Vicki WHITE, Executrix of the Estate of Noel Baker, Jr. v. Daryl DAVIS, Kevin Davis, and Gary Davis, d/b/a Davis Dairy, d/b/a Davis Brothers Dairy, and d/b/a Davis Dairy Farm
02-1092
Supreme Court of Arkansas
March 6, 2003
99 S.W.3d 409
TOM GLAZE, Justice. This case is before us on petition for review from the court of appeals. We granted the appellee Gary Davis‘s petition because the issue presented on appeal called for an interpretation of
In November of 1994, Noel Baker, the appellant, selected eighty Holstein heifers from Gary Davis and Davis‘s brothers’ dairy farm, residents of Missouri, agreeing to pay $104,000 for the cows, and an additional $2,634 for twenty-six tons of аlfalfa hay. After Davis delivered the cattle to Baker in December of 1994, Baker discovered that the cattle delivered and paid for were not the same animals that he had selected from Davis‘s dairy. Baker notified Davis that the cattle were not the ones he had selected and demanded the return of the money he had paid. Davis refused to return the money, and as a result, Baker filed suit against Davis in Searcy County.1
Davis subsequently moved to dismiss, alleging that Baker‘s complaint failed to set forth facts that would support a finding that Davis had contact with Arkansas, as is required to confer personal jurisdiction over him. The Searcy County Chancery Judge signed a decree on December 30, 2000, finding that the Arkansas courts had personal jurisdiction over Davis. The judge went on to find that Davis had defrauded Baker, and awarded damages totaling $360,657.93. The decree was filed and entered with the court clerk on January 19, 2001.
On February 13, 2001, a hearing was held on the motion for new trial before a newly-elected chancery judge, Michael Maggio,2 in Faulkner County, which is in the same judicial district as Searcy County. At the outset of the hearing, Judge Maggio noted that he was “at a little bit of a disadvantage [beсause he did] not have the complete file; that is up in Searcy County.” Noel Baker‘s counsel noted that the case had been tried in Searcy County, but the motion was being heard in Faulkner County. Counsel stated that “we are here because of the moving party, and not by agreement. We do not agree to the hearing. It is our position that this is outside the venue of the court action. The original court file is not here, and neither is the docket.” The judge replied, “All righty. All righty.” The parties then went on to present their arguments, and the judge eventually granted Davis‘s motion for new trial, finding that Davis was not subject to the personal jurisdiction of the court. The judge then vacated the decree and dismissed Baker‘s complaint without prejudice.
Baker appеaled, challenging the chancellor‘s authority to hold the hearing in Faulkner County over Baker‘s objection. In response, Davis argued that Baker never obtained a ruling on the venue question below, and therefore, the issue was not preserved fоr appeal. In a split decision, the court of appeals agreed with Baker, concluding that the issue was directed to the chancellor‘s attention when Baker objected to the hearing and his objection was resolved by the chancellor‘s continuing on with the hearing. Estate of Baker v. Davis, 79 Ark. App. 188, 191, 85 S.W.3d 553 (2002).
In reaching this conclusion, the court of appeals relied on McMahan v. Berry, 319 Ark. 88, 890 S.W.2d 242 (1994). In that case, McMahan objected to a proposed jury instruction, but the
McMahan, however, appears to be an unusual decision, and our case law otherwise overwhelmingly requires a party to obtain a ruling on an objection in order to preserve the issue for appellate review. In McDonald v. Wilcox, 300 Ark. 445, 780 S.W.2d 17 (1989), we explained the reason for this rule as follows:
We have held many times that the burden of obtaining a ruling is on the movant, and objections and questions left unresolved are waived and may not be relied upon on appeаl. Richardson v. State, 292 Ark. 140, 728 S.W.2d 510 (1987); Britton v. Floyd, 293 Ark. 397, 738 S.W.2d 408 (1987); Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986). By appellant‘s [McDonald‘s] failure to include any record of a ruling, we are faced with essentially the same situation on review.
We have no way of determining from the record that the trial court did in fact make a ruling, nor, assuming one was made, the nature or extent of the ruling. It may be that the trial court reserved a ruling until the evidence was more fully developed and that the issue was left unresolved. It may be that depending on the ruling, appellant [McDonald] waived any objection on apрeal, because it was he who elicited proof of the convictions during his case in chief. The point is that with no record of a ruling we can only speculate as to whether a ruling was made and what the particulars of the ruling may have been. Obviously, for an accurate and fair review of the question, that information is critical.
McDonald, 300 Ark. at 447-448. See also Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999); Vanderpool v. Fidelity & Cas. Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1997); McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991).
Here, Noel Baker‘s counsel told the judge that he did not agree to the hearing, and it was counsel‘s position that venue was in Searcy County, not Faulkner County. However, counsel made no mention of the venue statute,
Consistency requires that we follow our long-standing rule that a moving party bears the burden of obtaining a ruling on any objection, and in the absence of such a ruling, the issues are not preserved for our review.4 Because Baker did not properly obtain a ruling on his objection to venue being in Faulkner County, we are unable to reach the merits of this appeal, and the decision of the trial court is affirmed.
BROWN and HANNAH, JJ., dissent.
THORNTON, J., not participating.
ROBERT L. BROWN, Justice, dissenting. The majority today returns to the tired practice of the past and decides this case on an asserted procedural defect. Based on this
The fact that the trial court effectively ruled on the appellant‘s venue objection is clear on the face of the record. The appellant objected to the proceeding going forward in Faulkner County, becausе the trial had taken place in Searcy County. Following the venue objection, the trial judge said, “All righty,” and proceeded to hear the new-trial motion where he was — in Faulkner County.
According to the majority, there was no ruling on the appellant‘s objection to the hearing taking place in Faulkner County. I ask the rhetorical question: What could be more of a ruling than proceeding with the hearing in Faulkner County when that was the basis for the objection? Holding that no ruling was made under these circumstanсes elevates the importance of uttering one word — “denied” — to dizzying heights.
Over the past decade, a trend has been established in this court to eliminate procedural pitfalls that resulted in no decision on the merits of a case. Those рitfalls were frustrating to both the bench and bar. See, e.g., Leon Holmes, Pitfalls of the Appellate Practice: Avoiding the Serbonian Bog, ARKANSAS LAWYER (Summer 2000). Some of the more obvious examples have been corrected: (1) the elimination of an absolute affirmance for abstract deficiencies (Ark. Sup. Ct. R. 4-2(b)); (2) providing that a notice of appeal filed before entry of judgment would be considered filed the day after that entry (Ark. R. App. P.—Civ. 4(a)); (3) providing that a notice of appeal filed beforе an order disposing of posttrial motions shall also be deemed filed the day after the entry of that order (Ark. R. App. P.—Civ. 4(b)(2)); (4) providing that in a criminal trial, a motion for directed verdict at the close of all the evidence will be deemed denied when thе trial proceeded ahead (Ark. R. Crim. P. 33.1(c)).
With respect to the precise issue confronting this court today, we decided an analogous case in 1994 in a unanimous opinion
However, counsel objected to the agency instruction, stating correctly why it should not be given. The trial court then proceeded to give the errant instruction. The giving of the instruction effectively became the ruling аnd we can see no sound reason why more should be required.
McMahan v. Berry, 319 Ark. 88, 94, 890 S.W.2d 242, 246 (1994). In the McMahan case, as in the case before us, the issue was whether the action of the trial court in proceeding with the trial constituted a ruling. This court held that it did, even though the trial judge had not uttered the word, “Denied.” A majority of the court now holds that the McMahan case was an aberration, and that we should, in effect, pretend the case is not there. In holding as it does, the majority wants to retrench and decide cases based on an outmoded procedural pitfall.
The majority cites two post-McMahan decisions in support of the uncontroverted rule that we will not decide issues raised on motion or objection when the trial court has not ruled. See Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999); Vanderpool v. Fidelity & Cas. Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1997). That rule is not the issue in this case. The issue here, as in McMahan, is whether the judge effectively ruled on the venue motion by his аctions in beginning the trial. It is obvious that he did.1
I would hear this case on the merits, and, for that reason, I respectfully dissent.
HANNAH, J., joins.
Notes
At any time while mentally and physically competent and physically present in the geographical area of the judicial district which he serves as chancellor, the judge of a chancery court may hear, adjudicate, or render any appropriate order with respect to any cause or matter pending in any chancery court over which he presides, subject to such notice of the time, place, and nature of the hearing being given as may bе required by law or by rule or order of the court. However, no contested case can be tried outside the county of the venue of the case, except upon the agreement of the parties interested.