Thomas v. Clear Investigative Advantage, LLC

• Decision Date: 25 October 2017
• Docket Number: No. CV–17–19,CV–17–19
• Citation: 531 S.W.3d 458
• Parties: Jeff THOMAS, Appellant v. CLEAR INVESTIGATIVE ADVANTAGE, LLC d/b/a Sentrylink, Appellee
• Court: Arkansas Court of Appeals

531 S.W.3d 458

Jeff THOMAS, Appellant

v.CLEAR INVESTIGATIVE ADVANTAGE, LLC d/b/a Sentrylink, Appellee

No. CV–17–19

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered: October 25, 2017

Sutter & Gillham, P.L.L.C., Little Rock, by: Luther Oneal Sutter, for appellant.

Barber Law Firm PLLC, by: Robert L. Henry III and Anthony J. Marelle, Little Rock, for appellee Clear Investigative Advantage.

RAYMOND R. ABRAMSON, Judge

The Pulaski County Circuit Court granted summary judgment in favor of appelleeClear Investigative Advantage, LLC(Clear Investigative), with respect to appellantJeff Thomas's Fair Credit Reporting Act (FCRA) claim and found that Clear Investigative "reasonably relied upon the AOC [Arkansas Administrative Office of the Courts] website such that summary judgment is appropriate."¹From that grant of summary judgment, Thomas now appeals.For the following reasons, we affirm.

Clear Investigative is a credit-reporting agency that was hired by Express Employment Agency(Express) to supply a criminal-background report on Thomas.Clear Investigative delivered that report to Express in January 2014.Thomas had hired Express to assist him in finding a new job and knew Express would obtain a criminal-background report.

The January 2014 report supplied by Clear Investigative to Express was based on public information and records supplied by Courthouse Concepts, Inc.(CCI), an Arkansas corporation and an independent contractor, that provides criminal-background searches.Clear Investigative hired CCI to conduct a search on Thomas in the State of Arkansas.The criminal-background information that CCI supplied to Clear Investigative on Thomas included a report about a criminal conviction.Clear Investigative took its own further steps to verify Thomas's reported criminal-conviction by confirming his name, middle name, date of birth, and the respective records.The criminal-conviction information reported by CCI was based on court records in the State of Arkansas as reported on the AOC's website.

It is undisputed that the criminal-background information contained in Clear Investigative's January 2014 report to Express is the exact same criminal-background information supplied by CCI and is the exact same criminal-background information shown on the AOC website.Thomas never contacted anyone until long after the January 2014 report had been submitted.Subsequent efforts were made by Thomas's counsel, but Clear Investigative was unable to reach counsel.

As Clear Investigative asserts, it is also imperative in this case to understand that Thomas knew this criminal-background information existed and was found in Arkansas court records.He had known that fact since 2007 and had never taken any steps to correct the records before the January 2014 report.In 2015, Thomas contacted the AOC and obtained a correction letter dated June 1, 2015.However, he had never attempted to obtain a correction letter between learning of the information in 2007 until 2015.

On February 9, 2015, Thomas filed a complaint for an action for defamation, slander, and violation of the FCRA.Clear Investigative filed a motion to dismiss on April 29, 2015 and an amended motion to dismiss on May 27, 2015.Thomas filed an amended and supplemental complaint on June 11, 2015.Clear Investigative filed an amended motion to dismiss Thomas's amended and supplemental complaint on June 18, 2015.Clear Investigative filed a motion for summary judgment on July 5, 2016.The circuit court held a hearing on August 26, 2016, where Thomas orally took a nonsuit of all state-law claims and orally nonsuited his claim against CCI.In its order of dismissal, the circuit court confirmed that Thomas had nonsuited and dismissed all state-law claims—leaving only the FCRA claims.

We note that the circuit court first entered the order granting summary judgment in favor of Clear Investigative; two minutes later, it entered the voluntary dismissal of Thomas's state-law claims and all claims against CCI.As noted above, the order of dismissal without prejudice states, "[I]t is further ordered that all of [Thomas's] state law claims are dismissed without prejudice, leaving only the claims under the Fair Credit Reporting Act."However, the court had just entered summary judgment on that claim.While it initially appears as if there are claims, and even a defendant remaining in the case after dismissal, if the orders are read in conjunction with one another, it is apparent that the court granted the voluntary dismissal of all of Thomas's claims against CCI and all state-law claims against Clear Investigative, leaving only the FCRA claims against Clear Investigative.The court dismissed that claim on summary judgment, so there are no remaining claims or defendants.

The voluntary dismissal was without prejudice, and generally, a circuit court's order granting a nonsuit and dismissing claims, without prejudice is not a final order or an adjudication on the merits because the merits of the cause are not finally determined.SeeBeverly Enters.–Ark., Inc. v. Hillier, 341 Ark. 1, 3, 14 S.W.3d 487, 488(2000).However, in the instant case, Thomas's notice of appeal states that he"abandons all other claims not otherwise asserted, pending review of this Court."

In King v. Jackson, 2014 Ark. App. 488, at 1–2, 2014 WL 4748473, our court held:

The question of whether an order is final and appealable is jurisdictional, and this court is obligated to consider the issue on its own even if the parties do not raise it.Splawn v. Wade, 2013 Ark. App. 187, 427 S.W.3d 89.When a lawsuit contains more than one claim for relief, a judgment that adjudicates fewer than all of the claims is neither final nor appealable.Ark. R. Civ. P. 54(b)(2).A party that has several claims against another party may not take a voluntary nonsuit of one claim and appeal an adverse judgment as to the other claims when it is clear that the intent is to refile the nonsuited claim and thus give rise to the possibility of piecemeal appeals.Pro Transp., Inc. v. Volvo Trucks N. Am., Inc., 96 Ark. App. 166, 239 S.W.3d 537(2006).This is so because a voluntary nonsuit or dismissal leaves the plaintiff free to refile the claim, assuming there has been no previous dismissal.Id.

Our court also noted in Wilson v. Greg Williams Farm, Inc., 2013 Ark. App. 248, at 4–5, 2013 WL 1682616,

[t]hat this problem [of finality] could have been avoided had the appellants' notice of appeal been in compliance with Arkansas Rule of Appellate Procedure–Civil 3.In 2010, the supreme court issued an amendment to Rule 3 to require a new statement in every notice of appeal and notice of cross-appeal from a final order or judgment.See In re: Arkansas Rules of the Supreme Court and Court of Appeals;Rules of Appellate Procedure Civil;andRules of Civil Procedure, 2010 Ark. 288(per curiam).The amended rule provides that a notice of appeal or cross-appeal shall

state that the appealing party abandons any pending but unresolved claim.This abandonment shall operate as a dismissal with prejudice effective on the date that the otherwise final order or judgment appealed from was entered.[Ark. R. Civ. 3(e)(vi)(2012).].

Here, because Thomas has abandoned his voluntarily nonsuited claims in his notice of appeal, he will be able to refile...