Maurice R. LIPSEY, William Larry Cox, and Connie L. Cox, Appellants v. Karen GILES, Appellee
No. CV-14-9
Supreme Court of Arkansas
June 26, 2014
2014 Ark. 309
In domestic-relations cases, we review the evidence de novo and will not reverse the circuit court‘s findings unless they are clearly erroneous. Moix v. Moix, 2013 Ark. 478, 430 S.W.3d 680. We also give special deference to the circuit court‘s superior position in evaluating the witnesses, their testimony, and the child‘s best interest. Id. A circuit court in a domestic relations case may modify or vacate a prior order when it becomes aware of a material change in circumstances since the previous order. Id. However, when the issue involves a change in custody, a judicial award of custody should not be modified unless it is shown that there are changed conditions that demonstrate that a modification of the decree is in the best interest of the child. Lloyd v. Butts, 343 Ark. 620, 37 S.W.3d 603 (2001) (citing Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988)).
By all accounts, B.G. was a bright, happy child who was thriving under the current custodial arrangement. I am mindful that B.G. had somewhat sporadic attendance at kindergarten and that she was required to repeat that level. However, the child was very near the minimum age for attending kindergarten when she was enrolled, and many of the deficiencies that the child displayed could best be attributed to immaturity, not lack of school attendance. Moreover, the circuit court adequately addressed whatever problems may have existed regarding educational decisions by placing that authority in Graham. Likewise, the circuit court adequately dealt with the parties’ dispute over the course of treatment for T.G.‘s autism.
While the majority relies on motions filed after an opinion was handed down by the court of appeals and this court had taken the case on review, those motions were denied by this court. Those motions cannot affect the disposition of the pending appeal. To the extent that circumstances may have changed, post-appeal, those issues must be addressed by the trial court. Based on the complete record before us, and due to the special deference that we afford circuit courts in proceedings that sound in equity, Moix, supra, I cannot say that the circuit court clearly erred in not finding that there was a change in circumstances sufficient to justify a change in custody. Lloyd v. Butts, supra. I would vacate the court of appeals opinion and affirm the circuit court.
BAKER, J., joins.
Eric Bray; and PPGMR Law, PLLC, Little Rock, by: Kimberly D. Logue, for appellee.
COURTNEY HUDSON GOODSON, Associate Justice.
Appellants Maurice R. Lipsey, William Larry Cox, and Connie L. Cox, appeal the order entered by the Cleburne County Circuit Court dismissing their class-action complaint for injunctive and other relief filed against appellee Karen Giles, in her official capacity as Cleburne County Circuit Court Clerk. For reversal, appellants contend that the circuit court erred in dismissing their complaint, sua sponte, based on a lack of damages. Appellants also contend that the circuit court erred in dismissing the complaint because Arkansas law recognizes the ability of a court to enjoin the actions of a state agency or official if their actions are ultra vires. The order dismissing appellants’ complaint is a final judgment or decree pursuant to
Appellants filed a class-action complaint requesting an injunction and other relief on October 31, 2011. The complaint alleges that Giles, along with Cleburne County Circuit Court Deputy Clerks Heather Smith and Wanda Jensen, falsely and fraudulently notarized oil-and-gas leases outside the presence of the landowners. According to the complaint, landmen, who were procuring leases for oil-and-gas companies, would obtain the signatures of landowners on the leases and then deliver the leases en masse to the clerk‘s office. There, the clerks would notarize the signatures and then record the leases, although the clerks had not witnessed the landowners’ signing the leases.1 The complaint requested that the court grant an injunction to require Giles to “inspect and verify each and every oil and gas lease received for recording and determine if the notarial acknowledgment is accurate, true, and correct.” Appellants further requested that the court enjoin Giles “to purge any and all oil and gas leases which contain a false notarial acknowledgment.” Finally, the complaint requested costs and attorney‘s fees.
On November 30, 2011, Giles filed an answer to the complaint and a motion to
Appellants filed an amended complaint on December 12, 2011, contending that they had been “damaged and harmed by the practice of falsifying notarial acknowledgments,” and that they “rely on the Cleburne County Circuit clerk to accept for filing only validly executed documents which are not falsified and fraudulent.” Appellants also filed a response to Giles‘s motion to dismiss on that same date. Subsequently, on December 21, 2011, Giles filed an amended motion to dismiss. In her amended motion, Giles contended that appellants had no standing to bring the action because they have incurred no harm as a result of the allegations in the complaint. She further asserted that the complaint stated no facts upon which she could be found liable to appellants and again requested that the complaint be dismissed pursuant to
After discovery had begun, appellants filed a motion for an injunction on May 23, 2012. Giles filed an answer to the motion for an injunction two days later. After briefing from the parties regarding the circuit court‘s authority to grant the relief requested, the court held a hearing on appellants’ motion for injunction on August 12, 2013. During the hearing, the circuit court questioned appellants concerning their damages in the following colloquy:
THE COURT: Then what damage [have] your clients suffered that would require anymore time of this Court in a case like this?
PLAINTIFFS’ COUNSEL: Well, the issue is this. My clients are residents of Cleburne County. And they rely on these records just as everybody else does. And so does everyone else in Cleburne County. That‘s why we filed this as a class action. And that is the damages. Ms. Giles has said herself, in her deposition, under oath, that her records are now unreliable. That nobody can rely on them because they don‘t know which things were properly—you know, my clients did enter into leases. And they—there was no coercion. The Court is correct about that. Now, all the other ones, we don‘t know whether the people were of firm mind. Whether they knew what they were doing. Whether somebody just put their name on the thing and went down there and had it notarized. That‘s why we brought this as a class. But the damage is, is the disarray that the county‘s records are in, Your Honor. And as residents they‘re entitled to be able to rely on them.
After that, the circuit court announced that “with the admission that none of the plaintiffs have been damaged ... I‘m going to, on my own motion, I‘m dismissing this case.” On September 18, 2013, the circuit court filed a written order. In its written order, the circuit court made the following findings: “(1) The Court finds that the Plaintiffs have suffered no damages; and (2) The Court, sua sponte, dismissed the Plaintiffs’ Complaint.” The court also incorporated its oral ruling by attaching a transcript of the hearing to its written order. On appeal, appellants con-
We begin our analysis by determining the appropriate standard of review. Appellants contend that the circuit court dismissed their complaint after considering matters outside the pleadings. They assert, therefore, that this court should treat the court‘s order as a granted motion for summary judgment. Giles, however, contends that the circuit court dismissed the complaint pursuant to
It is well settled that a motion to dismiss is converted to a motion for summary judgment when matters outside the pleadings are presented to and not excluded by the court. Koch v. Adams, 2010 Ark. 131, 361 S.W.3d 817. Here, the court explicitly stated that it dismissed the appellants’ complaint after a hearing on the motion for injunction. Attached to that motion for an injunction were transcripts from Giles‘s, Smith‘s, and Jensen‘s depositions. In addition, the court incorporated the transcript from the hearing in which it relied on statements from counsel that appellants’ leases were not fraudulent. Moreover, both parties relied on the depositions attached to appellants’ motion for injunction during the hearing. Because it is clear to this court that the circuit court considered matters outside the pleadings in making its ruling, we treat the court‘s dismissal as a granted motion for summary judgment.
Summary judgment is appropriate when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Koch, supra. On appeal, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Gentry v. Robinson, 2009 Ark. 634, 361 S.W.3d 788. This court views the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Kyzar v. City of W. Memphis, 360 Ark. 454, 201 S.W.3d 923 (2005). Our review focuses not only on the pleadings, but also on the affidavits and documents filed by the parties. Neal v. Sparks Reg‘l Med. Ctr., 2012 Ark. 328, 422 S.W.3d 116. While we have recognized that summary judgment is simply one of the tools in a trial court‘s efficiency arsenal; we only approve the granting of the motion when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admissions on file is such that the nonmoving party is not entitled to a day in court, i.e., when there is not any genuine remaining issue of fact and the moving party is entitled to judgment as a matter of law. Flentje v. First Nat‘l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000). Moreover, we have held that, even when there is no material dispute as to the facts, the court will determine whether “reasonable minds” could draw “reasonable” inconsistent hypotheses to render summary judgment inappropriate. In other words, when the facts are not at issue but possible inferences therefrom are, the court will consider whether those inferences can be reasonably drawn from the undisputed facts and whether reasonable minds might differ on those hypotheses. Id. If so, summary judgment is not appropriate.
For their first point on appeal, appellants contend that the circuit court erred in dismissing their complaint sua sponte.
In Rogers v. Lamb, 347 Ark. 102, 60 S.W.3d 456 (2001), this court held that the circuit court erred in settling a case in favor of the plaintiff in the absence of any party‘s filing of a motion to dismiss or a motion for summary judgment. In that case, the plaintiff, Lamb, filed a petition for ejectment against the defendant, Rogers, who filed an answer and a counterclaim against Lamb. The circuit court held a preliminary hearing and received briefs from the parties, and it then, sua sponte, entered an order resolving the merits of the case in Lamb‘s favor. On appeal, Rogers made several arguments, including that the court erred in rendering its decision in the absence of an appropriate motion filed by either party. Rogers, 347 Ark. at 103, 60 S.W.3d at 457. This court agreed, noting that the trial court‘s sua sponte ruling deprived the parties of any opportunity to present evidence or witness testimony in support of their positions.
More recently, we concluded that the circuit court erred in dismissing a case pursuant to
In the present case, Giles filed motions to dismiss appellants’ complaint and amended complaint pursuant to
Because we reverse and remand on this point, we do not reach the remaining point on appeal. See, e.g., Hobbs v. Gordon, 2014 Ark. 225, 434 S.W.3d 364.
Reversed and remanded.
COURTNEY HUDSON GOODSON
Associate Justice