however, we granted the attorney general's request to intervene on appeal. While he fails to actually defend the constitutionality of writ of execution statutes in issue, he contends this court should not reach appellant's constitutional arguments because no justiciable controversy exists. The attorney general points out that the appellant redeemed her property a few days after it was seized so, even if she had been entitled to certain notices which she did not receive, she was never harmed or damaged. In sum, the state concludes the appellant is not being threatened with enforcement of the statutes she now questions, so she does not have standing to request they be declared unconstitutional.

Undoubtedly, appellant's redemption of her property rendered moot the justiciable controversy between her and Firestone. Nevertheless, where considerations of public interest or the prevention of future litigation are present, the choice remains ours as to whether we may elect to settle an issue, even though moot. Owens v. Taylor, 299 Ark. 373, 772 S.W.2d 596 (1989). Future litigation may well be curtailed by our decision to resolve the issues presented in this appeal even though the controversy between the parties is moot, but the main reason we are compelled to go forward is based on the fact that a substantial question exists underlying the constitutionality of Arkansas' writ of execution laws that will affect countless numbers of Arkansans each year. We note that debtors, in prior actions, have successfully raised similar constitutional questions concerning flaws in Arkansas' postjudgment garnishment statutes and its prejudgment attachment laws. See Davis v. Paschall, 640 F.Supp. 198 (E.D.Ark.1986); McCrory v. Johnson, 296 Ark. 231, 755 S.W.2d 566 (1988).

The primary argument raised in this matter concerns appellant's charge that Arkansas' writ of execution laws fail to give judgment debtors, such as herself, written notice that they have a right to claim certain federal and state exemptions. Recently, we held Arkansas' prejudgment attachment code provisions unconstitutional because those laws failed to provide that debtors be given notice of possible state or federal exemptions. McCrory, 296 Ark. at 236-240, 755 S.W.2d at 568-571. In reaching our decision in McCrory, we relied in part upon the holdings in Davis v. Paschall, 640 F.Supp. 198, and Dionne v. Bouley, 757 F.2d 1344 (1st Cir.1985). The Davis court, in considering the constitutionality of Arkansas's postjudgment garnishment statutes stated the following:

The court [in Dionne v. Bouley ], agreed with the holdings in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) and Brown v. Liberty Corp., 539 F.2d 1355 (5th Cir.1976) that due process does not require notice or hearing before a postjudgment attachment but held that once the attachment is made, removing the possibility that the debtor will secrete his assets, the debtor must be notified and given a timely opportunity to challenge any sequestration of his property which the law makes unattachable. The court reasoned that this was required because an unlawful attachment of the debtor's exempt property affects the debtor's rights in a way in which the judgment does not, citing Griffin v. Griffin, 327 U.S. 220, 66 S.Ct. 556, 90 L.Ed. 635 (1945). Dionne, 757 F.2d at 1352. The court...