City of Little Rock v. McGeorge Contracting Co.
2010 Ark. App. 765
| Ark. Ct. App. | 2010Background
- McGeorge Contracting Co. sued the City of Little Rock and LRHA to gain access to Highway 365; the initial complaint was filed in Nov. 2002 and dismissed for want of prosecution in Dec. 2003.
- McGeorge filed a second complaint in Mar. 2007 alleging the same facts; that complaint was dismissed for want of prosecution in July 2008.
- McGeorge then amended the complaint in Nov. 2008 to add the City as a defendant; the City moved to dismiss as the suit had already been dismissed.
- On Dec. 8, 2008, McGeorge moved to vacate the July 2008 dismissal; affidavits were submitted from McGeorge and LRHA’s counsel claiming lack of prior notice.
- Three days later, the circuit court vacated the July 2008 dismissal; the City timely filed a notice of appeal challenging the vacation order and the circuit court’s authority.
- The appellate court held the July 2008 dismissal valid and that the circuit court lacked jurisdiction to vacate it after 90 days, reversing and remanding for dismissal of the case on res judicata grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the July 2008 dismissal was valid and vacatur timely under Rule 60(a). | McGeorge contends the dismissal was void for lack of notice under Rule 41(b) and 16-65-108; seeks vacatur. | City argues the July 2008 dismissal was a final adjudication on the merits and vacatur within 90 days was required; res judicata may apply. | July 2008 dismissal valid; circuit court lacked jurisdiction to vacate after 90 days. |
Key Cases Cited
- Florence v. Matthews, 325 Ark. 445 (1996) (recognizing dismissal without notice may be upheld under due process due to circumstances)
- Link v. Wabash R.R. Co., 370 U.S. 626 (1962) (due process considerations depend on knowledge of consequences of conduct)
- Watson v. Connors, (Ark. Supreme Court discussion cited) (—) (discusses notice and diligence in setting aside dismissals)
- Ark. Dep't of Health & Human Servs. v. Storey, 372 Ark. 23, 269 S.W.3d 803 (2007) (cited for statutory framework on appeals and notice)
- White v. Ray, 267 Ark. 83, 589 S.W.2d 28 (1979) (notice and due process principles in default/dismissal contexts)