McIntosh v. Southwestern Truck Sales, 90-66

• Decision Date: 21 December 1990
• Docket Number: No. 90-66,90-66
• Citation: 304 Ark. 224,800 S.W.2d 431
• Parties: B.A. McINTOSH, Pulaski County Assessor and Ken Taylor, Pulaski County Collector, Appellants, v. SOUTHWESTERN TRUCK SALES, Appellee.
• Court: Arkansas Supreme Court

Page 431

800 S.W.2d 431

304 Ark. 224

B.A. McINTOSH, Pulaski County Assessor and Ken Taylor Pulaski County Collector, Appellants, v. SOUTHWESTERN TRUCK SALES, Appellee.

No. 90-66.

Supreme Court of Arkansas.

Dec. 21, 1990.

Nelwyn Davis, Little Rock, for appellants.

Homer Tanner, North Little Rock, Robert Ross, Little Rock, for appellee.

DUDLEY, Justice.

The appellee taxpayer, Southwestern Truck Sales, Inc., filed a complaint in Chancery Court of Pulaski County asking that B.A. McIntosh, the Pulaski County Assessor, and Ken Taylor, the Pulaski County Collector, be enjoined from taking any further action to collect taxes from the taxpayer for 1986. The county officials filed a motion to dismiss because of lack of subject matter jurisdiction in chancery court. The taxpayer filed a motion for summary judgment. The chancellor denied the county officials' motion to dismiss for lack of subject matter jurisdiction and granted summary judgment for the taxpayer. The chancellor erred in exercising jurisdiction and, accordingly, we reverse and dismiss.

We must first address a procedural matter. The county officials argue that the taxpayer's brief must be stricken because Homer Tanner, the taxpayer's attorney, submitted to the trial court a twenty-five paragraph affidavit in support of the motion for summary judgment. The affidavit is a sworn statement of facts. When the affiant is an attorney in the case, and the affidavit is submitted in support of a motion, whether attached to the motion itself or to the brief, it is tantamount to the attorney testifying. We have repeatedly admonished members of the bar that an attorney cannot serve as both a witness and an advocate in the same action. Bishop v. Linkway Stores, Inc., 280 Ark. 106, 655 S.W.2d 426 (1983). Neither can an attorney represent a party on appeal if the attorney testified below. Id. When an attorney serves as both witness and advocate in the same action, however, that fact alone does not require automatic reversal and dismissal of a case, as argued by appellants. In Calton Properties, Inc. v. Ken's Discount Bldg. Materials, Inc., 282 Ark. 521, 669 S.W.2d 469 (1984), we clearly stated that the attorney's affidavit was not evidence and that we would not consider it. Without it, there was simply no evidence at all which would have allowed this Court to affirm. Consequently, the judgment was reversed and the case dismissed. Had there been other evidence upon which this Court could have affirmed, however, it would have done so. Accordingly, it was wrong for Mr. Tanner to serve as a witness and an attorney, and we will not consider the affidavit as evidence; however, we refuse to strike the taxpayer's brief and automatically reverse and dismiss the case.

We consider the case on the jurisdictional issue, and reverse and dismiss because the chancery court was without jurisdiction. The taxpayer owned two lots, designated Lot A and Lot B of the Inmon Addition to North Little Rock. A building was built on Lot A. Lot B remained unimproved. The taxpayer received three tax bills for 1986, just as it had in 1985. According to the affidavit of Buell James, Deputy Assessor, and the officers' responses to requests for admission, one tax bill was for the land of Lot A, one was for Lot B, and the third tax bill, designated with the letter "E," was for the improvements on Lot A. The 1985 tax bills were paid. In the process of selling Lots A and B, the taxpayer delivered all three 1986 tax bills to its attorney who was also serving...