Cooper v. Circuit Court of Faulkner County
430 S.W.3d 1
Ark.
2013
Check Treatment

*1 X 2013 Ark. 365

Karen COOPER Jack

Dowell, Petitioners COURT OF FAULKNER

CIRCUIT

COUNTY, Respondent.

No. CV-13-202. of Arkansas.

Supreme Court

3,Oct. *2 Firm, PLLC, by:

Walker Law Kent Walker, petitioners. Jiles, LLP, by: Gary D.

Millar Jiles Brown, Rock, Matthew K. Little for re- spondents. BAKER,

KAREN R. Justice. | ,The pres- record demonstrates that stems from a land-condemnation ent case City Conway action initiated Conway Corporation (“Conway”), in Faulk- Court, against peti- ner Circuit tioners, wife, husband and Karen Dowell”). (“Cooper and Jack Dowell Dowell this court to or, in the alter- issue a writ of certiorari, native, a writ of Conway responded, Faulkner respondent, October 2012, Cooper that the circuit court They replied. contend On Oc- Court.1 ju- jurisdiction, day was without exceeded its tober before the trial was *3 risdiction, commence, and committed a set to p.m., at 4:24 the circuit 31, January discretion in its court issued its order the motion to clarify previous when it ordered and Dowell to it order and sent the order Conway’s attorney’s in via pay parties. fees facsimile to the $21,345 amount of as a condition of lathe following day, On the the morning of granting their motion for continuance and trial, 12, 2012, Cooper October and Dowell (2) prohibited Cooper and Dowell from continuance, requested asserting that the until the circuit court’s clarification order limited were in full. In paid fees and costs their | .¡damages their arguments and that Coo- petition, Cooper Dowell make two re- per and Dowell would be foreclosed from quests: grant prohibition a writ of di- $15,000 raising approximately worth of recting the circuit court to rescind its Jan- damages property based on the 31, uary grant order writ condemnation. Conway objected to the directing the circuit court to re- continuance and asserted that the October 31, January scind its order. This 11, 2012 order simply restated the circuit original jurisdiction court has of this case previous court’s orders and that Cooper (a) (2013) pursuant Sup.Ct. to Ark. R. 6-1 should have filed a extraordinary as the seeks relief. counterclaim to damages address the is- deny grant the writ of agreed sue. The circuit court with Cooper of certiorari for the reasons ex- Dowell, found that had demon- plained below. cause, good strated granted the con- The relevant Sep- pursuant facts are these. On tinuance to Rule 40 of the Arkan- 28, 2011, Conway tember However, initiated a con- sas Rules of Civil Procedure. demnation action granted and Do- the continuance was on the condi- 29, 2012, May well. On the circuit court tion that Cooper and Dowell would be order, entered a scheduling responsible set a trial date for Conway’s attorney’s fees 12, 2012, and set a pleadings and costs associated with preparing October trial, sixty days prior deadline of including expert trial. On fees. The 28, 2012, September circuit court en- record demonstrates that would pretrial addressing tered a order the par- submit its bill to the circuit court and 9, 2012, pretrial review, ties’ motions. On October and Dowell for Cooper and Dowell filed a clarify opportunity motion to would have an to review and the circuit September pre- court’s rebut the proposed expenses, and that the Specifically, trial order. Cooper and Do- circuit court would then issue an order sought well clarify addressing the fees and costs.2 rec- finding regard with to certain evidence ord further demonstrates that at the Octo- 10, 2012, related to damages. continuance, On October ber 2012 hearing on the May Attorney parties On General’s both reference a November proposed 2012 letter and order from Con- Office notified this court that was the way itemizing to the circuit court plaintiff from the lower court action and costs, in fees and tained, this information is not con- provide filings would on behalf of the Faulk- parties in the record. The also refer- ner Circuit Court. order, objections proposed ence made to the lacking but this information is as well. On March petition. on Dowell’s of a no mention there was to the response and Dowell filed a filing pleadings. party either motion, April condemna- December On April On replied response. to the to the Faulk- transferred tion action was to take it the motion to dismiss passed Court, First Division.3 ner petition. our up with ^consideration en- January On continuing the tered an before the court Now October Referencing the trial. us to petition requesting order, 2013 order contin- or, alternative, a writ of *4 the continuance the trial and ordered ued the circuit writ of certiorari to rescind pay- Cooper and upon conditioned continuing January attorney’s fees and Conway for its ment to trial, of costs ordering payment $21,345 paid to be in the amount of fees, Do- prohibiting Cooper and and and the order.4 The contin- days within five of pleadings additional until well from prohibited order also uance paid. the fees and costs were filing any pleadings Dowell from first and Do- We address were attorney’s fees and costs until prohi request well’s that we issue writ 1, 2013, Conway filed paid. February On the circuit court to re bition and order interrogato- garnishment allegations January 2013 order. A writ of scind its ries, day, that same the Faulkner extraordinary relief that prohibition is gar- issued a writ of Circuit Clerk when the circuit court is appropriate only and Dowell to against Cooper nishment wholly jurisdiction. without See White $20,805 in reimbursement costs collect the Palo, Ark. 380 S.W.3d attorney’s for fees and costs. writs, prerogative are Writs 6, 2013, Cooper March On in extremely scope operation; narrow or prohibition, filed their motion for writ of great to be used with caution and are alternative, certiorari with in the writ of forbearance; only in they should issue court; stay this also filed a motion to necessity. Paper of extreme Int’l cases On March proceedings. Court, Cnty. 375 Ark. Co. Clark Circuit Cooper and Dowell filed a motion (2008). The writ of 289 S.W.3d petition, and on March expedite to correct an prohibition cannot be invoked 13, 2013, Conway responded. On March in already entered. Id. In those order stay the motion to granted stances, appropri a writ of certiorari is the including any proceedings, circuit court ate vehicle. See id. granted expe- the motion to garnishment, Here, in dite, allegations each of the petition as a case. On took prohibi- for a writ of filed a motion to and Dowell’s March an entered dismiss or motion to strike tion concerns Division, change assignment but the court notes the order 3. Due to a of crimi- Second by the Honorable H.G. Foster of for was issued nal and civil cases in Faulkner after the case was trans- the First Division parties' condemnation action was ferred. County transferred from the Faulkner Court, Division, Michael Second Honorable Maggio, County Circuit awarded A. to the Faulkner 4. The circuit court’s order Court, Division, in fees and costs to First Honorable H.G. Foster. reimbursement County Circuit January $540 to the Faulkner 2013 continuance-order heading for reimbursement of fees. indicates that the order is from the Clerk edy court. will not issue a writ exists where the issuing court had no something that has al- legal authority to support its order. Ar- ready been done. Allen v. Circuit Court Herndon, kansas Game & Fish Comm’n v. Cnty., Pulaski 2009 Ark. 226 S.W.3d S.W.3d 70. Because the circuit court has (2006). Second, the writ of certiorari lies order, prohi- already entered only apparent where it is on the face of Id. bition cannot he. the record that there has plain, been a Alternatively, Cooper and Dowell have clear, gross abuse of discre- requested that this court issue writ of tion, or there is jurisdiction, a lack of certiorari and order the circuit court to an act excess of on the face They rescind its 2013 order. record, of the the proceedings are erro- present two for the issuance of the fibases neous on the face of the record. Id. Ac- writ of certiorari: cordingly, a writ and Dowell’s 17appropriate when, on the face of the rec- was excess of the ord, it is apparent that no other remedy is circuit court’s and a *5 available to correct a plain, and (2) abuse of discretion and gross abuse of discretion by the circuit court’s award of fees and costs of Lock, 88, court. See Chiodini v. 373 Ark. to was in excess of the circuit (2008). 281 S.W.3d 728 It lies when the and a judge has acted in excess of his or her discretion. Simes, authority. See Conner v. 355 Ark. A writ of certiorari is extraordi 422,139 (2003). S.W.3d 476 nary determining relief. “In applica its Turning Cooper beyond petition, tion we will not look the face of the record to ascertain the actual merits of a first contend that discretion, controversy, or to control or to exceeded its when it prohibited fact, finding review a or to reverse a them from additional pleadings until trial court’s discretionary authority.” they paid the fees and costs. Conway Southern Farm Bureau Cas. Ins. v.Co. responds that the prohibi- circuit court’s Parsons, 2013 Ark. at 429 S.W.3d tion was appropriate because the order 215, 218. A writ of certiorari lies to cor only limited Dowell from proceedings rect erroneous on the face of “pleadings.” Conway relies bn Rule 7 of the record where there is no other ade the Arkansas Rules of Civil Procedure and quate remedy; it is appel available to the “pleadings” only contends that includes a late court in its exercise of superintending answer, complaint, counterclaim, an control over a lower court proceed that is counterclaim, reply to a and an answer to ing illegally where no other mode of re (2013). a cross-claim. See Ark. R. P. 7 Civ. view provided. has been v. Casement Relying on Rule contends that State, 884 S.W.2d 593 Cooper and Dowell were not denied access (citing Lupo Lineberger, 313 Ark. the courts because had 316-17, (1993)). 855 S.W.2d 293-94 filed answer and counterclaim and There are two requirements any rule did not allow for must in be satisfied order for the court to pleadings. First, a writ of certiorari. there can At adequate be no other issue before us is the remedy but for the writ of certiorari. adequate No other rem- 2013 provides pertinent order that in part:

6 Clause, Amendment Petition the First against rendered Judgment Clause, Due Process

Defendants, severally, and in the Fifth Amendment jointly Clause, Equal the Fourteenth Amendment in the sum of the Plaintiffs favor Clauses.”). Protection, Plain- $20,805.00, and Due Process in reimbursement in and costs incurred has ex attorneys Supreme fees The United States Court tiffs’ trial; to the courts “is one of plained for that access preparing privileges and most essential highest rendered Judgment must be allowed each citizenship, and Defendants, severally, and jointly and the citizens of all other states state to the Faulkner favor of to its precise extent that it is allowed as reim- in the sum of $540.00 Clerk & own citizens.” v. Baltimore expenses all Chambers for bursement Co., summoning 28 S.Ct. by the Ohio R.R. U.S. pay incurred Court (1907). trial; jury process selection and 52 L.Ed. 143 “Due jurors in one’s signifies right law to be heard owing under this 3. All sums due Connecticut, Boddie v. 401 U.S. defense.” within payable be due and Order shall 28 L.Ed.2d 113 S.Ct. entry of this Order. days five Elliott, (citing Hovey U.S. permitted not be to file Defendants shall (1897)). 841, 42 L.Ed. 215 17 S.Ct. in this case until further Further, “adequate, the access must be attorneys’ fees and such time as effective, meaningful.” Bounds v. jury herein and the costs awarded Smith, 430 U.S. 97 S.Ct. paid-in-full[.] awarded herein are (1977). A state must afford to L.Ed.2d *6 |8Here, that Cooper and Dowell assert opportunity to meaningful all individuals a prohibition filing on promise be heard if it is to fulfill the of the infringes upon their access pleadings Boddie, 401 Due Process Clause. U.S. urge court to the the courts and this 371, 91 S.Ct. that the responds writ. Cooper is not available because turn now to whether the writ have failed to demonstrate that and Dowell First, it clear appropriate. is is to this remedy there is no other available. Con- and Dowell have no Cooper court that at the way may appeal contends that remedy. other 2013 or the motion litigation conclusion of as prohibiting filing der of additional is at the discretion of the for continuance final, appealable is not a order. pleadings appealable litigation when circuit court part it of a continuance Thus, issuing the writ would complete. at normally appealed which would be piecemeal litigation. amount to in the interim litigation, the conclusion of Cooper that further asserts time, Cooper and Dowell have no other complain cannot about the order because prohibi to obtain relief from the recourse they requested the continuance. Second, portion tion of the order. we find law, it is clear that the record on its face demonstrates reviewing In our jurisdic the circuit court exceeded its to the courts is a constitu that to us that access deny gross by tion and committed abuse Harbury, right. Christopher tional to the ing Cooper and Dowell access 415 n. 122 S.Ct. U.S. (2002) (internal support citations omit courts. The record fails L.Ed.2d 413 ted) (“Decisions for the circuit court’s ground provide have basis of this Court pleadings, filing right of access to courts ed infringes upon Cooper and the limitation Privileges Article and Immunities IV access to the courts under pleadings, and Dowell’s it must be noted that the facts in this case. asserts that there are in fact limit ed may circumstances which a court had no effect on limit an individual’s access to the court. to the and Dowell’s access court because See, Ct., e.g., Chipps v. U.S. Dist. 882 F.2d pleadings there were no left for them to (3d Cir.1989) (in 72, 73 which the Third disagree. applying file. We Even the lit- of Appeals recognized Circuit Court eral definition of from Rule groundless “a pattern and vexatious liti prohibited and Dowell are from gation justify will prohibiting an order fur Therefore, accessing the circuit court. filings ther permission without of the agree with and Dowell and issue court”); Ligon Stilley, the writ of certiorari. (where S.W.3d this court discussed Because the circuit court acted in excess prohibition placed Stilley by Oscar plain, of its and committed a the United States District Court for the manifest, clear, gross abuse discre- District Western of Arkansas —which was tion, and because and Dowell are Eighth later affirmed Circuit Court adequate left without an alternative reme- Appeals filing any complaints —from dy, we hold that relief in the form of a writ parties certain prior ap without appropriate. of certiorari is We issue the court); of the proval and see Ark. R.Crim.

writ of certiorari and direct the Faulkner 37.2(b) (2013) (a P. rule which specifically Court to rescind its Janu- prohibits of a second ary 2013 order. unless the first was denied without preju Finally, although Cooper Dowell dice). request also that the court issue a writ of |nI absolutely agree that access to the grounds on the that the circuit incertiorari importance; courts is of utmost simply I court exceeded its and commit- imply do not want to that there is never an ted a clear and may instance which the court limit ac- ordering discretion in them pay when proven necessary. cess costs, in fees and we do not reach *7 this issue. The imposed conditions

circuit court in the inextricably

are intertwined and cannot be therefore,

parceled individually; out 2013 Ark. 367 direct the circuit court to rescind the order entirety. LOUISIANA, its OF GULFCO INC. d/b/a Springhill, Tower Loan of denied; Writ of writ of cer- Louisiana, Appellant granted; tiorari motion to dismiss or mo- tion to strike denied. MacArthur BRANTLEY and Pamela

DANIELSON, J., concurs. Brantley, Appellees. DANIELSON, Justice, E. PAUL No. CV-13-135. concurring. Supreme Court of Arkansas. here, agree disposition While I with the 3,Oct. clarify point I write to not included in Rehearing Denied Nov. regarding the discussion access to the court. the facts in the instant support

case did not

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