Tyson v. Roberts, 85-185

• Decision Date: 09 December 1985
• Docket Number: No. 85-185,85-185
• Citation: 287 Ark. 409,700 S.W.2d 50
• Parties: Kenneth TYSON, Appellant, v. Paul K. ROBERTS, Circuit Judge, Appellee.
• Court: Arkansas Supreme Court

Page 50

700 S.W.2d 50

287 Ark. 409

Kenneth TYSON, Appellant, v. Paul K. ROBERTS, Circuit Judge, Appellee.

No. 85-185.

Supreme Court of Arkansas.

Dec. 9, 1985.

Hani W. Hashem, Monticello, for appellant.

John R. Byrd, Hamburg, for appellee.

GEORGE ROSE SMITH, Justice.

This is a petition for a writ of mandamus to direct Circuit Judge Paul K. Roberts to set aside an order transferring this litigation to the chancery court and to direct him to assume jurisdiction of the case. The writ must be denied, because mandamus is not the proper remedy in the situation presented to us in this case. Our jurisdiction arises under Rule 29(1)(f).

In August, 1984, Ray McNeice sued the petitioner, Kenneth Tyson, in the Ashley Chancery Court, seeking an accounting. The complaint alleged that McNeice had hired Tyson, a contractor, to construct improvements to McNeice's home, but Tyson had fraudulently overcharged McNeice for various items of labor and materials. The prayer was that Tyson be compelled to account, and produce supporting documents, for all money spent on the job. Tyson's answer and counterclaim alleged that the contract price had been $43,252.90, that Tyson had performed the contract with extras, and that McNeice owed Tyson $4,806.61, plus damages for injury to Tyson's credit standing. Tyson later amended his counterclaim to ask for punitive damages for McNeice's malicious prosecution of the case, slanderous statements about Tyson's workmanship, damage to his reputation, and so on.

In March, 1985, Tyson moved that the case be transferred to circuit court, asserting that the accounts were not complicated and that Tyson was entitled to a jury trial of his claim for punitive damages. The chancellor, over McNeice's objection, granted the motion to transfer. McNeice promptly obtained from the circuit court an order retransferring the case to chancery, with a finding by the circuit judge that the accounts were complicated, that expert testimony by accountants would be required, and that a court of equity could grant complete relief.

At this point Tyson filed his petition in this court for a writ of mandamus to compel the circuit judge to set aside his order and assume jurisdiction of the case. The petition asks alternatively that if we find the issues sufficiently complicated to require an equitable accounting, Tyson's tort claims should be severed and allowed to proceed in circuit court. Counsel have submitted briefs under Rule 16.

The petition for mandamus must be denied, for it is not the petitioner's proper remedy. We have repeatedly held that mandamus will not issue to review or control a trial court's exercise of discretion. Ellis v. Rockefeller, 245 Ark. 53, 431 S.W.2d 848 (1968); Rolfe v. Spybuck Drainage Dist. No. 1, 101 Ark. 29, 140 S.W. 988 (1911). The writ cannot be used to correct an erroneous exercise of discretion or to compel the trial court to change such a ruling. Pickens v. Circuit Court of Prairie County, 283 Ark. 97, 671 S.W.2d 163 (1984); Baker v. Harrison, 247 Ark. 377, 445 S.W.2d 498 (1969). "We can issue the writ to require a trial judge to hear a case, but we cannot tell him how to decide it." Massey v. Enfield, 259 Ark. 85, 531 S.W.2d 706 [287 Ark. 411] (1976).

A situation similar to the case at bar was considered in Ark. General Utilities Co. v. Smith, 188 Ark. 413, 66 S.W.2d 297 (1933). There the case was filed in circuit court, transferred to chancery, and then retransferred to law. Just as in the case at hand a petition for mandamus was then filed in this court, asking that the chancellor be directed to assume jurisdiction again. We denied the writ, saying:

Either the chancery court or the circuit court may,...