Jenkins v. Goldsby
| Decision Date | 13 January 1992 |
| Docket Number | No. 90-168,90-168 |
| Citation | 307 Ark. 558,822 S.W.2d 842 |
| Parties | Forrest N. JENKINS; James R. Williford; Joe Taylor, III and Citizens Bank of Marion, Appellants, v. Thomas B. GOLDSBY, Jr. and Mid-South Mortgage Company, Inc., Appellees. |
| Court | Arkansas Supreme Court |
Kent J. Rubens, West Memphis, F. Guthrie Castle, Jr., Memphis, for appellants.
C.B. Nance, Jr., West Memphis, James D. Causey, Memphis, Michael Bearden, Osceola, for appellees.
RAY S. SMITH, Jr., Special Justice.
On January 30, 1989 Thomas B. Goldsby, Jr., and Mid-South Mortgage Company, Inc. (hereinafter referred to as appellees), filed a complaint in the Chancery Court of Crittenden County seeking an accounting, a declaratory judgment, rescission, a preliminary injunction, and restitution. Included in the allegations of the complaint were assertions that the stock sale agreement at issue was obtained by appellants as a result of unfair advantage, duress, overreaching and without consideration.
On February 20, 1989, the appellants filed two motions. The first was a motion to extend the time for an answer and the second, a motion to require the appellees to comply with Ark.R.Civ.P. 9(b) to make their allegations more definite and certain. The appellants' prayer also asked that the complaint be dismissed for failure to comply with Rule 9(b).
Both parties filed additional motions. The Court held a hearing on March 14, 1989, with all parties present. He subsequently entered an order scheduling depositions to begin on April 17, 1989, and gave appellees 30 days in which to amend their pleadings, stating with particularity the facts of coercion, duress and other matters. On April 7, 1989, the appellees filed a motion to dismiss without prejudice under the provisions of Ark.R.Civ.P. 41(a).
On April 18, 1989, the appellants responded to the motion requesting that the Court dismiss with prejudice and for other sanctioned relief. On July 19, 1989, another hearing was held. After hearing the arguments of counsel the Court asked for authorities from the various counsel. A final hearing was held on November 22, 1989, at which all counsel were present, and after argument, the Court entered its order holding in paragraphs 4 and 5 as follows:
4. The court disagrees and concludes that it is bound by the recent decision of the Arkansas Supreme Court which states that the right to a voluntary nonsuit is absolute.
5. The court further finds that sanctions should not be imposed and are not warranted because after the complaint was filed and in response to a motion to dismiss filed by the defendants, counsel for plaintiffs stated that she needed to review the basis for plaintiffs' claims for fraud and conflict of interest and upon review filed a motion for nonsuit.
The Court also authorized the appellants to submit further evidence but acknowledged it was not changing its opinion, nor would it consider the exhibits. From this order, the appellants appealed, and we now affirm the Chancellor.
In the case now before us, within a 67 day period there was a complaint filed, motions filed to make more definite and certain and for taking of depositions, for which notice was given, and a motion to dismiss. Appellants raise two questions:
(1) Is the right of a voluntary nonsuit under Ark.R.Civ.P. 41 mandatory?
(2) How does Ark.R.Civ.P. Rule 11 apply where a voluntary nonsuit has been filed?
We have held in both Duty v. Watkins, 298 Ark. 437, 768 S.W.2d 526 (1989), and Brown v. St. Paul Mercury Ins. Co., 300 Ark. 241, 778 S.W.2d 610 (1989), that a voluntary nonsuit is an absolute right prior to final submission to a jury or to the court sitting as a jury, and in accordance with other conditions therein. The matter of the applicability of sanctions was fully reviewed and discussed in Bratton v. Gunn, 300 Ark. 140, 777 S.W.2d 219 (1989).
In Bratton v. Gunn, supra, suit was filed alleging that an insurance agent had accepted premiums but did not obtain insurance coverage. This was denied by the agent, who subsequently filed a motion for summary judgment, attaching affidavits and documentary evidence as exhibits. No response to the motion for summary judgment was filed and, on the day before hearing, the appellee (plaintiff below) filed for and obtained a voluntary nonsuit. Shortly before the nonsuit was entered, the appellant (defendant below) filed a motion for Ark.R.Civ.P. Rule 11 sanctions, to which were attached an affidavit and other exhibits. Both parties appeared before the Trial Court for a hearing on the Rule 11 motion. No testimony was taken, no exhibits were introduced, and no record was made of the proceedings. The Trial Court entered its order in which it held that the motion for Rule 11 sanctions was without merit and that sanctions should not be granted.
Bratton v. Gunn, supra has many similarities to the case at bar in that...
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...that the rule creates an absolute right to a nonsuit. Whetstone v. Chadduck, 316 Ark. 330, 871 S.W.2d 583 (1994); Jenkins v. Goldsby, 307 Ark. 558, 822 S.W.2d 842 (1992). Appellant does not claim that the nonsuit was taken without her consent or that she did not understand the concept of ta......
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