*1 MARTIN v. D. Lasley Tim WILLIAMS Kelly Gill, III R. James 980 S.W.2d 97-1228 Court of Arkansas 19, 1998 delivered November Opinion delivered denial rehearing [Supplemental opinion January 1999.*] * Glaze, Imber, Smith, dissent. JJ., *3 for Williams, Firm, by: appellant. Law David Rose L. PLC, by: Brazil, Mur- Osment, & Michael L. Adlong, Murphy for Martin. Lasley appellee Kelly phy, Mitchell,Blackstock,Barnes, Ivers, & Wagoner by: Wagoner Jack III, for III. R. Gill appellee James Chief This is the fifth Arnold, W.H. “Dub” Justice. these
appeal from a law- involving parties, stemming suit filed in 1990. This originally is from an award of appeal $23,336.00 in sanctions under monetary Ark. R. P. Civ. entered the Faulkner by Circuit Court County against appellant, Williams, Tim D. who III, R. represented as appellee James the defendant in the action the fraudulent sale original involving of a used car. Martin was the Appellee Kelly Lasley plaintiff action in which original was entered on October favor, in her costs. plus Mr. Gill had Although of the knowledge original appeal and had original judgment same, his authorization given Mr. Gill was never informed Mr. Williams that that by appeal dismissed eventually Arkansas Court of by for Mr. Appeals Williams’s failure to perfect appeal. various Subsequently, Martin, motions were filed Ms. as the plaintiff, attempt time, execute Williams, on the Each judgment. purportedly behalf, on Mr. Gill’s would either move to those motions or quash motions; however, adverse on the rulings those appeals were never and each was dismissed perfected ultimately Court of than Other Appeals. original appeal original *4 Mr. Williams filed three judgment, without his subsequent appeals authorization, client’s issues, or on knowledge various never yet of those perfected The Court of any appeals. dismissed Appeals each failure to file a brief. The appeal appellant’s fourth time the Court of dismissed an it Appeals forwarded a of appeal, copy to the Committee on proceedings Professional Conduct. 10,
A 1997, was held on hearing on Ms. April Martin’s Peti- Fees, tion for Sanctions and which had been filed Attorney’s on 23, October 1996. served Although with notice being properly of this Mr. Williams did not hearing, attend. At the Mr. hearing, Gill testified that he had not been informed Mr. Williams of case, status of the that the proceedings Court including of had dismissed the Appeals of the as appeal original Mr. Gill further testified that he untimely. had never authorized to the original postjudgment a to file response Mr. Williams of of notices or file appeal to undertake any motion to compel order amended By proceedings. the subsequent postjudgment ordered 1997, Circuit 8, the Faulkner County dated May 11, Martin, to Rule Ms. to pursuant to sanctions Mr. Williams pay $10,000.00 $4,513.00, in damages, punitive the amount of plus in Mr. to further ordered pay Williams was Mr. interest. plus $10,000.00. $8,823.00, award of client, a separate plus his former of the order and vacate to reconsider filed a motion Mr. Williams then David Reynolds Honorable Judge 1997. The May as was Lawrence Dawson assigned The Honorable Judge recused. to recon- motion determine the circuit to pending judge special time Mr. at which held on A was sider. hearing June Williams his motion and also por- in disputed testified support Mr. testimony. tions of Gill’s prior with Dawson agreed conclusion of hearing, Judge At the fact, he reduced the except findings Judge Reynold’s prior $10,000.00, $20,000.00 with to from amount of damages punitive Martin and Mr. Gill. each to Ms. Specif- being payable had the that the trial court authority, Dawson found ically, P. to to Ark. R. Civ. impose punitive pursuant to the he had filed two because appeals Williams against the trial court’s postjudg- Arkansas Court of regarding Appeals, orders, he never intended to admitted that ment and subsequently Further, that two he found with those follow through appeals. for the delay, filed solely purpose notices were improperly, or knowledge without the authority were that pursued appeals Mr. Williams he found that client. Additionally, of Mr. Williams’s that P. 11 oppos- violated Ark. R. Civ. by certifying pleadings fact, when, no such service had been served counsel ing found that Mr. Williams engaged made. Dawson Finally,Judge court, course of parties, continuing misrepresentation counsel, to his failure perfect subsequent opposing 5, 1993, and that these October judgment, original appeal conceal from his client intended to were misrepresentations dismissed that the Arkansas Court fact Appeals *5 file the notice of failed to timely appeal. because Williams’s bench at the from the also made findings Dawson specific 168
close of and those reference in his order testimony incorporated It 1997. is from that order that Mr. Williams now June appeals. asserts four that the circuit (1) Appellant points appeal: court erred and abused its discretion in Rule sanc- imposing tions for conduct that did not involve the of a signing pleading filed; document that must that the circuit court abused (2) its discretion in sanctions to Mr. who was awarding client; former that the circuit court abused its dis- (3) appellant’s cretion in both the amount of sanctions and the imposition “additional that the circuit punitive damages”; (4) judge abused his discretion (Judge Reynolds) to set aside by declining the sanctions order in his order of recusal.
It is to note that the contend that the important appellees abstract is deficient and therefore the trial appellant’s flagrantly court’s should be affirmed to Rule pursuant 4-2(b)(2) the Arkansas Rules of Court. While this Court Supreme abstract was somewhat agrees we find that appellant’s lacking, it was not so deficient as to warrant blanket affirmation pursuant Therefore, to Rule based 4-2(b)(2). the merits of the case upon below, reasons set forth we affirm the trial court’s decision in and reverse in part part.
I. Whether circuitcourterredand its abused discretionin Rule 11 sanctions conductthat did not involve imposing the signing or documentthat must be pleading filed.
The
of sanctions is a serious matter to be
imposition
handled with
and the trial court’s decision is due
circumspection,
substantial deference.
v.
307 Ark.
Goldsby,
Jenkins
S.W.2d 842
The
(1992).
Court reviews a trial court’s
determination of whether a violation of this rule occurred under
an abuse-of-discretion standard. Ward v.
Dan Cleaners &
Dapper
Inc.,
Laundry,
S.W.2d 833
In
(1992).
deciding
sanction,
trial courts have broad
appropriate
discretion not only
occurred,
whether sanctionable
determining
conduct has
but
also what an
sanction should be. Crockett& Brownv.
Wilson,
321 Ark.
Arkansas Rule
applies
motion,
an
of a
and other
represented
paper
party
pleading,
asserts that
sanctioned
added.) Appellant
attorney.” (Emphasis
court, rather than
the trial
statements before
conduct involved oral
motions,
to Rule
that must be filed
or
pursuant
papers
pleadings,
the trial
beyond
filed before
Court Appeals
5 and motions
filed,
admit, however, that he
does
court’s jurisdiction. Appellant
court,
never
which were
trial
several notices of
per
appeal
motions
and
fected with the Court
many postjudgment
Appeals
to execute on
and
while
plaintiff
attempting
pleadings
his cli
which
had no authorization from
appellant
ent,
was on the notices of
to file. Appellant’s signature
and
and would cer
motions
pleadings
appeal
postjudgment
under
11.
be considered
at the
least
Rule
very
tainly
“papers”
Further,
that
never served the notices of
it is undisputed
appellant
Martin,
her
on the
Ms.
or
attorney
original plaintiff,
appeal
of them for this Court’s benefit.
has failed to even abstract some
to offer
whatsoever that a
fails
any authority
Appellant
not such a
or
notice of
is
Appellant’s
pleading
“paper.”
is
failure to cite
or make a
suffi
authority
convincing argument
the trial
on
cient reason for affirmance of
court’s
this
ruling
point.
State,
It is cer
Williamsv.
329 Ark.
We have held in Crockett&
that under
P.
Clearly, in a course of conduct that was was engaging prejudicial to the administration of notices of justice by knowingly filing *7 and other meritless motions and postjudgment pleadings with the trial court for the when he knew that purposes delay, so, neither the authorization of his client to do he had obtained he the In nor had served said notices of appeal upon plaintiff. short, vehicle, a used the trial court as one compounding appellant another, after all at the of the misrepresentation expense parties involved, his own client. including
Therefore, the trial court will affirmed on this point. II. the circuit abusedits in Whether court discretion Rule awarding Gill, to
II sanctions Mr. who was Mr. Williams’s client. former sanction, an trial courts have Again, deciding appropriate broad not whether discretion sanctionable only determining occurred, conduct has but also what an sanction appropriate be, should and that court’s determination will not be overturned this Court absent an abuse of that discretion. In the present case, the trial court determined that both the opposing party client, former Mr. should receive the appellant’s monetary awards of Rule 11 sanctions the Rule imposed against appellant. 11, however, rule, states that if a filed in is violation of that paper sanction, the court an “shall ... which impose may an include order to to the other or the amount of the pay party parties reasonable incurred because of of the expenses filing pleading, motion, or other a reasonable fees.” paper, including attorney’s added.) (Emphasis
Neither the of Rule 11 nor language any reported decision of this award of Rule 11 sanctions in supports favor of a his own The reference to party against attorney. specific “the other demonstrates that sanctions are party parties” payable adversaries, to not client to one’s own sanctioned attorney. The 11 is to deter abuses purpose litigation process that have the for the interests of the harming potential opponent, not to breaches of duties owed to discipline attorneys alleged their own clients. their clients would maintain Certainly, their for the lawsuit attorney file a against malpractice right client. to his owed by attorney breach any duty Further, filed nor his new any neither Gill attorney other notice 11 sanctions or any motion for Rule provided Rule 11 sanctions that Mr. Gill would seek against in Ms. Martin’s Mr. Gill joined petition simply orally appellant. sanctions, at the filed on October hearing previously 23, 1996, the 1997 amend the matter on 1997. Pursuant to April effective on March ments to Rule which became 1, 1997, filed until “must be served but shall not be motion for sanctions after the motion to withdraw is service of given days party The of the amendment is to pro challenged filing.” purpose that a is not vide a “safe harbor” Rule motions so against party unless, motion, to sanctions after subject receiving party P. refuses to withdraw the Ark. R. Civ. position. Reporter’s *8 would, Notes to 1997 Amendment. The “safe harbor” provision therefore, Mr. oral to Gill’s apply April petition 10, 1997, and have left notice of Mr. sanctions would with no intention such Gill’s to seek sanctions.
Therefore, Mr. because Gill was for appellant’s mer client and not an “other as described in Rule and party,” because of the “safe harbor” amendment to Rule the award of client, sanctions in favor of his former against appellant an trial and will was abuse of discretion the court hereby hold, however, reversed. We that Ms. Martin is an “other party,” 11; furthermore, as described in Rule we hold that the “safe har bor” amendment was not in effect at the time her of a of filing and sanctions fees and therefore would not petition attorney’s her apply petition.
III. court abused its Whether the circuit discretion in both the amount sanctions and the “additional imposition punitive damages.” of above, sanction,
As stated in an trial deciding appropriate have courts broad discretion not in whether only determining occurred, sanctionable conduct has but also what an appropriate sanction should be and that court’s determination will not be absent an abuse of that discretion. overturned this Court Upon a violation of Rule the trial court must impose finding case, in this the trial felt sanction. judge Apparently, appropriate award to both the that monetary opposing party appellant’s client the sanction.” former “appropriate case, that when a
The & Brown Crockett supra,requires issued, the award is the trial court should basis monetary explain the sanction so a court have a basis to determine reviewing may whether the chosen sanction is The trial court appropriate. the should consider the reasonableness of (1) opposing party’s fees, deter, the minimum to (2) (3) ability attorney’s pay, factors to the of the Rule 11 violation. (4) relating severity case, Dawson, In the instant who was after Judge appointed recused, had addressed each of Judge Reynolds specifically and, above-enumerated considerations in his after address- findings them, were, determined that ing indeed, Judge Reynolds’s with amount of exception punitive, them, called or as Dawson were Judge “exemplary” damages awarded; $20,000.00 felt that Dawson total Judge “exemplary” was excessive and reduced that amount to damages to each Ms. Martin and Mr. ($5,000.00 Gill). payable Dawson addressed his Judge specifically findings appro- priateness imposition punitive “exemplary” damages under Rule 11. found that while Dawson Rule 11 does not Judge address use of specifically punitive damages, primary pur- of Rule 11 is to deter future abuse. Dawson pose litigation found that when all of the conduct into account in the taking case, instant were damages “exemplary” appropriate. standard, to the abuse-of-discretion
Again, pursuant the trial court will be affirmed in to the of regard appropriateness Martin, the award and amount of sanctions to Ms. but monetary reversed as to the award of favor of Mr. any monetary Gill, as he client. was former appellant’s IV. Whetherthe circuit abusedhis discretion judge (JudgeReynolds) to set aside the sanctionsorderin his recusal.
by declining After filed his motion to reconsider the appellant entry 19, 1997, sanctions on Circuit David May Judge Reyn- olds recused and that a to hear judge assigned requested special recuse; he had that the case. No Judge Reynolds party requested did so sua sponte. recusal, motion, due the the that requested By appellant vacate the order and May
circuit should also judge to determine the new trial in order to judge assigned permit for sanctions and fees the amended attorney’s underlying petition the court’s without restricted to being reconsidering previous The court declined to that motion. order. grant the circuit contends that the failure of court to Appellant and the in a vacate its successorjudge opinion placed appellant “difficult, untenable and was a denial of due position” process. however, is somewhat Appellant’s point appeal, misleading, that it the fact that the circuit Daw- ignores judge (Judge special entered son) his own order after hearing testimony appellant in a hearing. separate Dawson noted in his
Judge
findings:
The court has
hours last week
for this
spent many
preparing
involved,
a
because
lot is
and even
the case
hearing
though
started out
a
it
being
plus judgment
plaintiff,
motions,
has snowballed
thick
into two
volumes of pleadings,
orders, notices of
appeal,
what-have-you.
does not
Dawson was
Certainly, appellant
dispute
well
and had
reviewed the record
to hear-
prepared
carefully
prior
his
There is
ing
testimony.
simply nothing
support appellant’s
“difficult,
contention that the successor
in a
untenable
judge
him
as
described
in his brief.
position,”
appellant
In
of his
cites the cases of
argument,
support
John-
Sturdivant,
663-B,
son Timber
v.
Ark.
174 there was some error
Even assuming procedure circuit on for before which this matter came hearing special by and, therefore, held, was was hearing judge, separate therefore, was, harmless. We error not Any alleged prejudiced. as well. the trial court on this affirm point, hereby court’s decision in we affirm the trial Based on foregoing, and reverse in part. part concur. JJ., Imber,
Glaze Justice, concurring. Imber, I Annabelle Clinton but write to further concur with expand majority that the of Mr. Williams’s first analysis argument majority’s sanctions for conduct trial court abused its discretion imposing of a or document must that did not involve signing pleading be filed. filed her Petition for Sanctions and
At the time Ms. Martin
23, 1996, three of the
filed
Fees on October
by
Attorney’s
appeals
How-
had been dismissed
the Court of
Mr. Williams
by
Appeals.
ever,
was still
It is
a fourth
filed
Williams
by
pending.
appeal
clear that the trial court retained
to rule on Ms. Mar-
jurisdiction
Fees
Petition for Sanctions and
while an
tin’s
Attorney’s
sanctions under
11
because motions
requesting
pending,
the Arkansas
of Civil Procedure are collateral to the mer-
Rules
Wilson,
Brown,P.A. v.
its of the
action. Crockett&
underlying
150,
Ark.
Creek
Ctr. v. Sar-
(1995);
901 S.W.2d
Living
Spring
rett,
318 Ark.
With
to Mr. Williams’s
regard
no
to award Rule 11 sanctions based
documents
jurisdiction
upon
that are filed in the Court of
or the
attorney
signed
Appeals
Court, we have held that the Rules of Civil Procedure
Supreme
in trial
the conduct of the
only
parties
attorneys
govern
courts.
v.
320 Ark.
175 Court or filed in the to Supreme With regard papers be considered are to by motions for sanctions Appeals, the Rules of under Rule 11 of court appellate 1, Procedure, March into effect on which went Civil Appellate a notice is taken filing appeal 1997. by Although appeal decree or entered the clerk of the court that judgment, with the taken, not have a trial court does which the is order from appeal Ark. R. of a notice of See to validity appeal. authority pass Rather, in the is vested such 3(b). authority P. — Civ. App. State, Id.; v. 328 Ark. 940 see also Stahl Court. Supreme State, Barnesv. 912 S.W.2d S.W.2d 880 (1997); that: Ark. R. P.—Civ. 3(b) (1995). provides Specifically, App. take further Failure of the or cross-appellant any steps to secure review of the or decree from shall appealed but shall be not affect the or validity appeal cross-appeal, Court deems for such action as ground only appro- which include dismissal of priate, may appeal cross-appeal. case, In this Ms. Martin filed her Petition for Sanctions and Mr. Williams not after several notices of Gill against only Williams, were filed Mr. but after he filed also several by fact, in the circuit In motions court. postjudgment pleadings her Petition for Sanctions listed five motions and postjudgment filed Mr. Williams and characterized those as pleadings by papers follows: of the above are identical and restate virtually pleadings [A]U
what has been filed. These are already previously pleadings and have been filed to further these unnecessary pleadings delay Further, Plaintiff has incurred unneces- proceedings. repeatedly sary to these .... expense responding pleadings The facts to Mr. as forth in Williams’s actions set Ms. pertaining Martin’s Petition for Sanctions were as true by Judge accepted in the order. Dawson also Reynolds May agreed with those that is the order findings subject June this appeal. In view trial court’s findings postjudgment plead- and motions were filed Mr. for an Williams ings improper pur- such as to cause it cannot be pose, unnecessary delay expense, said that the trial court exceeded its jurisdiction impose motions and other filed in the pleadings, papers Furthermore, Faulkner Circuit Court Mr. Williams. based 175-A filed these that Mr. Williams findings postjudgment plead-
upon I concur with the for an must and motions ings improper purpose, discretion when it that the trial court did not abuse its majority Rule 11 sanctions. imposed in this concurrence. J., joins
Glaze, *12 SUPPLEMENTAL OPINION ON DENIAL OF REHEARING
Therefore, is denied. appellant’s petition rehearing
175-B
dissent.
Smith,
JJ.,
Glaze,
Imber,
The
Tom Glaze,
Justice, dissenting.
supplemental opin-
that,
federal
Arkansas’s Rule
ion states
unlike
Rule
the amount of sanctions
that
no limit on
may
places
However,
Wilson,
imposed.
Brown,
&
P.A. v.
Crockett
this court decided the
Because sanction is to the generally pay opposing party’s fee,” “reasonable . . . expenses reasonable including attorney’s behavior, Fed. Civ. P. R. incurred because of the improper determination of this amount is the usual first step. The plain the rule the court language requires the independently analyze The injured party reasonableness the and requested expenses. fees has a to duty mitigate costs not or overstaffing, overresearching meritless claims. In overdiscovering clearly evaluating reason- ableness of the fee the district court should consider that request, claim what the sanctions. justifies frivolousness of the is
the very added.) (Emphasis above, the Wilson court reversed After forth setting court had Court because chancery Pulaski County Chancery this court the federal Rule standards adopted; failed to follow determined how the court nor did it in its order chancery specify Crockett sanction attorneys, imposed against why Brown, P.A., the circumstances. Accord- to & remanded the case the Wilson court permit parties ingly, on the issue court to solely chancery proceed amount of the sanction to or imposed, appropriateness Rule 11 standards Wilson the federal adopted employing decision. view, case is from this court’s
In this indistinguishable my it the trial court to and we should return Wilsonholding, apply standards we there. If we have the federal sanction adopted standards, decided not to follow the federal Rule guidelines we should so. say this dissent. JJ., join Smith,
Imber Mark v. ARKANSAS BOARD of Randall SHOCHET EXAMINERS
LAW