GEMINI CAPITAL GROUP, LLC APPELLANT V. KENNETH DEAN MCFARLAND APPELLEE
No. CV-13-645
ARKANSAS COURT OF APPEALS DIVISION II
February 12, 2014
2014 Ark. App. 83
APPEAL FROM THE SHARP COUNTY CIRCUIT COURT [NO. CV-2012-226] HONORABLE KEVIN KING, JUDGE REVERSED AND REMANDED
Appellant Gemini Capital Group, LLC, appeals the April 1, 2013 order of the Sharp County Circuit Court granting appellee Kenneth McFarland‘s motion for judgment on the pleadings, thereby dismissing appellant‘s complaint with prejudice. On appeal, appellant claims that the circuit court erred in three ways: (1) dismissing the complaint because the amended complaint cured any defects in the original; (2) dismissing appellant‘s complaint with prejudice rather than without; and (3) allowing a circuit court judge not assigned to the case to render judgment. We reverse the dismissal and remand for further proceedings.
Appellant filed a complaint against appellee on December 14, 2012, alleging that appellee had purchased items with a credit account that was assigned to appellant from Chase Bank USA, N.A. (Chase). Appellant claimed that appellee owed $8,462.75 plus interest and attached an affidavit of account signed by Roger Neustadt, appellant‘s chief executive officer. Appellee filed a pro se answer on January 4, 2013, alleging that appellant lacked standing, had
On February 6, 2013, appellant filed a motion for default judgment against appellee claiming that appellee had failed to appear or file an answer. On February 26, 2013, appellee, through counsel, filed a motion for judgment on the pleadings arguing that appellant‘s complaint was deficient for failure to attach a copy of the agreement between appellee and Chase in violation of
Appellant filed an amended complaint on March 12, 2013, and attached the cardmember agreement between Chase and appellee. Also on that date, appellant filed a response to appellee‘s motion for judgment on the pleadings, claiming that appellee‘s motion was moot due to the filing of the amended complaint with the required attachment and citing Arkansas Rules of Civil Procedure
On April 1, 2013, the circuit court granted appellee‘s motion for judgment on the pleadings, citing Nardi, supra, and
Appellant filed a timely notice of appeal on April 30, 2013. However, on May 1, 2013, appellant filed a motion to set aside the April 1, 2013 order, alleging that appellant‘s counsel was only made aware of the circuit court‘s dismissal order when he received a letter from appellee‘s attorney explaining that he would not be responding to appellant‘s discovery requests due to the dismissal order. Appellant filed a motion to set aside the order, citing
We construe court rules using the same canons of construction as are used to construe statutes. Moon v. Citty, 344 Ark. 500, 42 S.W.3d 459 (2001). The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction, and the
[w]ith the exception of pleading the defenses mentioned in
Rule 12(h)(1) , a party may amend his pleadings at any time without leave of the court. Where, however, upon motion of an opposing party, the court determines that prejudice would result or the disposition of the cause would be unduly delayed because of the filing of an amendment, the court may strike such amended pleading or grant a continuance of the proceeding.
In Harris v. First State Bank of Warren, 22 Ark. App. 37, 732 S.W.2d 501 (1987), this court held that, because there had been no determination of either undue delay or prejudice under
Arkansas Rule of Civil Procedure 15(a) permits liberal amendments to pleadings at any time without leave of the court. Nat‘l Sec. Fire & Cas. Co. v. Shaver, 14 Ark. App. 217, 686 S.W.2d 808 (1985). A trial court is vested with broad discretion in allowing or denying amendments to pleadings. Turner v. Stewart, 330 Ark. 134, 952 S.W.2d 156 (1997). But, a court abuses its discretion in striking an amended pleading where no prejudice is found and no undue delay is caused by the amendment. See Ultracuts Ltd. v. Wal-Mart Stores, Inc., 343 Ark. 224, 33 S.W.3d 128 (2000); Travis v. Houk, 307 Ark. 84, 817 S.W.2d 207 (1991). Failure of the opposing party to seek a continuance is a factor to be considered in determining whether prejudice is shown, as is the ability of the opposing party to have a fair opportunity to defend after the amendment. See Turner v. Stewart, supra. Where neither a continuance is requested nor a demonstration of any prejudice resulting from an amendment is shown, the amendment should be allowed. Id.
LVNV attached to its motion for summary judgment a written “Card Agreement” alleged to be the instrument upon which the claim was based. Pursuant to
Rule 10(d) , any instrument upon which the claim was based had to be attached as an exhibit to the complaint. Compliance withRule 10(d) is mandatory. See Ray & Sons Masonry Contractors, Inc. v. U.S. Fid. & Guar. Co., 353 Ark. 201, 114 S.W.3d 189 (2003).
The instant case is distinguishable from Nardi, supra, because there, LVNV attached the required documents to its motion for summary judgment. Here, appellant attached the required documents to its amended complaint, which follows the requirements as set forth under
Appellee argues that the circuit court did not err in dismissing the complaint. He contends that appellant‘s argument is contrary to the clear language contained in
However, we agree with appellant‘s contention that the circuit court erred as a matter of law by dismissing its complaint because the amended complaint should have related back to the filing of the original complaint, thereby curing any defects by complying with
Reversed and remanded.
WOOD and BROWN, JJ., agree.
Allen and Withrow, by: Teaven Stamatis, for appellant.
R.T. Starken, for appellee.