Florence by Matthews v. Taylor

• Decision Date: 09 September 1996
• Docket Number: No. 95-1170,95-1170
• Parties: Marilyn FLORENCE, Age 9; Vernice Price, Age 8; and Robert Matthews, Age 6 by their Mother Elsie MATTHEWS and Elsie Matthews, Individually, Appellants, v. Captoria TAYLOR, Appellee.
• Court: Arkansas Supreme Court

Page 330

928 S.W.2d 330

325 Ark. 445

Marilyn FLORENCE, Age 9; Vernice Price, Age 8; and Robert

Matthews, Age 6 by their Mother Elsie MATTHEWS and Elsie Matthews, Individually, Appellants, v. Captoria TAYLOR, Appellee.

No. 95-1170.

Supreme Court of Arkansas.

Sept. 9, 1996.

Heather Patrice Hogrobrooks, Forrest City, for appellant.

Scott M. Strauss, Little Rock, for appellee.

BROWN, Justice.

This case arises from a dismissal of the complaint of appellants Elsie Matthews on behalf of Marilyn Florence, age 9; Vernice Price, age 8; and Robert Matthews, age 6; and Elsie Matthews, individually. The matter was dismissed with prejudice by the trial judge on motion of appellee Captoria Taylor for the "repeated failure" of appellants and their counsel to attend trial. Appellants now appeal and assert that the dismissal denied them their constitutional rights to an impartial tribunal as well as to notice, opportunity to be heard, and access to the courts. They further contend that the dismissal constituted an abuse of the trial judge's power. We disagree and affirm the dismissal.

The pertinent facts are these. The matter was set to be tried before a jury in Lee County Circuit Court on August 30, 1995. At 9:10 a.m. on August 29, 1995, appellants filed a motion for a continuance, showing that a necessary witness was unavailable for trial, that a nephew and cousin of the appellants had drowned two days before, that appellants' counsel had three "criminal cause numbers" that were set for trial in St. Francis County on August 30, 1995, and that appellants' counsel had briefs due in this court on August 31, 1995. The motion further alleged that appellee's counsel had been informed of the need for a continuance on August 28, 1995.

Neither appellant Elsie Matthews nor her attorney, Heather Patrice Hogrobrooks, appeared for jury trial at 9:00 a.m. on August 30, 1995. At 9:13 a.m. on that date, a hearing was held. The trial judge stated that he had been faxed a copy of the appellants' motion for continuance mid-morning on August 29, 1995, and that he had communicated with counsel for appellee who objected to the motion. The judge stated that he told appellee's counsel he would not entertain the motion without an opportunity for counsel to be heard. The judge stated he next telephoned counsel for appellants and informed her that counsel for appellee objected to the motion and that he would not consider the motion "without both parties either being before the court on a conference call on the telephone or in person." The judge added that he heard nothing further from appellants' counsel.

Counsel for appellee then advised the trial judge that the matter had been set for jury trial three times. The first time, appellants and their counsel failed to appear on the day of the trial, and the trial judge continued the matter on his own motion. The record reflects that this occurred on September 13, 1994. A few months later, appellants' counsel moved for a continuance two days before the jury trial which had been set. That motion was granted. Now, appellee's counsel maintained, appellants and their counsel had again failed to appear, while appellee had witnesses en route and family present and was prepared to go to trial. Appellee's counsel further noted that the circuit clerk's office had been erroneously advised by Ms. Hogrobrooks's secretary on August 29, 1995, that a jury panel should not be called due to a continuance. Appellee's counsel moved to dismiss the matter.

The trial judge refused to grant the motion for continuance on the basis that it had never been presented for consideration and granted the appellee's motion to dismiss. The judge added that he had telephoned the trial judge in Forrest City and determined from him that Ms. Hogrobrooks did not have a case scheduled for trial in that city on August 30, 1995. Ms. Hogrobrooks disputes that fact and filed an Order Certifying Court Attendance, which verified that she had three of her cases set for trial in Forrest City on that date and that she appeared in order to answer those cause numbers.

The appellants argue as their first point on appeal that they were denied their constitutional rights to due process and equal protection because (1) the trial judge did not inform them that their trial was still scheduled for August 30, 1995; and (2) the trial judge had decided before the reported hearing that he would dismiss the matter with prejudice. Neither argument has merit.

The trial judge specifically stated for the record that he had advised appellants' counsel that he would not consider the continuance motion without both counsel appearing in person or by conference call. This did not occur. Further, this court has made it very clear that it is incumbent upon the movant to obtain a ruling on a motion. Carpetland of Northwest Arkansas, Inc. v. Howard, 304 Ark. 420, 803 S.W.2d 512 (1991). That was not done in this case. In short, there was nothing to suggest to appellants or their counsel that the matter would not be tried on August 30, 1995. Secondly, the record reflects, as does the Order of Dismissal, that appellee's counsel made the motion to dismiss the cause. Nothing in the record before this court indicates that the trial judge had predetermined the motion before the reported hearing. We, of course, are limited in our review to the record before this court. Edwards v. State, 321 Ark. 610, 906 S.W.2d 310 (1995).

For their second issue, appellants argue lack of notice of the possibility of dismissal as well as an impingement of their opportunity to be heard on that issue and their access to the courts. This argument also is meritless. To be sure, a cornerstone of our legal system is that a person not lose his or her life, liberty, or property without notice and an opportunity to be heard. Greene v. Lindsey, 456 U.S. 444, 102 S.Ct. 1874, 72 L.Ed.2d 249 (1982). But it is basic that the mere filing of a motion does not continue a jury trial, and the trial judge expressly conveyed this point to counsel for the appellants the day before the trial. Counsel simply failed to appear at trial or to obtain the necessary continuance order and, thus, should have known that dismissal might well be a natural consequence of her actions.

The United States Supreme Court has held that failure to appear is a ground for dismissal even though notice of dismissal as a possible sanction was not given to counsel. Link v. Wabash R.R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). In Link, the district court entered an order of dismissal when the petitioner failed to attend a pretrial conference which he knew about but which, he contended, he was too busy to attend. The Court, in upholding the district court's dismissal, held that specific notice of possible dismissal and a hearing regarding the same were not required by due process:

Nor does the absence of notice as to the possibility of dismissal or the failure to hold an adversary hearing...