Gary Kent JONES v. Linda K. FLOWERS and Mark Wilcox, Commissioner of State Lands
07-409
Supreme Court of Arkansas
April 17, 2008
283 S.W.3d 551
For the foregoing reasons, we hold that the circuit court did not abuse its discretion in issuing an injunction to enjoin ACM from using its airfield for the purposes of allowing airplanes to land and depart therefrom.
Affirmed.
Dustin McDaniel, Att‘y Gen., by: Patricia Van Ausdall Bell, for appellee Mark Wilcox.
TOM GLAZE, Justice. This case is an appeal from an order by the Pulaski County Circuit Court denying a request for attorney‘s fees under
Because Jones is the prevailing party, he is entitled to recovery of his attorney‘s fees at each stage of this litigation. In his Complaint, Jones requested that he “recover from defendants his attorney fees incurred in the prosecution of this cause....” Jones made a federal constitutional challenge to state action and won. Thus he is entitled to recover fees from the State under
42 U.S.C. § 1988 .
Following a status conference on November 15, 2006, the circuit court issued an order denying Jones‘s request for attorney‘s fees because “[t]he first mention of
It appears that most, if not all, federal courts of appeal that have considered this issue have held that regardless of whether a plaintiff specifically cites
As the Supreme Court has observed, the meaning of “a proceeding to enforce”
§ 1983 is unclear on its face because§ 1983 does not create substantive rights that a person can “enforce” in the typical sense of the word. Instead§ 1983 establishes a means by which people can enforce the Constitution. It simply provides that, when a state actor violates a person‘s constitutional rights, that person can sue the state actor. That, of course, is exactly what Goss did. Indeed,§ 1983 does nothing more than make lawsuits like this one possible. Thus Goss did enforce§ 1983 in that he did precisely what it authorizes people to do.
Id. at 865 (internal citations omitted).
The Eighth Circuit then turned to the legislative history of
The Eighth Circuit holding in Goss — that substance prevails over form in determining whether attorney‘s fees are appropriate under
The State does not present any counter-argument to Jones‘s
The State relies heavily on Norman v. Norman, 347 Ark. 682, 66 S.W.3d 635 (2002) (Norman III) to support its argument that Rule 54(e) bars Jones‘s request for attorney‘s fees. However, Norman III is distinguishable from the present case. In Norman v. Norman, 333 Ark. 644, 970 S.W.2d 270 (1998) (Norman I), this court addressed an appeal from a final order denying a motion to disqualify an attorney and his law firm, and held that the trial court did not properly address the facts in the case in denying the motion. Although the Norman I court stated that it could remand the case for determination of the disqualification motion, it concluded that to do so would be “pointless” because there was a fully developed record before the court, and accordingly this court ordered the attorney disqualified. Id. at 651, 970 S.W.2d at 273. On a later appeal in Norman III, supra, the court affirmed the trial court‘s denial of a motion for attorney‘s fees, holding that the motion was inadequate as well as untimely under Rule 54(e) because the motion was filed forty-six days after our mandate in Norman I. Norman III, 347 Ark. at 688, S.W.2d at 639.
While the mandate in Norman I was a final resolution of the matter that was the subject of the appeal, here, by contrast, the court‘s mandate issued on September 25, 2006, simply remanded the case for further “proceedings on relief” consistent with the Supreme Court‘s decision. A final judgment triggering Rule 54(e) did not occur until the circuit court issued its order on December 21, 2006, that denied the Commissioner‘s request to reopen the question of liability, ordered that Jones be given his house back, denied Jones his requested attorney‘s fees, and ordered the clerk to close the case. Only upon this final resolution of the respective parties’ rights was a motion for attorney‘s fees appropriate.
In sum, the Supreme Court held that the State violated Jones‘s due process rights under the United States Constitution by failing to take additional reasonable steps to notify him before a tax sale of his property when the initial notice was returned undelivered. Thus, Jones‘s action was a meritorious civil rights claim. We are persuaded by the overwhelming federal court precedent holding that substance prevails over form when a party fails to specifically plead an action under
Reversed.
BROWN and DANIELSON, JJ., concur in part, dissent in part.
Two doctrines seem to have been conflated by the majority in the footnote. The first is the doctrine that we will affirm a trial court‘s decision for an alternative reason on the basis that the trial court may have reached the right result but the reason stated for the decision is wrong. See, e.g., Bell v. State, 371 Ark. 375, 387 n.2, 266 S.W.3d 696, 702 n.2 (2007) (known as the “affirmance rule“). The second doctrine is that this court on occasion will address an issue likely to recur in a new trial after the case has been reversed and remanded to the trial court, which I will call the “likely to recur rule.” See, e.g., Bailey v. Rose Care Ctr., 307 Ark. 14, 20, 817 S.W.2d 412, 415 (1991).
The issue facing this court is whether, under either doctrine, the issue raised here must first be raised to the trial court before this court addresses it. I believe it should. It is not the task of an appellate court to address undeveloped issues raised for the first time on appeal. As we said in Hanlin v. State, 356 Ark. 516, 529, 157 S.W.3d 181, 189 (2004):
The problem with this court‘s application of the pedophile exception, sua sponte, is that it was not raised by the State before the circuit judge or in this appeal. Thus, Hanlin has not had an opportunity to address it or raise any defense to it. Though this court will go, on occasion, to the record to affirm for a different reason, typically this is done when that alternative reason was raised by a party and has been developed at the circuit court level. See, e.g., Johnson v. State, 343 Ark. 343, 37 S.W.3d 191 (2001); Heagerty v. State, 335 Ark. 520, 983 S.W.2d 908 (1998). We have also affirmed for a different reason when the documentary evidence in the record clearly gave us a basis for doing so (State of Washington v. Thompson, 339 Ark. 417, 6 S.W.3d 82 (1999)), or when a statute, not argued by either party, is used by this court to affirm the trial court‘s determination (Robinson v. State, 274 Ark. 312, 624 S.W.2d 435 (1981)). This court has been resolute in stating that we will not make a party‘s argument for that party or raise an issue, sua sponte, unless it involves the trial court‘s jurisdiction. See, e.g., Ilo v. State, 350 Ark., 138, 85 S.W.3d 542 (2002). Moreover, we will not consider an argument unless it has been properly developed. See Haire v. State, 340 Ark. 11, 8 S.W.3d 468 (2000).
Regarding the doctrine that we may address issues likely to recur on remand, we have said:
Counsel for the commission sought to prove the price for which comparable property in the neighborhood had recently been sold. The court excluded that evidence, stating that an expert witness might consider such sales in forming his opinion about the value of the property being condemned, but, said the court, such evidence had no probative value with respect to the property in dispute and therefore should not be heard by the jury. Although we might on this appeal sustain the court‘s ruling on the narrow ground that counsel for the commission failed to make an offer of proof that the other property was in fact comparable to the appellees’ land, we must consider the point on its merits, simply because it will doubtless recur upon a new trial. The court‘s position was wrong. Upon a proper showing of comparability such evidence is admissible and should be heard by the jury.
Ark. State Highway Comm‘n v. Ark. Real Estate Co., Inc., 243 Ark. 738, 740, 421 S.W.2d 882, 884 (1967); see also Bailey, 307 Ark. at 20, 817 S.W.2d at 415 (reversing and remanding for a new trial because appellant‘s first point on appeal was found to have merit, then proceeding to address and reject two other of appellant‘s points on appeal “since they will likely recur on remand“). In both cases, the issue had been raised to the trial court first.
The cases adduced in the majority‘s footnote 3 do not support its position of hearing the Rule 54(e) issue for the first time
In Flores v. State, we listed three reasons for not addressing an alternative argument for affirmance raised by the State: (1) the State did not give notice to the defendant as required by
In Simmons First Nat‘l Bank v. Wells, this court did state that we could affirm on a legal theory not raised to the trial court, but we refused to do so because “evidence relevant to Act 401 was not sufficiently developed for us to apply the rule that we will affirm the trial court if the correct result is reached, even if reached on an erroneous theory.” 279 Ark. at 212, 650 S.W.2d at 240. We reversed and remanded the case so the issue in controversy could be developed before the trial court. At best, the Wells case is contradictory.
The better rule is not to address arguments under the “affirmance rule” or the “likely to recur rule” that have not been raised and developed before the trial court. For that reason, I dissent from that part of the majority‘s opinion addressing the Rule 54(e) issue for the first time on appeal.
DANIELSON, J., joins this opinion.