White v. Perry

• Decision Date: 16 May 2002
• Docket Number: No. 01-861.,01-861.
• Citation: 74 S.W.3d 628,348 Ark. 675
• Parties: Robert WHITE, v. Jim PERRY, David Hudson, Frank Atkinson, and Marcy Porter, In Their Official Capacities as Assessor, County Judge, Collector, and Treasurer for Sebastian County, Arkansas; Charlie Daniels, In His Official Capacity as Arkansas Land Commissioner; and Jimmie Lou Fisher, Arkansas State Treasurer; Greenwood School District; Hackett School District; Hartford School District; Lavaca School District; Charleston School District; Mansfield School District; Booneville School District; Westark Community College; City of Barling, Arkansas; City of Greenwood, Arkansas.
• Court: Arkansas Supreme Court

74 S.W.3d 628

348 Ark. 675

Robert WHITE, v. Jim PERRY, David Hudson, Frank Atkinson, and Marcy Porter, In Their Official Capacities as Assessor, County Judge, Collector, and Treasurer for Sebastian County, Arkansas; Charlie Daniels, In His Official Capacity as Arkansas Land Commissioner; and Jimmie Lou Fisher, Arkansas State Treasurer; Greenwood School District; Hackett School District; Hartford School District; Lavaca School District; Charleston School District; Mansfield School District; Booneville School District; Westark Community College; City of Barling, Arkansas; City of Greenwood, Arkansas.

No. 01-861.

Supreme Court of Arkansas.

May 16, 2002.

Oscar Stilley, Fort Smith, for appellant.

Thompson & Llewellyn, P.A., by: James M. Llewellyn, Jr., Fort Smith, for appellees Greenwood School District; Hackett School District; Hartford School District; Lavaca School District; Charleston School District; Mansfield School District; and Booneville School District.

Smith, Maurras, Cohen & Redd & Horan, PLC, by: S. Walton Maurras, for appellee Westark Community College.

ROBERT L. BROWN, Justice.

Appellant Robert White raises one issue in his appeal: whether the trial court had authority to deny his motion for a nonsuit in favor of deciding the appellees' motions to dismiss with prejudice. We agree with White that a plaintiff's right to a nonsuit before submission of the case for decision is an absolute right and that the trial court erred in refusing to enter an order granting it. We reverse the order of dismissal and remand this matter with directions to enter an order granting the nonsuit.

On October 10, 2000, White, on his own behalf and on behalf of all other taxpayers similarly situated, filed a complaint in the Sebastian County Circuit Court, Greenwood District, alleging an illegal exaction as a result of taxes collected pursuant to Act 758 of 1995 in violation of Arkansas Constitutional Amendment 59. White named several state and county government officials, school districts, a community college, and a county and cities as defendants. It is these defendants who are the appellees in this matter. Following White's filing of a First Amended Complaint on January 19, 2001, each defendant moved to dismiss the complaint.

On February 20, 2001, White moved for an extension of time in which to file a response to the various motions to dismiss. The trial court granted White's motion and allowed him until March 12, 2001, to respond. The trial court then sent a letter to all parties, scheduling a hearing on the motions to dismiss. Instead of responding to the various motions to dismiss, White filed a Motion to Nonsuit on March 12, 2001.

On March 30, 2001, both the motions to dismiss and White's motion to nonsuit were taken up at the called hearing. At that time, the court considered the motions to dismiss first. After hearing arguments from the parties, the court issued its ruling, stating in part:

The Court is of the opinion that while a plaintiff has a right to take a voluntary nonsuit, it is not effective until the Court signs the order granting the nonsuit. I have not done so because I felt that it was important for the Court to make a ruling on the Motions to Dismiss.

I have reviewed all the material submitted by the defendants. The plaintiff has not responded to the Motions to Dismiss because he thought his action by taking the voluntary nonsuit would alleviate him of that responsibility.

I have tried to go through his Complaint and see that there's any differential between that Complaint and the Complaint that the Supreme Court ruled on in Oxford. I can discern none; that there is no difference, and the rationale for the filing of the Complaint escapes me.

I'm going to dismiss this Complaint with prejudice. The dismissal is being granted upon the defendants', all their Motions to Dismiss, based upon the aspect of res judicata, that this was previously litigated and that the Supreme Court has settled the law.

On April 11, 2001, the trial court entered its order granting the motions to dismiss. Specifically, the court ruled:

7. The Plaintiff's Motion to Nonsuit has not been ruled on by this Court. Rule 41 of the Arkansas Rules of Civil Procedure provides that a nonsuit is not effective until the court enters an order granting same. For the reasons set forth herein the court exercises its discretion to consider the Motions to Dismiss first.

8. The Court finds that the Plaintiff's complaint is identical to the complaint that had been filed by Mr. Stilley on behalf of Earl Oxford in both the Greenwood District (case No. 99-35-G) and the Fort Smith case filed by Mr. Stilley in the District of Sebastian County, Arkansas. On March 9, 2000 the Arkansas Supreme Court in both the Oxford case filed in the Greenwood District (Sup. Ct.99-1141) and the case filed in the Fort Smith District determined that the trial courts' decisions to dismiss both cases because of the failure of the Plaintiffs to comply with the voluntary payment of taxes rule was correct and affirmed the dismissals with prejudice. The Plaintiff herein, by Mr. Stilley, filed an identical complaint some seven months after the Supreme Court reached its decision. The Supreme Courts [sic] decision clearly established the law as it applies to this case. The Plaintiff's action is barred by the prior decision of the Supreme Court. The Complaint should be dismissed with prejudice upon the Defendant's [sic] Motions to Dismiss because of res judicata.

In his appeal from this Order, White contends that he had the right to bring this lawsuit, as well as the absolute legal right to take a nonsuit. He further maintains that an order for nonsuit, effective upon the trial court's signature, does not permit the trial court the option of holding that order to decide other motions first.

Appellees WestArk Community College and the School Districts, in separate briefs, raise several arguments to counter White's claim of an absolute entitlement to a nonsuit. They both argue that White never received a ruling from the trial court on his motion for a nonsuit; thus, they contend that the issue is not preserved for our review. They further assert that even if the trial court erred in denying White's motion to nonsuit, White was not prejudiced by the court's order. The reason for this, they claim, is that White's complaint is the same as a previous lawsuit filed by Earl Oxford, which was decided adversely to Oxford. See Oxford v. Perry, 340 Ark. 577, 13 S.W.3d 567 (2000). They maintain that when a second taxpayer such as White files an illegal-exaction lawsuit raising matters already concluded in an earlier suit, the second action is barred by the doctrine of res judicata. As authority, appellees cite Rigsby v. Ruraldale Consol. Sch. Dist. No. 64, 180 Ark. 122, 20 S.W.2d 624 (1929), and McCarroll, Comm'r of Revenues v. Farrar, 199 Ark. 320, 134 S.W.2d 561 (1939). In sum, they argue that White could never legitimately refile his lawsuit regardless of whether he voluntarily dismissed it without prejudice or whether the trial court dismissed it with prejudice. The School Districts further maintain that White failed to state sufficient facts in his complaint, as required by Arkansas Rule of Civil Procedure 8(a), showing the court's jurisdiction and that he and the affected taxpayers are entitled to relief.

A nonsuit by a plaintiff is governed by Rule 41(a) of the Arkansas Rules of Civil Procedure, which sets forth the criteria for the voluntary dismissal of actions. Rule 41(a) provides, in pertinent part:

(a) Voluntary Dismissal: Effect Thereof.

(1) Subject to the provisions of Rule 23(d) and Rule 66, an action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court. Although such a dismissal is a matter of right, it is effective only upon entry of a court order dismissing the action.

(2) A voluntary dismissal under paragraph (1) operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based upon or including the same claim, unless all parties agree by written stipulation that such dismissal is without prejudice.

Ark. R. Civ. P. 41(a)(1-2).

This court has been resolute in holding that the right to nonsuit, as outlined by the rule, is absolute. See, e.g., Whetstone v. Chadduck, 316 Ark. 330, 871 S.W.2d 583 (1994); Duty v. Watkins, 298 Ark. 437, 768 S.W.2d 526 (1989); St. Louis, Iron Mountain & S. Ry. Co. v. Ingram, 118 Ark. 377, 176 S.W. 692 (1915). An absolute right has been defined as one that "gives to the person in whom it inheres the uncontrolled dominion over the object at all times and for all purposes." Black's Law Dictionary 1324 (6th ed.1990). The absolute right to nonsuit may not be denied by the trial court. 24 AM.JUR.2D Dismissal, Discontinuance, and Nonsuit § 12 (1998).

This absolute right to nonsuit exists so long as the nonsuit is requested prior to submission of the case to the jury or to the court. See Blaylock v. Shearson Lehman Bros., Inc., 330 Ark. 620, 954 S.W.2d 939 (1997). Where the nonsuit is requested prior to the final submission of the case, the voluntary nonsuit is an absolute right; however, when it is requested by the plaintiff after final submission of the case, whether to grant a motion for voluntary nonsuit lies within the discretion of the trial court. See Wright v. Eddinger, 320 Ark. 151, 894 S.W.2d 937 (1995). A case has not been finally submitted where, even though it has come to a hearing, the argument has not yet closed. See Duty v. Watkins, supra. This court has further held in accordance with Rule 41(a) that in order to be effective, a court order must be entered granting the nonsuit even when the nonsuit is a matter of absolute right and not subject to the trial court's discretion. See Blaylock v. Shearson Lehman...