*1 TECHNOLOGIES OF MERCURY MARKETING Gointernet.net, Inc.; Saferstein; DELAWARE, INC.; Neal Cohen; of Arkansas Rosenkranz STATE Arthur Robert Beebe, General ex rel. Mike 189 S.W.3d 03-1328 Court of Arkansas Supreme 1,2004 delivered July Opinion *2 Coulter, Wilson, Corum D. Corum and Engstrom, by: Gary Coulter, Nate for appellant. Beebe, Gen., Williams, Mike Camille Ass’t Att’y by: Att’y J.
Gen., for appellee. Brown, ing R obert L. Market- Appellants, Mercury Justic Delaware, Inc., GoInternet.Net, e.e. Technologies Inc., Saferstein, Cohen, Neal Arthur and Robert Rosenkranz (jointly referred to as from the circuit court’s Mercury), appeal busi- it from its telemarketing conducting enjoining affirm the in Arkansas.1 assertsfour We ness points appeal. order of the circuit court. 12, 2002, Arkansas, the State of On November appellee, General,
which was filed State represented of action under the a cause against Mercury complaint alleging Arkansas Trade Practices Act which is (ADTPA), Deceptive — codified at Ark. Ann. 4-88-101 4-88-503 Code (Repl. §§ asserted that con- 2003). Supp. complaint nation, Arkansas, ducted business throughout including offer services operating telemarketing strategies “ostensibly such as web site creation and maintenance.” It then explained *3 method of business: Mercury’s conducting
21. The market defendants their services Mercury primarily churches, small businesses such as not-for-profit organizations, offices, medical and law firms. They obtain lists of telephone numbers of these businesses and for the trained telemarket- arrange ers to call these businesses.
22. the Mercury defendants telemar- began making calls to Arkansas. keting
23. defendants’ Mercury telemarketer with the speaks business, individual that answers the for the whether it is telephone (the small business owner call employee recipient). calls, 24. these During Mercury defendants offer ostensibly to create web for businesses. Most call pages recipients remem- ber the call believed were offered a free they being web sample and information but design never to be billed. Other call agreed do not recall ever contacted. recipients being 25. the telemarketer’s initial discussion with the Following call he or she is asked to hold for verification. recipient, During verification the call is asked procedure, informa- recipient verify name, tion such as address and number. phone
26. At no time this do the defendants during process disclose to the call clearly basic and conspicuously recipient 25, 2003, By September order dated defendants Cohen and Rosenkranz were dismissedfrom the lawsuit. terms, method of method of cancel-
material such as price, billing, lation, bill, the call assent to the intent to or even ask for recipient’s contractual arrangement. conceal
27. One method which the defendants is that after the referred to above is these material terms information confirmed, the cadence in such a rapid begins telemarketer speaking used that he cannot be understood. Another method the terms telemarketer omits some or all of simply presentation.
28. the call is not During monologue, recipient clearly informed the telemarketer that the business target conspicuously if it does cancel the $29.95 will be billed service affirmatively within 15 days.
29. At no time is the call asked to to have the recipient agree business billed. target service,
34. The written notice of the price method of .cancellation in small billing, policy printed print over down the second and on the back side of one half-way page There, contained in the mail-out below page package. fine-print, 1,000 (not list of over access numbers one of grey-screened dial-up *4 number), which is an Arkansas at the bottom of the very telephone in italicized fine is the notice: page, gray-screened print following Please above the dial accessnumbers up setting up your refer for numbers, internetservice. have aboutmoredial you anyquestions up If commentsor decideto cancel service beadvisedto call you your please if number, our customerservice 888-948-1930. rates days Afterfifteen are 29.95 a month local bill. We conveniently your telephone not associatedwith local your phone company. later,
36. Fifteen defendants for a days Mercury arrange $29.95 to bill the third-party billing business company target per month on its bill. The on the current telephone charge placed often ILD it listed as services so to be charges, billing appears service That until normal continues part charges. billing The resultof noticeand cancelled business by target. billing realizeit methodisthat often doesnot target being business[] billed. [Emphasis original emphasisadded.] The asserted that the acts and of “constitute State Mercury practices relief, violations” of the ADTPA and that absent injunctive Mercury continue consumers and harm Arkansas likely injure relief, The businesses. State sought including the same its it On State filed also filed day complaint, motion, motion for In that the State preliminary injunction. it claimed that could meet its burden of for a proof injunction by violated ADTPA showing appellants that the act authorized on a relief specifically injunctive showing that, violation the act. The State further noted while not could it demonstrate that the “four elements tradition- required, considered and the factors identified in Rule 65 ally Arkansas Rules of Civil Procedure in favor of weigh granting State’s The State attached to its affidavits motion from request[.]” of four businesses representatives had been stating they billed Avenue Church of fraudulently Christ by Mercury (College Dorado, Rock, in El Law Firm in Little Hoggard Stuttgart Center, Medical and a at Regional Stuttgart physician Regional Medical The State Center). also attached an affidavit from its who had ADTPA investigator violations investigated by Mercury by conducting survey. 9, 2002,
On December filed a motion Mercury to dismiss motion, due to a In that statutory asserted that exception. because it was to an order subject administered currently being by the Federal Trade Commission (FTC) iden- concerning practices action, tical to those issue in the current the ADTPA was not under the terms of Ark. Code applicable Ann. 4-88-101 (Repl. Thus, 2001). according matter should be dis- Mercury, missed. The State this matter should responded Harris, addressed under our case of Villinesv.
S.W.3d 516 It further contended that the did ADTPA because was not in with apply order compliance FTC, administered as evidenced a letter from the FTC that was stating investigating Mercury engaging practices in violation of the order. FTC also State asserted that many the violations which occurred in Arkansas took place prior *5 27, reasons, of the FTC order dated entry For 2000. these February maintained, the State motion to dismiss should Mercury’s denied. 7, 2003, at held on the motion on January A was hearing business heard from Arkansas time the court testimony on their been services Mercury’s owners who had charged time, the circuit their At bills without knowledge.
phone and denied the State’s denied motion to dismiss court Mercury’s there was but found that motion The with the order. cause for FTC probable non-compliance a trial there reason to forward with court determined that was go At with the FTC’s order. whether on compliance 2003, 14, the circuit court on July granted subsequent hearing the State’s oral renewal continuance denied again then set The circuit court its motion for a preliminary injunction.2 10, trial for November 2003. 2003, 26, counsel withdrew
On Mercury’s original August for a due to a of interest. new counsel’s conflict Following request continuance, noted to the court its inclination grant order and said: do is is that it’s tell what inclination is to you my my guess
I’ll in late. My to be for trial since ready you’re coming going had, order. They inclination is to grant temporary restraining we had a almost a there was substantial hearing year ago, case, were in that I but I also since we thought, thought evidence this, at so last have a resolution of least I fairly early thought to going fall, inclina- Restraining My that I denied Motion for Order. to, So, the reason I tion at this is to that motion. grant point General’s to if stay, you wanted office you guys Reconsider, will, I if Mr. Coulter is would file a Motion then If, hired, not, can and I’ll set somebody he can if respond. respond, for, determination. for some on motion At held on October the State’s hearing continuance, motion for for reconsideration Mercury’s circuit decided to Prior grant issue, made the on the the circuit court parties’ arguments statement: following think, me I I’ll let just Let me let tell what and then just, you to, too, had a last I
you year guess talk. We guys hearing deal, full, two and we had a a full have been injunction, day may court, hearing, jury that a in the matter was beginning at the noted trial set in two weeks. *6 it,... it like it was about a week after I to and
days, seemed listened was... that that my truthfully,... impression listening spi[e]l consumers, did ... telemarketers to Arkansas and given the, nature and of Federal lawsuit studied . . . Federal having that, it it seemed to me violated that Judge[’s Order], [Order], My concern and the reason I didn’t though, grant that I a real shaky think there is here. I’m not so sure legal precedent that case . governed this is . . Federal law. I mean I don’t just decided, so, know. I think there is an there that has and issue to be instead of an I to this to granting injunction, tried some get thing trial, resolution and that it to early to would way, get Supreme Court, and we it get one or other. way [could decided] meantime, Thirteenth, this has turned Halloween thing into and for, we’ve been in it and we’re wallowing now to wallow in it going for year, another I And it concerns me that suppose. type marketing that I saw in this hearing would techniques me, be continued we until it And try again. that’s... what bothers and I if don’t know still they’re if the SBC doing here], [business business, cut them out that’s I maybe something [ha]s shouldn’t be concerned about. If I were to grant temporary injunction, that Order? appealable the court Following parties’ arguments, State’smo- granted tion: Well,... I think I am to going grant injunctive relief. I think just there’s, but me say let also need we to this set get thing for
trial. I think it’s in a position that I don’t think can it in they try before,... November.... Q]ustfrom what I’veseen but... I’m going date, grant at least until the temporary injunction trial [and] let in there you guys go with Melissa and out when can figure you older, try this And I’ll abe we’ll spring. year all be a little smarter, But, this get I’m thing going. going grant your since, injunction. I think for one I thing don’t think they’re doing here business now right but I think that anyway, there’s a chance for harm if they continue the way they’re and it’shard going, this stop of conduct from type hurting lot of inif fact that’s what people ... to be a trial going going by jury? [is on.] [I]s 21, 2003, On October the circuit court entered an order motion granting continuance and Mercury’s the State’s motion for a based on the evidence and preliminary injunction 5, The order set arguments the trial date for presented. April and restrained and “from enjoined busi- any conducting ness in the state of Arkansas:” (1) telemarketing shall initiate any . Defendants . . Specifically, consumers; any (2)bill Arkansasconsumers any to Arkansas calls kind; any collect any or products sales services previous services customer for sales of any Arkansas charges *7 products. 6, the court on November order was entered circuit by
An amended 2003. ADTPA
I. Exception the is under first that ADTPA inapplicable argues Act, the at issue are of the because subject 4-88-101 practices § and this the FTC. It asserts with an order administered by comply had the Federal Trade Commission already on grounds in Penn- identical Mercury’s telemarketing practices investigated had filed one of the suit sylvania against appellants court, these a federal court order federal obtained governing the that order at the time identical and was administering practices, the It circuit State initiated action. maintains claims and violated the statute State’s by by issuing accepting injunction. be this: does by Mercury presented appears question circuit court have to issue a jurisdiction preliminary injunction ADTPA, under Ann. Ark. Code specifically pursuant where the 2001), 4-88-104(1) being enjoined (Repl. party § to an administered FTC involving order subject currently similar, same, as under 4-88- if not the practices contemplated § 4-88-101, of which 101. We turn to language governs ADTPA: applicability This does not to: chapter apply to and which subject Advertising practices rule, order, Federal administered with statute comply Trade Commissionf.] Ann. 4-88-101(1) 2001).
Ark. Code (Repl. court has observed that
This
questions
previously
are not
an interlocutory
jurisdiction
independently appealable
Harris,
See Villines
injunction.
supra.
appeal
hear
Villines,
had
the court
a “distinct basis
authority
specific
from an
The situation in Villines appears analogous here, situation where the statutory argued by exception Mercury concerns the circuit court’s to enjoin under the authority Mercury ADTPA. In this we are not regard, persuaded by Mercury’s contention that because statutory exception inextricably Furthermore, linked to this we should address it. we fail appeal, see how is in with an order Mercury administered compliance by FTC, which 4-88-101 for the to take requires exception § effect. We hold that the does not exception instant prevent appeal.
II. Standard ApplicableLegal that the State was erroneous in its argues conten- tion that it need show some credible evidence that reasonable violated, cause existed to believe that had or was likely violate, the ADTPA in order to receive a or temporary It contends that this court has never held that the General could authorize the of Assembly grant preliminary injunc- tive in the relief absence of two essential likelihood requirements: of success on the merits It harm. maintains that the irreparable is, best, court’s issuance of a preliminary injunction premised that the tone and cadence upon “suspicion ‘spiel’ — telemarketers which the trial court characterized as ‘quick — from someone in New gibberish not be Jersey’ might fully understood some Arkansans.” It asserts that nowhere in the circuit court of finding statement
record is there any harm, for such a basis much less evidentiary any irreparable of success on of likelihood nor is there any finding; express the merits. the ADTPA is Ark. relief under governed by
Injunctive 2001), Ann. 4-88-104 provides: Code (Repl. § hereunder, the to the criminal penalty imposed In addition authority, through General of this state shall have Attorney acting Counsel, to file action in the court designated Consumer chapter, civil enforcement of the this provisions 4-88-112 for to, of restitution and the seeking but not limited including, any engaging of an seeking injunction prohibiting person or unlawful deceptive practice prohibited by chapter. however, relies 2001). Ark. Code Ann. 4-88-104 (Repl. Mercury, 65 and our common law the on ArkansasRule of Civil Procedure that when issuing preliminary injunction proposition order, trial court must find: harm will (1) restraining irreparable order, in the absence of an result has demonstrated likelihood of success the merits. moving party Smith, Co., Inc. v. 140 S.W.3d Operating See AJ&K matter, As an initial we with agree he has a mandate to General that when specific statutory protect interest, for an traditional common-law prerequisites public as harm and likeli in civil such litigation, merits, are not Commonwealth hood of success on See applicable. *9 CRINC, 79, v. N.E.2d 792 ex (1984); Mass. 392 Mass. 466 People 874, Ill. 3d 471 N.E.2d rel. v. 128 Hartigan Dynasty Sys. Corp., App. (1984). decisions from foreign The State discussestwo state appellate the in of its that Rule jurisdictions proposition require- support do not to the State’s for ments preliminary apply request ex under 4-88-104. The most recent decision is State injunction § S.E.2d 792 rel. McGraw v. 196 W. Va. ImperialMarketing, case, the of West Court Appeals Virginia Supreme of a which restricted injunction examined the grant preliminary solicit West method and manner in which the could the appellee in the of and other The consumers sale products. Virginia jewelry issued observed that the method of analysis injunction court Va. the under W. Code 46A-7-110 West Virginia is Consumer Credit Protection Act more narrow than the motion for West typical applicable as statute follows: Virginia provided
With to an action to violations of this respect brought enjoin or chapter unconscionable fraudulent or unconscio- agreements conduct, nable to the court for attorney general may apply relief appropriate temporary against respondent, final pending determination of the If the court finds after a proceedings. hearing held notice to that there is reasonable to upon respondent cause believe that the in or is in respondent engaging likely engage restrained, conduct sought may to be grant any relief temporary order it deems appropriate. Va.W. Code 46A-7-110 (1974).
The West then went on to Virginia whether analyze the issuance of the under appropriate that statute:
The method of analysis governs propriety scope of an under W. Va. Code 46A-7-110 (1974) deviates from the standard for the customary issuance of relief and may best be as described whether the General has Attorney shown evidence, some existence of credible even if disputed, that reasonable cause exists to believe respondent is in engaging isor likely conduct engage sought be restrained. In other words, the General need not prove respondent has Act, fact violated but needs to make a minimal evidentiary reason showing good to believe that the essential elements of violation of the Act in view. footnote,
Dynasty Court Corp., supra. Appellate Division, Fourth examined an denial interlocutory appeal of a motion to vacate a order and to vacate temporary restraining
330 from the marketing enjoining appellees a injunction preliminary services, sales consisted of a multi-level their products program. the the issuance of statute injunction
The Illinois governing provided: is to believethat any.person the Generalhas reason Attorney Whenever method, used, actor declared practice by is aboutto useany has or
using,
and that
proceedings
Act to be
unlawful,
2
20
this
through
Sections
interest,he
an action... to
bring
the
or shemay
wouldbe in
public
the use of such
injunction
restrainby preliminary permanent
,
method,
267.
par.
Ill.Rev. Stat.
ch.
1/2
practice.
act
One of
N.E.2d
added).
128 Ill.
3d at
(emphasis
App.
General,
the Illinois
was whether
Attorney
issuesbefore
a
in
injunction,
required
prove
seeking
an
The Illinois
injunction.
common-law
traditional
requirements
an
is
that “when
autho
court reiterated a
injunction
prior holding
statute,
relief need
common-law
grounds
rized
traditional
by
statute
established and
requirements
court then concluded that
Id.,
The question In 1974 statute under 4-88-104. West Virginia, to file suit and General provided authorized Attorney order would issue upon temporary restraining court of “reasonable cause believe” engaging respondent Illinois, the that if the statute in forbidden conduct. provided that an unlawful “has reason to believe” practice General he she or may interest is contrary public being perpetuated, statute The Illinois injunction. seek a or permanent should what standard the court employ offers no guidance issuing *11 us, case before the Arkansas General Attorney had that a of the ADTPA was reason believe violation
clearly afoot, which he detailed in his and in his motion for complaint At the the Attor January hearing, preliminary injunction. from several Arkansas small- General ney presented testimony services, owners had been for its business who charged Mercury Knoll, Pawn; H Dale Dennis owner of H & including Haugen, Restaurants; office Cow Denise manager Hoggard, Purple Stewart, and owner of Dixon Manor Mobile attorney; Joe Park. of the Home None owners’ had been authorized employees service from to the owners. Some Mercury, accept according the owners testified that had never received information they in the mail. And some that would testified have Mercury they no use for the services offered that had they already services, internet did not internet service aor they require website. Each owner testified that after a bill phone reviewing a from the General did he or upon receiving survey she discover that the business was billed for being Mercury’s cross-examination, services. for some of During Mercury played the owners and the court of the circuit tape recordings calls that between the telemarketing owners’ phone transpired The circuit court later described employees Mercury. these calls as like the from The phone sounding Chipmunks Chipmunk Show, a spiel, “quick gibberish.”
We conclude that -the circuit court believed that clearly violation ADTPA was At circuit court’s occurring. July 14, 2003 court said had “there felt was hearing, previously 26, 2003, case for an pretty strong injunction[.]” On August court circuit stated that his inclination was to grant order had because there been a on matter hearing and there year was “substantial evidence in previously case[.]”3 violation,
The circuit court found evidence of a we hold that the court’s in this was not regard clearly America, erroneous. SeeArk. R. Civ. P. 52(a); Bank Thompson 576, 157 Moreover, S.W.3d 174 (2004). the circuit court argued We whether has that there was not sufficient question appeal arguments evidence that the ADTPA had been Rather, violated. its couched terms of no substantial evidence of harm or likelihood success merits. on the not issue that one reason it did
admitted to parties trial on merits was it believed a full earlier case, the isshed not to be the imminent. When proved to us to a reasonable This appears court’s decision upon public’s premised explanation interest. *12 court whether the circuit Mercury At one questioned point, to it was in The court went on that
was business the state. say doing of the chance of harm the because injunction issuing preliminary in Arkansas. This seems to the if is business doing Mercury public trial on whether to issue a reasonable. If at entirely permanent that has ceased business it is determined doing injunction Mercury then, Arkansas, the the be moot. Until in matter will should stand. we hold that the circuit court’s finding Again, P. was violated is not erroneous. SeeArk. R. Civ. ADTPA clearly 52(a).
III.
Comity
Judicial
that it is a
of
For its final
violation
point,
urges
for an Arkansas court
to issue
judicial comity
in
is in
when federal district court order
Pennsylvania
the
case
effect and
administered
FTC.
cites our
being
167,
Ark.
Petroleum,
of
Inc. v.
348
72 S.W.3d
ThreeSisters
Langley,
The State
95
in
of its
(2002),
argument.
support
disagrees
on
that
reliance
ThreeSisters
Mercury’s
misplaced.
argues
in
The
is correct. This court’s
Three Sisters
State
analysis
Petroleum,Inc. v
to
instant case.
inapplicable
Langley,supra,
case,
that
this court reviewed a
order
restraining
from
circuit court
Arkansas
enjoining
appellants
proceeding
court. After
further in a similar suit in Louisiana state
rejecting
and likelihood of success
circuit court’s bases for
harm
merits,
this
noted that the
order at issue
court
of
between courts of
the “common
comity
ignored
principles
sister
Here, Pickett, unlike the facts in the state Louisiana court has fact, jurisdiction over all of the In the issue of parties. jurisdiction has been with repeatedly litigated, the Louisiana state court and both the Arkansas and Louisiana federal courts ruling jurisdiction court, in belonged Louisiana state due to fact that Louisiana residents were on both sides of the suit. Although have' Appellees recent appealed most jurisdiction state ruling by Louisiana court, it is not will apparent they succeed on that issue. Moreover, the in holding Cook clearly demonstrates this court’s historic reluctance to injunction support a resident of restraining a sister state from awith suit proceeding already instituted in that short, state. In the circuit court’s issue authority to injunctions suits foreign should be in exercised the rarest of circumstances. is not
This such a rare circumstance. 178-180,
Id. at 72 S.W.3d 103-04. hand,
In the case at same both in parties federal district court case and the Pennsylvania Arkansas case. case, the State was not in the Namely, federal and the FTC party Moreover, is not a here. while actions party of Mercury might case, be the in same each those actions could violate both certainly 334 addition, in the case the State instant federal statutes. In
state and action or federal does to the FTC’s not seek enjoin prosecution The circumstances injudi- taken in resulting being Pennsylvania. to are not cial which were at issue ThreeSisters analogous comity that Arkansas has the at issue here. We conclude right situation its citizens. There was no violation to on behalf of seek restitution of judicial comity.
Affirmed.
Corbin, dissent. Hannah, Imber, JJ., I I dissent. dis- Hannah, dissenting. respectfully Jus e,e, re- c c conclusion Rule 65 majority’s ti ti Jim for a do not State’s quirements apply request preliminary case should reversed under I believe this 4-88-104. injunction § the of Rule 65 to circuit court remanded application State’s request to issue a whether determining 65, the court Rule circuit order restraining
temporary pursuant result must two whether harm will consider irreparable things: order, and (2) in the absence of an a restraining a likelihood of success whether the has demonstrated moving party Petroleum, Three Inc. v. 348 Ark. on the merits. Sisters Langley, Smith, K Co. v. S.W.3d Recently, Operating AJ& this court took (2004), S.W.3d review for that the standard of clarify opportunity order or is whether the circuit preliminary injunction standard its discretion. We stated: “The of review abused the two of a TRO or same for essential components prelimi- harm, and likelihood of success on nary injunction: Watkins, David & Civil Procedure merits. See Ñewbern John J. 29-2, at 437 ed. (3d 2002).” that in cases where the General holds majority *14 interest, tradi- “has mandate to a protect public statutory specific for in tional civil litiga- common-law prerequisites tion, of success on such as harm likelihood irreparable merits, not I rules of civil Our disagree. procedure applicable.” in all suits actions of in the circuit courts or govern a civil nature with the procedure in Rule 81. Ark. R. stated See exceptions in relevant Civ. P. 1. Rule provides, part: These shall to all civil apply pro- in General. rules (a) Applicability those in the circuit of thisstate in except courts ceedingscognizable a a instanceswhere statute whichcreates or right, remedy proceeding in which event the procedure specificallyprovides procedure different so shall specified apply. (c) ProcedureNot Prescribed. When no procedure spe- Specifically rules, cifically these prescribedby thecourtshall in proceed any lawful State, mannernotinconsistentwith the Constitutionofthis theserules or statute. any applicable
Ark.
P.
R. Civ.
81(a), (c)
added).
(emphasis
case,
In the
4-88-104
present
2001)
(Repl.
provides
§
ADTPA; however,
for civil enforcement of the
remedy
4-88-
§
104 does not
a different
specifically
for
provide
procedure
seeking
such,
relief. As
injunctive
in Rule
does
81(a)
exception
Further, the Rule
does not
apply.1
81(c)
a basis
exception
provide
for
Where,
from our
here,
rules of civil
deviating
as
procedure.
rules,
is not
procedure
specifically
these
the court
prescribed by
shall
lawful manner
proceed
not inconsistent
with the
Constitution,
Arkansas
our rules of civil
procedure,
any appli-
cable statute.
a new
for
By creating
procedure
seeking injunctive
relief, the
authorizes
majority
which is inconsistent
proceeding
with a rule of civil
procedure. Specifically,
judicially-created
is inconsistent with
procedure
Rule
the circuit
requires
court to consider: (1) whether
harm will result in the
absence
order,
of an
and (2) whether the
has demonstrated a
moving party
likelihood of success on the
merits. This new
is also inconsistent with
procedure
this court’s
1 See Weissv.
336 well-settled rule that the standard of review for is whether the circuit order or court abused its discretion.
Moreover, it is unclear what this new exactly procedure circuit court has entails. states already majority “[t]he found substantial evidence to a violation of the FTC order support which would constitute a violation of the ADTPA.” Shortly thereafter, circuit court states found majority “[t]he violation, evidence of a and we hold that the court’s in this much evidence erroneous.” How warrants regard clearly of an issuance injunction?
Had the
intended
a new
General
institute
Assembly
4-88-104,
relief under
or to
seeking
procedure
injunctive
§
deviate from the rules of civil
it could have done so. In
procedure,
Lester,
662,
State v.
343 Ark.
The Arkansas
the inher
Constitution confers
courts
upon
State,
ent
rules of
Miller v.
authority
promulgate
procedure.
223,
However,
7,
Ark.
(1977).
Lester, 343 Ark. at S.W.3d 316. the General is aware of its
Clearly, Assembly authority enact statutes to rules of For pertaining procedure. example, 5-37-407, General enacted which covers Assembly forgery 2 Article sections 1 and 4 were Amendment 80, 3, repealed provides: pleading, “The Court shall these rules of for all Supreme prescribe practice procedure enlarge abridge, right these rules shall not substantive courts; modify any provided right jury shall of trial as declared in this Constitution.” preserve
337 cable This statute makes clear fraudulent in television. practices relief, in for General Assembly, providing injunctive In a civil intended to deviate from the rules of civil procedure. action under that subchapter, may declaratory “[t]he [a]ward remedies, relief and other final equitable including preliminary or restrain violations of this injunctions prevent subchapter, without has or will actual requiring proof plaintiff suffered suffer law.” harm lacks an at Ark. damages irreparable adequate remedy Code Ann. 5-37-407(b)(1) 2003) added). (Supp. (emphasis
No relief is in procedure seeking injunctive provided omission, evidence 4-88-104. Without of a this court drafting will not read into what is not there. Cave legislation City Nursing Home, Servs., 13, Inc. v. Arkansas Human 351 Ark. 89 Dep’t of case, S.W.3d 884 In this there is no evidence of a (2002). drafting omission, nor is there evidence that the General Assembly intended to different rules of I believe provide procedure. Again, Rule 65 applies.
Further, I believe that the circuit court abused its discretion the State’s motion for In Three granting preliminary injunction. Sisters, we stated: supra, the first
Regarding
this court has held:
necessary showing,
“Essential to
issuance of a
order
temporary restraining
that a failure to
finding
issue will result in
harm to the
irreparable
Kreutzer,
244,
670,
271
applicant.”
Ark. at
607 S.W.2d
671 (citing
Ark.
P. 65).
R. Civ.
“The
harm or lack of an
prospect
irreparable
otherwise
is the foundation
adequate remedy
to issue
power
Teachers,
relief.”
injunctive
Wilsonv. PulaskiAss’n Classroom
330
302,
298,
Three
In this
the order of
itself
harm. At the
on the State’s
tains no
hearing
irreparable
reconsideration,
the circuit court stated that it believed
motion
there was a “chance for harm if
continue the
they
way they’re
and it’s hard to
of conduct from
a lot
going,
of
stop
type
hurting
fact that’s what...
added.)
people
going
(Emphasis
[is
on].”
ifIn
harm is
considered
when it
Generally,
cannot be
or redressed
adequately compensated by money damages
Sisters,
in a
Ark.
at
court of law. See Three
72 S.W.3d
Clark,
Kreutzer v.
For the I believe that this should be foregoing case reversed and remanded for the circuit court to apply appropri- ate standard. JJ., join. Imber,
Corbin