McCrory v. Johnson
Decision Date | 18 July 1988 |
Docket Number | No. 88-19,88-19 |
Citation | 755 S.W.2d 566,296 Ark. 231 |
Parties | Barbara McCRORY, Individually, and Thomas McCrory, a Minor, by His Mother and Next Friend, Barbara McCrory, Appellants, v. Thomas J. JOHNSON, Brad W. Houston, Jacquetta Alexander, in Her Official Capacity as Pulaski County Circuit Clerk, Appellees. |
Court | Arkansas Supreme Court |
James Depriest, Griffin J. Stockley, Little Rock, for appellants.
Robert Keller Jackson, Little Rock, Keith Vaughn, Jacksonville, for appellees.
This appeal questions the constitutionality of our prejudgment attachment code provisions, Ark.Code.Ann. §§ 16-110-101--16-110-309 (1987). We find them unconstitutional.
The facts of the case are as follows: On September 15, 1986, appellant Barbara McCrory leased a house from appellee Thomas J. Johnson through his rental agent, appellee Brad W. Houston. Under the written lease agreement, McCrory was to pay $600.00 a month for one year. After McCrory failed to pay part of the December rent and all of the January and February rent, Houston placed a note on her door asking her to pay rent or vacate the premises. When she did not respond, he placed a termination notice on the door requesting her to vacate the premises within ten days. Shortly after the ten-day period expired, Houston removed all the personal property (furniture, appliances, and household items) from the residence and deposited it at a local storage facility.
On April 9, 1987, Johnson filed a complaint in Pulaski County Circuit Court alleging that McCrory owed him the sum of $2,940.00 for rent, late charges, and damages to his property. With this complaint, he filed an affidavit for attachment, supported by bond, alleging that Barbara McCrory was about to remove her personal property (already stored by Houston) from the state. On April 10, the circuit court clerk issued a writ of attachment, which was served on April 30. On May 7, McCrory filed a motion to dissolve the writ, which contained, in part, a prayer for an immediate hearing.
Subsequently, Barbara McCrory, individually and on behalf of her son, Thomas McCrory, filed a counterclaim and an amended complaint and counterclaim against Houston and Johnson alleging, among other causes of action, that they had violated the Arkansas forcible entry and detainer code provisions, Ark.Code Ann. §§ 18-60-301--18-60-312 (1987), by removing her property from the house. The McCrorys also asserted that the actions of Houston and Johnson in attaching the property pursuant to our prejudgment attachment code provisions denied them (the McCrorys) due process of law guaranteed by the fourteenth amendment. The McCrorys asserted that the attachment code provisions are unconstitutional because they do not require that prompt notice of the attachment or of possible state and federal exemptions be given to the debtor and do not make available a prompt hearing at which a debtor can claim exemptions. Additionally, the McCrorys joined appellee Jacquetta Alexander, the Circuit Clerk of Pulaski County, as third-party defendant, alleging that she denied them due process of law by issuing the writ of attachment through her agent.
At a hearing on May 29, 1987, the circuit court, Special Judge Ralph Patterson presiding, sustained the writ of attachment granted in favor of Johnson. In a pretrial order filed on July 29, 1987, the trial court dismissed with prejudice the portion of the McCrorys' counterclaim concerning the constitutionality of our prejudgment attachment code provisions on the basis of this court's holding in Springdale Farms, Inc. v. McIlroy Bank and Trust, 281 Ark. 371, 663 S.W.2d 936 (1984), that the provisions are constitutional. The trial court also dismissed the claim against defendant Alexander. On July 30, 1987, the trial court, contravening Judge Patterson's decision, discharged the writ of attachment because Johnson had not met his burden of showing, pursuant to Ark.Code Ann. § 16-110-101 (1987), that Barbara McCrory was about to remove or had removed her property, or a material part thereof, from the state.
At the conclusion of the jury trial, the court entered judgment for Johnson against Barbara McCrory for $2,862.40 damages, plus reasonable attorney's fees, interest, and costs and dismissed with prejudice the McCrorys' counterclaim against Johnson and Houston. From this order, the McCrorys appeal.
The appellees assert that the McCrorys' appeal on the constitutionality of the code provisions and on the dismissal of the claim against Alexander should be dismissed as untimely. We disagree.
As previously noted, in a pretrial order of July 29, 1987, the trial court dismissed the McCrorys' claim concerning the constitutionality of our code provisions and also the claim against third-party defendant Jacquetta Alexander. The McCrorys did not file a notice of appeal at this time but instead waited until after the trial court rendered final judgment in the case. Although the notice of appeal was filed within thirty (30) days of the order rendering final judgment, it was not filed within thirty (30) days of the pretrial order.
It is clear we would have dismissed the appeal if the McCrorys had appealed from this intermediate order since such orders are not final and appealable unless Ark.R.Civ.P. 54(b) is utilized. See Rone v. Little, 293 Ark. 242, 737 S.W.2d 152 (1987); Kilcrease v. Butler, 291 Ark. 275, 724 S.W.2d 169 (1987); 3-W Lumber Co. v. Housing Auth. for the City of Batesville, 287 Ark. 70, 696 S.W.2d 725 (1985). See also Mueller v. Killam, 295 Ark. 270, 748 S.W.2d 141 (1988); Burnley v. Mutual of Omaha, 291 Ark. 185, 723 S.W.2d 363 (1987). Granted, the McCrorys could have asked for certification under 54(b) in order to appeal from these orders. However, they had no duty to do so. The underlying policy of Rule 54(b) is to avoid piecemeal appeals, not encourage them. Murry v. State Farm Mut. Auto. Ins. Co., 291 Ark. 445, 725 S.W.2d 571 (1987). Accordingly, the appellees' contention has no merit.
ATTACHMENT CODE PROVISIONS.
The McCrorys contend that our prejudgment attachment code provisions [Ark.Code Ann. §§ 16-110-101--16-110-309 (1987) ] violate the due process clause of the fourteenth amendment because they do not require that prompt notice be given to the debtor of the attachment or of possible state and federal exemptions and do not make available a prompt hearing at which the debtor can claim exemptions. In addition, appellants challenge our code provisions on the grounds that they create a risk of erroneous deprivation by allowing writs of attachment to be issued by a circuit clerk instead of a judge. All of their contentions have merit.
Before we scrutinize the appellants' claims, we note that they served the office of the Attorney General with copies of their amended complaint and counterclaim in accordance with Ark.Stat.Ann. § 34-2510 (Repl.1962) [Ark.Code Ann. § 16-111-106 (1987) ], which gives the Attorney General the discretionary right to appear in any case where an Arkansas statute is challenged as unconstitutional. The office of the Attorney General declined the invitation by letter to the trial court and did not participate as a party litigant.
In Springdale Farms, Inc., supra, we held that our prejudgment attachment scheme was constitutional in that it sufficiently met six procedural due process "safeguards" necessary for a valid prejudgment attachment. These safeguards, which emanate from North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975); Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); and Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), are as follows:
(1) the affidavit for the writ of attachment must allege specific facts which justify attachment [Ark.Code Ann. § 16-110-106 (1987) ];
(2) the petitioner must post a bond guaranteeing the defendant damages if the writ is dissolved [Ark.Code Ann. § 16-110-107 (1987) ];
(3) the respondent or defendant must be allowed to regain possession by posting bond [Ark.Code Ann. § 16-110-117 (1987) ];
(4) requisite proof of the need for a writ must be made before a judge;
(5) an immediate hearing must be allowed, and at the hearing, the burden of proof is with the petitioner to justify the attachment; and
(6) if the writ is dissolved, damages and attorney's fees must be awarded to the debtor [Ark.Code Ann. § 16-110-131 (1987) ].
In so holding, we acknowledged that our statutory scheme did not exactly meet the fourth requirement because it permits writs to be granted by a circuit clerk instead of a judge. Ark.Code Ann. § 16-110-106 (1987). Notwithstanding, we found that our scheme met the "safeguards" test and satisfied due process for the following reason: "Because our statute requires a recital [by the creditor in an affidavit] of specific facts [of the grounds for the attachment] by one with personal knowledge, the Clerk's role rises above that of a mere court functionary." See Ark.Code Ann. § 16-110-106 (1987); Ark.Code Ann. § 16-110-101 (1987).
In addition, we found that the fifth safeguard was adequately met because a debtor (1) can retain possession of his attached property by posting a bond under Ark.Stat.Ann. § 31-124 (Repl.1962) [Ark.Code Ann. § 16-110-117 (1987) ]; (2) can, upon reasonable notice to the plaintiff, move at any time to discharge the attachment under Ark.Stat. Ann. § 31-128 (Repl.1962). Ark.Code Ann. § 16-110-118 (1987) ]; and (3) can move to discharge the attachment at any time before the attachment is sustained under Ark.Stat.Ann. § 31-149 (Repl.1962) [Ark.Code Ann. § 16-110-130 (1987) ].
After Springdale Farms, Inc., we decided In the Matter of Evatt, 291 Ark. 153, 722 S.W.2d 851 (1987), in which we held that our temporary guardianship statute...
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