{ "id": 6140030, "name": "Martha JONES v. John G. VOWELL, DDS, and Robbie Atkinson, DDS", "name_abbreviation": "Jones v. Vowell", "decision_date": "2007-06-06", "docket_number": "CA 06-1079", "first_page": "193", "last_page": "201", "citations": [ { "type": "official", "cite": "99 Ark. App. 193" }, { "type": "parallel", "cite": "258 S.W.3d 383" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "319 Ark. 280", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453624 ], "weight": 2, "year": 1995, "pin_cites": [ { "parenthetical": "refusing to consider for the first time on appeal the appellant's argument that an affidavit supporting the appellee's motion for summary judgment was improper" }, { "parenthetical": "refusing to consider for the first time on appeal the appellant's argument that an affidavit supporting the appellee's motion for summary judgment was improper" } ], "opinion_index": 0, "case_paths": [ "/ark/319/0280-01" ] }, { "cite": "353 Ark. 701", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1155487 ], "weight": 2, "year": 2003, "pin_cites": [ { "parenthetical": "refusing to consider on appeal certain arguments that the appellant had not made in her response to the appellees' motion to dismiss" }, { "parenthetical": "refusing to consider on appeal certain arguments that the appellant had not made in her response to the appellees' motion to dismiss" } ], "opinion_index": 0, "case_paths": [ "/ark/353/0701-01" ] }, { "cite": "355 Ark. 97", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 2651070 ], "weight": 2, "year": 2003, "pin_cites": [ { "parenthetical": "refusing to consider a new argument on appeal as to why summary judgment was improper" }, { "parenthetical": "refusing to consider a new argument on appeal as to why summary judgment was improper" } ], "opinion_index": 0, "case_paths": [ "/ark/355/0097-01" ] }, { "cite": "43 Ark. App. 7", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136017 ], "weight": 2, "year": 1993, "pin_cites": [ { "parenthetical": "holding that the burden is on the appellant to bring up a record sufficient to demonstrate error" }, { "parenthetical": "holding that the burden is on the appellant to bring up a record sufficient to demonstrate error" } ], "opinion_index": 0, "case_paths": [ "/ark-app/43/0007-01" ] }, { "cite": "84 Ark. App. 241", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139849 ], "weight": 2, "year": 2003, "pin_cites": [ { "parenthetical": "recognizing that discovery sanctions such as dismissal are extraordinary and should be used sparingly, usually in the case of flagrant violations" }, { "parenthetical": "recognizing that discovery sanctions such as dismissal are extraordinary and should be used sparingly, usually in the case of flagrant violations" } ], "opinion_index": 0, "case_paths": [ "/ark-app/84/0241-01" ] }, { "cite": "224 Ark. 499", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1646629 ], "weight": 2, "year": 1955, "pin_cites": [ { "parenthetical": "acknowledging, in a case decided prior to Rule 41(b), the value of permitting a party to explain the reason for any delay in prosecution" }, { "parenthetical": "acknowledging, in a case decided prior to Rule 41(b), the value of permitting a party to explain the reason for any delay in prosecution" } ], "opinion_index": 0, "case_paths": [ "/ark/224/0499-01" ] }, { "cite": "158 S.W.3d 123", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 5370065, 5367260 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/ark/356/0688-01", "/ark/356/0665-01" ] }, { "cite": "356 Ark. 665", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5367260 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/ark/356/0665-01" ] }, { "cite": "321 U.S. 233", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 302135 ], "pin_cites": [ { "page": "246" } ], "opinion_index": 0, "case_paths": [ "/us/321/0233-01" ] }, { "cite": "265 Ark. 914", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1664782 ], "weight": 2, "year": 1979, "pin_cites": [ { "parenthetical": "dismissing where a case remained pending over thirteen years with only intermittent activity" }, { "parenthetical": "dismissing where a case remained pending over thirteen years with only intermittent activity" } ], "opinion_index": 0, "case_paths": [ "/ark/265/0914-01" ] }, { "cite": "310 Ark. 605", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898875 ], "weight": 2, "year": 1992, "pin_cites": [ { "parenthetical": "dismissing where CNA disobeyed the court's order to substitute itself as the real party in interest within ten days" }, { "parenthetical": "dismissing where CNA disobeyed the court's order to substitute itself as the real party in interest within ten days" } ], "opinion_index": 0, "case_paths": [ "/ark/310/0605-01" ] }, { "cite": "928 S.W.3d 330", "category": "reporters:state_regional", "reporter": "S.W.3d", "year": 1996, "pin_cites": [ { "parenthetical": "dismissing the plaintiffs' complaint when they failed to appear for a jury trial that they knew had been scheduled" } ], "opinion_index": 0 }, { "cite": "325 Ark. 445", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369224 ], "year": 1996, "pin_cites": [ { "parenthetical": "dismissing the plaintiffs' complaint when they failed to appear for a jury trial that they knew had been scheduled" } ], "opinion_index": 0, "case_paths": [ "/ark/325/0445-01" ] }, { "cite": "370 U.S. 626", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6169566 ], "weight": 2, "year": 1962, "pin_cites": [ { "parenthetical": "upholding dismissal where the petitioner's counsel failed to attend a pretrial conference that he knew about but which, he contended, he was too busy to attend" }, { "page": "632", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/us/370/0626-01" ] }, { "cite": "275 Ark. 249", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1753645 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "251" }, { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/ark/275/0249-01" ] }, { "cite": "331 Ark. 426", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604753 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/331/0426-01" ] } ], "analysis": { "cardinality": 693, "char_count": 13444, "ocr_confidence": 0.768, "pagerank": { "raw": 7.181100842601303e-08, "percentile": 0.4299451435199504 }, "sha256": "2235add5964ba35d07842990865173a2dd1588aabdd6635cae641df51f0ea67f", "simhash": "1:c6c88d0e26029d97", "word_count": 2250 }, "last_updated": "2023-07-14T20:09:21.655097+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Bird and Vaught, JJ., agree." ], "parties": [ "Martha JONES v. John G. VOWELL, DDS, and Robbie Atkinson, DDS" ], "opinions": [ { "text": "Karen R. Baker, Judge.\nAppellant Martha Jones appeals from the dismissal of her dental-malpractice case against appellees Drs. John G. Vowell and Robbie Atkinson. We reverse and remand.\nAppellant first sued appellees on March 7, 2001. However, she took virtually no action on her case, and it was dismissed without prejudice on March 15, 2005, for lack of prosecution. On May 12, 2005, appellant refiled her case.\nOn June 2, 2006, a hearing was held in appellant\u2019s refiled case. The subject of the hearing is not stated in the record, and neither appellant nor her counsel were present at the hearing. When the case was called and appellant and her attorney were not present, court personnel \u201ccalled the hall\u201d three times, with no response. The trial judge then stated: \u201cOkay, hall sounded, no response. Case dismissed.\u201d On June 8, 2006, an order of dismissal was entered, stating:\nOn this date, Plaintiff and Defendant in the above styled action came on for hearing. The hall was sounded and the plaintiff failed to respond. Pursuant to Rule 41(b) of the Arkansas Rules of Civil Procedure, this case is hereby DISMISSED WITH PREJUDICE.\nAppellant now appeals from that order and argues that the dismissal was in error for the following reasons: 1) she received no notice of the hearing and thus her due-process rights were violated; 2) the trial judge failed to inquire as to whether she received notice; 3) the trial judge did not notify her, prior to the dismissal, that he intended to dismiss her complaint, as required by Rule 41(b); 4) she was, at the time of the dismissal, actively prosecuting her case. Our standard of review is for an abuse of discretion. Wolford v. St. Paul Fire & Marine Ins. Co., 331 Ark. 426, 961 S.W.2d 743 (1998).\nUpon reviewing the parties\u2019 briefs and arguments, we agree with appellant that the trial court abused its discretion and that the dismissal of her case violated due process as well as Ark. R. Civ. P. 41(b). Rule 41(b) permits involuntary dismissal \u201cin any case in which there has been a failure of the plaintiff to comply with these rules or any order of court or in which there has been no action shown on the record for the past 12 months.\u201d The availability of dismissal for \u201cinaction\u201d or failure to prosecute is a tool for trial courts to dispose of cases \u201cfiled and forgotten.\u201d Prof'l Adjustment Bureau, Inc. v. Strong, 275 Ark. 249, 251, 629 S.W.2d 284, 285 (1982). However, appellant\u2019s case did not fall into that category. During the approximately twelve-month period between the filing of her complaint and the dismissal, appellant propounded discovery, responded to motions, answered discovery (although, according to appellees, in an unsatisfactory manner), and sat for a deposition (which was discontinued part-way through). In fact, her last activity occurred a little more than two weeks before the hearing when she responded to appellee Vowell\u2019s motion to compel and filed her own motion to compel. Given these facts, it cannot be said that there was \u201cno action shown on the record for the past 12 months.\u201d See Ark. R. Civ. P. 41(b).\nRule 41(b) also provides that \u201cthe court shall cause notice to be mailed to the attorneys of record, and to any party not represented by an attorney, that the case will be dismissed for want of prosecution unless on a stated day application is made, upon a showing of good cause, to continue the case on the court\u2019s docket.\u201d No such notice was sent here. Appellees, cite cases recognizing a court\u2019s inherent power to dismiss for failure to appear or failure to prosecute without prior notice of dismissal, but those cases are distinguishable from the case at bar. See Link v. Wabash R.R. Co., 370 U.S. 626 (1962) (upholding dismissal where the petitioner\u2019s counsel failed to attend a pretrial conference that he knew about but which, he contended, he was too busy to attend); Florence v. Taylor, 325 Ark. 445, 928 S.W.3d 330 (1996) (dismissing the plaintiffs\u2019 complaint when they failed to appear for a jury trial that they knew had been scheduled); Insurance from CNA v. Keene Corp., 310 Ark. 605, 839 S.W.2d 199 (1992) (dismissing where CNA disobeyed the court\u2019s order to substitute itself as the real party in interest within ten days); and Gordon v. Wellman, 265 Ark. 914, 582 S.W.2d 22 (1979) (dismissing where a case remained pending over thirteen years with only intermittent activity).\nUnlike the long period of inactivity in Gordon, which the court characterized as a \u201cvirtual hibernation,\u201d this case had been pending for approximately one year at the time of dismissal, with ongoing activity in the case. And, unlike the willfully disobedient behavior or outright disregard displayed by the parties in Link, Florence, and CNA, the appellant in this case did not pointedly disobey a court order or refuse to attend a hearing about which she had unquestionably been notified. As the Supreme Court recognized in Link, the circumstances of a case should be considered in determining whether to provide advance notice that dismissal is being considered:\nIt is true, of course, that \u201cthe fundamental requirement of due process is an opportunity to be heard upon such notice and proceedings as are adequate to safeguard the right for which the constitutional protection is invoked.\u201d Anderson National Bank v. Luckett, 321 U.S. 233, 246. But this does not mean that every order entered without notice and a preliminary adversary hearing offends due process. The adequacy of notice and hearing respecting proceedings that may affect a party\u2019s rights turns, to a considerable extent, on the knowledge which the circumstances show such party may be taken to have of the consequences of his own conduct. The circumstances here were such as to dispense with the necessity for advance notice and hearing.\n370 U.S. at 632 (emphasis added). The circumstances in the present case involve a dismissal based upon appellant\u2019s failure to attend a hearing. Further, the record does not indicate that the trial court conducted a review of the record or made an inquiry, prior to dismissal, to determine whether appellant had notice, as was done in Gore v. Heartland Community Bank, 356 Ark. 665, 158 S.W.3d 123 (2004). We therefore conclude that this case called for the trial court to comply with Rule 41(b) and give notice of its intention to dismiss. See also S. W. Water Co., Inc. v. Merritt, 224 Ark. 499, 275 S.W.2d 18 (1955) (acknowledging, in a case decided prior to Rule 41(b), the value of permitting a party to explain the reason for any delay in prosecution).\nAppellees urge us however, to consider the possibility that appellant\u2019s case was not dismissed under Rule 41(b) for failure to prosecute but was instead dismissed for failure to comply with discovery rules. See Ark. R. Civ. P. 37(d) (2007) (listing dismissal among several possible sanctions for certain discovery violations). Clearly, there were pending discovery issues to be resolved in this case. At the time of the hearing, appellee Vowell had filed a motion to compel in which he sought from appellant answers to requests for production and additional answers to interrogatories. Vowell also noted in his motion that both he and Atkinson had attempted, by letter, to obtain further information from appellant about her case, to no avail. The motion requested costs and fees as sanctions, the entry of an order to compel, and, if the order was not complied with, dismissal. However, we see no indication in the court\u2019s statements at the hearing or in the court\u2019s order that discovery violations were contemplated as a basis for dismissal. Nor do we believe it is our province to conclude, without benefit of a clear ruling by the trial court, that the \u201cextraordinary\u201d discovery sanction of dismissal was warranted in this case. See Coulson Oil Co. v. Tully, 84 Ark. App. 241, 139 S.W.3d 158 (2003) (recognizing that discovery sanctions such as dismissal are extraordinary and should be used sparingly, usually in the case of flagrant violations). We therefore decline to adopt this reasoning as justification for the court\u2019s summary dismissal.\nWe next consider the possibility that the trial court dismissed appellant\u2019s case simply because of her failure to appear at the hearing. A trial court has the power to dismiss a case when a party fails to appear, Florence, supra. However, unlike the plaintiff in Florence, who failed to appear for a trial that her attorney indisputedly knew had been scheduled, this appellant asserts that neither she nor her attorney received notice of the hearing. The record includes no document or letter showing that notice of the hearing was sent to appellant or her attorney, despite appellant\u2019s having designated as the record on appeal \u201call of the Circuit Court record, and the transcript of the hearing held on June 6 [sic], 2006.\u201d It therefore appears on this record that appellant\u2019s case was dismissed based on her failure to attend a hearing of which she had no notice, which violates one of the basic tenets of due process. See Florence, supra.\nOn this point, appellees argue that appellant\u2019s claim of lack of notice is procedurally barred because she has not produced a record showing that she, in fact, did not receive notice. See generally Jones v. Jones, 43 Ark. App. 7, 858 S.W.2d 130 (1993) (holding that the burden is on the appellant to bring up a record sufficient to demonstrate error). However, the difficulty faced by appellant in this particular situation is obvious, i.e., proving that something does not exist. We believe that, under the circumstances, appellant did what she was required to do to demonstrate error to this court. She ordered the entire circuit court record, which does not show that notice - was sent, and she ordered a transcript of the hearing, which likewise offers no indication that notice was sent.\nIt is further argued by appellees that appellant was not prejudiced by any lack of notice because she had responded in writing to Vowell\u2019s motions. This argument misses the point. Appellant is not complaining that she never had the opportunity to respond to Vowell\u2019s motions; rather, her complaint is that her case was summarily dismissed on the erroneous premise that she intentionally failed to appear or failed to prosecute her case. The prejudice that she suffered was dismissal of her case, not that she was precluded from addressing Vowell\u2019s arguments.\nAppellees also claim that appellant is raising her notice argument for the first time on appeal. See, e.g., Parker v. Perry, 355 Ark. 97, 131 S.W.3d 338 (2003) (refusing to consider a new argument on appeal as to why summary judgment was improper); Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003) (refusing to consider on appeal certain arguments that the appellant had not made in her response to the appellees\u2019 motion to dismiss); Oglesby v. Baptist Med. Sys., 319 Ark. 280, 891 S.W.2d 48 (1995) (refusing to consider for the first time on appeal the appellant\u2019s argument that an affidavit supporting the appellee\u2019s motion for summary judgment was improper). However, unlike the appellants in those cases, the appellant here had no opportunity, prior to entry of the court\u2019s ruling, to assert her argument. The record supports appellant\u2019s contention that she did not know until after the entry of the final order that her case had been dismissed. She therefore had no reason, prior to the dismissal of her case, to apprise the trial court of any argument regarding lack of notice. As for appellees\u2019 contention that appellant should have filed a postjudgment motion to inform the court that she had not received notice, we do not believe that such a motion was required. Had the trial court inquired, before dismissing the case, as to whether appellant had been notified of the hearing, or had the court notified appellant that it intended to dismiss her case, as contemplated by Rule 41(b), the question of whether appellant received notice of the hearing would have been before the court. In other words, the trial court had the means to determine the situation regarding notice or lack thereof but instead dismissed the case without inquiry. Although appellant might have explained her circumstances in a postjudgment motion, nothing required that she do so.\nFor the reasons stated, the trial court\u2019s order of dismissal is reversed and remanded.\nBird and Vaught, JJ., agree.\nAppellant unquestionably failed to actively prosecute her case in her first filing, which was ultimately dismissed, but we do not consider her lack of activity in that case as relevant to whether she actively prosecuted this case. We note that appellees\u2019 counsel agreed during oral argument that appellant\u2019s dilatory conduct in the first case was \u201cwater under the bridge.\u201d\nIn Gore, supra, which involved an appellant who claimed he had not received notice of a hearing, the appellee supplemented the record to include a copy of a hearing notice sent to the appellant. Appellees in this case supplemented the record but included no notice of the hearing in their supplemented record.", "type": "majority", "author": "Karen R. Baker, Judge." } ], "attorneys": [ "W. Bruce Leasure, for appellant.", "Friday, Eldredge & Clark, LLP, by: Alan G. Bryan, for appellee John G. Vowell, DDS.", "Angel Law Firm, PLLC, by: Richard L. Angel, for appellee Robbie R. Atkinson, DDS." ], "corrections": "", "head_matter": "Martha JONES v. John G. VOWELL, DDS, and Robbie Atkinson, DDS\nCA 06-1079\n258 S.W.3d 383\nCourt of Appeals of Arkansas\nOpinion delivered June 6, 2007\nW. Bruce Leasure, for appellant.\nFriday, Eldredge & Clark, LLP, by: Alan G. Bryan, for appellee John G. Vowell, DDS.\nAngel Law Firm, PLLC, by: Richard L. Angel, for appellee Robbie R. Atkinson, DDS." }, "file_name": "0193-01", "first_page_order": 229, "last_page_order": 237 }