{ "id": 210167, "name": "OSCAR STILLEY v. Maurice HUBBS, Robert Garner; Patti Hill, In Her Official Capacity as County Clerk of Crawford County, Arkansas; Kenneth Chitwood, Bill Coleman, and Helen Campbell, in Their Official Capacities as County Election Commissioners of Crawford County, Arkansas", "name_abbreviation": "Stilley v. Hubbs", "decision_date": "2001-03-01", "docket_number": "00-1141", "first_page": "1", "last_page": "6-B", "citations": [ { "type": "official", "cite": "344 Ark. 1" }, { "type": "parallel", "cite": "40 S.W.3d 209" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "329 Ark. 320", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 236252 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/329/0320-01" ] }, { "cite": "944 S.W.2d 121", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 50363 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/328/0684-01" ] }, { "cite": "378 Ark. 684", "category": "reporters:state", "reporter": "Ark.", "year": 1997, "opinion_index": 0 }, { "cite": "326 Ark. 353", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 12022339 ], "weight": 5, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/326/0353-01" ] }, { "cite": "307 Ark. 134", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1902444 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/307/0134-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-22-309", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 4, "year": 1999, "pin_cites": [ { "page": "(c)" }, { "page": "(d)" } ], "opinion_index": 0 }, { "cite": "332 Ark. 548", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 377590 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/332/0548-01" ] }, { "cite": "Ark. Code Ann. \u00a7\u00a7 26-74-201", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 3, "pin_cites": [ { "page": "349" } ], "opinion_index": 0 }, { "cite": "342 Ark. 346", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1342390 ], "weight": 5, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/342/0346-01" ] } ], "analysis": { "cardinality": 632, "char_count": 14421, "ocr_confidence": 0.751, "pagerank": { "raw": 2.3027461577549005e-07, "percentile": 0.7875590430175659 }, "sha256": "58d56c1552d329a125357514d9ab77e07e00db8dbe1883e798366bf3984fc52b", "simhash": "1:ad5eaf5084fb8e90", "word_count": 2364 }, "last_updated": "2023-07-14T20:48:00.616095+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "OSCAR STILLEY v. Maurice HUBBS, Robert Garner; Patti Hill, In Her Official Capacity as County Clerk of Crawford County, Arkansas; Kenneth Chitwood, Bill Coleman, and Helen Campbell, in Their Official Capacities as County Election Commissioners of Crawford County, Arkansas" ], "opinions": [ { "text": "TOM GLAZE, Justice.\nWe assumed jurisdiction of this case because it involved an election issue of first impression. Sup. Ct. R. l-2(a)(4) and (b)(1). However, we recently decided the same issue in Stilley v. Henson, 342 Ark. 346, 28 S.W3d 274 (2000). In Henson, Sebastian County had a one percent sales and use tax, but, on August 7, 2000, Oscar Stilley filed an initiative petition with the Sebastian County Clerk to give the voters the opportunity to approve or disapprove an ordinance to reduce the existing tax to one-half of one percent. The Sebastian County Clerk certified the sufficiency of Mr. Stilley\u2019s petition for placement of the issue on the November 7, 2000, general election ballot. Harold Henson filed a petition for writ of mandamus in Sebastian County Circuit Court, challenging the validity of Stilley\u2019s initiative petition. The Sebastion County Circuit Court allowed Mr. Stilley to intervene to argue the validity of his initiative petition, but the circuit court rejected his argument and granted Henson a writ of mandamus on September 11, 2000. The circuit court, ordered the Sebastian County Clerk and the Sebastian County Board of Election Commissioners to refrain from placing Stilley\u2019s proposed measure on the ballot. In affirming the circuit court\u2019s decision on October 12, 2000, we held the initiative petition was facially invalid and failed to comply with Amendment 7 to the Arkansas Constitution because it was contrary to the specific enactment procedures mandated by Ark. Code Ann. \u00a7\u00a7 26-74-201, et seq. (Repl. 1997 and Supp. 1999), for levying or repealing a countywide sales and use tax. Id. at 349.\nAs he had done in Sebastian County, Stilley filed an identical initiative petition on August 7, 2000, with the Crawford County Clerk. The purpose of the petition was to allow the Crawford County voters to approve or disapprove a proposed ordinance which would reduce Crawford County\u2019s one percent sales and use tax to one-half of one percent. Maurice Hubbs and Robert Garner, Crawford County voters, petitioned the Crawford County Circuit Court to declare Stilley\u2019s initiative petition facially invalid and contrary to Amendment 7 to the Arkansas Constitution and existing state laws. After permitting Mr. Stilley to intervene in the action to defend the validity of his initiative petition, the Crawford County Circuit Court, on September 18, 2000, granted the relief requested by Hubbs and Garner, held Stilley\u2019s petition to be facially invalid, and commanded the Crawford County Clerk to decertify her original finding that the initiative petition was sufficient. Again, like he did in the Henson case in Sebastian County, Stilley appealed the Crawford County Court\u2019s decision to this court and, making the same arguments as he urged in Henson, he submits that the lower court\u2019s ruling that his initiative petition is facially invalid should be reversed. For the same reasons we set out in Henson in affirming the Sebastian County Circuit Court on this issue, we now affirm the Crawford County Circuit Court\u2019s decision.\nHubbs and Garner additionally requested and were awarded attorney\u2019s fees in the amount of $7,500.00 by the Crawford County Circuit Court; Stilley now contends the trial court erred in making such an award because no statute authorized it. Stilley cites the case of Arkansas Oklahoma Gas Company v. Waelder Oil & Gas, Inc., 332 Ark. 548, 966 S.W.2d 259 (1998), for the general rule in Arkansas that attorney\u2019s fees are not awarded unless expressly provided for by statute or rule.\nIn defending the award of attorney\u2019s fees, Hubbs and Garner argue Stilley did not make the objection or argument concerning the fees he now makes on appeal; therefore, he faded to preserve the issue for appellate review. Furthermore, they submit statutory authority does exist for a court to impose sanctions in the form of an attorney\u2019s fee up to $5,000.00 under Ark. Code Ann. \u00a7 16-22-309 (Repl. 1999), when the trial court finds there is a complete absence of a justiciable issue of either law or fact raised by the losing party or his attorney. Hubbs and Garner argue that Stilley could not in good faith have considered his Crawford County initiative petition a valid measure when he argued its validity in the Crawford County Circuit Court, when only one week earlier, the Sebastian County Circuit Court had ruled an almost identical initiative petition facially invalid. Because \u00a7 16-22-309 limits an award of attorney\u2019s fees to $5,000.00, they agree to accept a remittitur reducing the $7,500.00 awarded to them to $5,000.00.\nAs to the preservation issue raised by Hubbs and Garner, we note the record reflects that they requested attorney\u2019s fees without mentioning any statute or court rule, nor did they specify an amount. At the end of the parties\u2019 hearing, the circuit court generally concluded, \u201cAll right, the court\u2019s going to allow you [Hubbs and Garner] a fee of $7,500.00.\u201d Stilley made no response at the hearing, nor did he question the fee by posttrial motion after the trial court included its award of attorney\u2019s fees as a part of its final order.\nIn awarding attorney\u2019s fees under Ark. Code Ann. \u00a7 16-22-309(c) (Repl. 1999), the trial court may pronounce its decision on the fees at the conclusion of the trial or special proceeding without written motion and with or without presentation of additional evidence. The judgment for attorney\u2019s fees, if any, shall be included in the final judgment entered in the action. Id. On appeal, the question as to whether there was a complete absence of a justiciable issue shall be determined de novo on the record of the trial court alone. Ark. Code Ann. \u00a7 16-22-309(d) (Repl. 1999). In Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991), this court, in applying these statutory provisions, held that where the trial court awards attorney\u2019s fees in its final judgment, the party or attorney ordered to pay the fee may then question the validity of the award on appeal merely by requesting a de novo review of the question as to whether a justiciable issue existed below. Thus, even though Stilley never questioned the attorney\u2019s fee award at trial, we conclude he can question that award on appeal by a de novo showing that a justiciable issue existed in this case. Of course, if a justiciable issue is shown, the Crawford County Circuit Court erred in awarding attorney\u2019s fees. Our review reflects the court erred.\nTo point out the obvious, when Stilley pursued his defense of his proposed initiative measure in the Crawford County litigation after the Sebastian County Circuit Court ruling, our court had, as of that date, not yet considered or decided the issue presented in the Sebastian and Crawford County cases. Accordingly, Stilley appealed both decisions in an attempt to overturn those two courts\u2019 holdings. The Sebastian County case, Henson, reached us first, and in deciding that appeal, we were required to determine if a justiciable issue was involved. Our court, in determining whether a justiciable issue existed, relied on Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996), where this court said the following:\nIt has been said that the pertinent issue in cases such as this one \u201cis not the hypothetical question of whether the law, if passed, would be constitutionally defective; rather, it is the present and ripe question whether the measure\u2019s proponents are entitled to invoke the direct legislation process at all.\u201d\nOur court in Henson concluded that the justiciable issue to be decided was whether Stilley could reduce the existing countywide one percent sales and use tax by invoking the direct-initiative process. Of course, we answered the issue by saying no in Henson and, as stated hereinabove, that decision controls the identical issue presented in this appeal. Because the initiative-petition issue Stilley raised in the Sebastian County and Crawford County lawsuits involved a justiciable issue, we reverse the Crawford County Circuit Court\u2019s award of attorney\u2019s fees.\nWhether Stilley should have continued with part of the recent appeal is a separate question, which we now address as we are authorized to do under Rule 11 of the Rules of Appellate Procedure \u2014 Civil. Rule 11 in pertinent part provides that the supreme court or the court of appeals \u201cshall impose a sanction upon a party or attorney or both for taking or continuing a frivolous appeal.... For purposes of this rule, a frivolous appeal is one that has no reasonable legal or factual basis.\u201d Id. at (b). (Emphasis added.) Such sanctions \u201cmay include, but are not limited to, dismissal of the appeal; striking a brief, motion, or other paper; awarding actual costs and expenses, including reasonable attorney\u2019s fees; imposing a penalty payable to the court. ...\u201d Id. at (c). A party by motion may request sanctions be imposed or the appellate court may impose a sanction on its own initiative. Id. at (d). If the court on its own initiative determines that a sanction may be appropriate, the court shall order the party or attorney to show cause in writing why a sanction should not be imposed. Id.; compare Jones v. Jones, 378 Ark. 684, 944 S.W.2d 121 (1997).\nHere, as previously discussed, the case of Stilley v. Henson, supra, is controlling of the same issue in this appeal. That decision was handed down by this court on October 12, 2000; nonetheless, Mr. Stilley continued his Crawford County appeal. He filed his original brief on October 6, 2000, and Hubbs and Garner filed their responsive briefs on November 13, 2000, wherein they pointed to the Henson opinion as deciding this appeal. Instead of dismissing part of this appeal in light of the Henson decision, Stilley, in his reply brief filed on November 17, 2000, merely continued to disagree with Henson by saying it was \u201cfatally flawed.\u201d Stilley further stated in his reply brief that \u201cif this court chooses once again to ignore what cannot be refuted, obviously [he] is stuck with [the] rule of law\u201d stated in Henson.\nBecause of Mr. Stilley\u2019s refusal to accept this court\u2019s decision in Henson and his continued pursuit of this appeal even though the Henson decision \u2014 more than four months earlier \u2014 disposed of the identical issue in this appeal, we conclude that a sanction may be appropriate. Therefore, we order Mr. Stilley to show cause in writing why a sanction should not be imposed against him. Such writing shall be filed no later than seven days after the date of this opinion. If he files a writing, Hubbs and Garner may have four days to respond from the date of Stilley\u2019s writing.\nFor the reasons stated above, we affirm the Crawford County Circuit Court\u2019s decision to grant Hubb\u2019s and Garner\u2019s request for writ of mandamus, but reverse that court\u2019s award of attorney\u2019s fees. Concerning the collateral matter involving whether this court should impose a sanction under Rule 11, we will accept the parties\u2019 writings under the foregoing schedule, and will then issue a supplemental opinion deciding whether Rule 11 sanctions will be imposed.\nAppellant, pro se.\nFriday, Eldredge & Clark, by: R. Christopher Lawson, for appellees.\nSUPPLEMENTAL OPINION on DENIAL of REHEARING\nMarch 22, 2001\nPER CURIAM. In this appeal, we issued our opinion on March 1, 2000, wherein we affirmed the Crawford County Circuit Court. We did so because the central issue was identical to the one we already decided four months earlier in our decision in Stilley v. Henson, 342 Ark. 346, 28 S.W.3d 274 (2000). Upon pointing out that attorney Oscar Stilley had continued this appeal even though he was aware the Henson decision had considered and disposed of the identical issue presented in this appeal. We concluded sanctions under Rule 11 of the Rules of Appellate Procedure \u2014 Civil might be appropriate. Rule 11 provides the court shall impose a sanction upon a party or attorney or both for taking or continuing a frivolous appeal. We directed Mr. Stilley to show cause why a sanction should not be imposed against him, and we also allowed appellees to respond. Both Mr. Stilley and appellees have filed their writings.\nMr. Stilley asks court members to disqualify and, alternatively, requests we refrain from imposing any sanctions. We conclude that disqualification is clearly inappropriate in these circumstances and that sanctions must be imposed. In this case, the paramount issue was whether Mr. Stilley\u2019s initiative petition was faciaEy invalid and failed to comply with Amendment 7 to the Constitution because it was contrary to the specific enactment procedures mandated by Ark. Code Ann. \u00a7\u00a7 26-74-201, et seq. (Repl. 1997 and Supp. 1999) for levying or repealing a countywide sales and use tax. We answered this exact issue in Henson. While Mr. Stilley voices dissatisfaction with this decision, this court discussed and distinguished the arguments and citations of authorities presented by Mr. Stilley.\nMr. Stilley\u2019s responsive writing disavows any need for Rule 11 sanctions, but he continues to present the same arguments he made in Henson. We determine a fair sanction in these circumstances would be the award of a reasonable attorneys\u2019 fee to appellees for requiring appellees to go forward in defending this appeal. See Rule 11(c); see also Jones v. Jones, 329 Ark. 320, 947 S.W.2d 6 (1997). Therefore, we order that Mr. Stilley pay appellees the amount of $2,000.00, and do so within twenty days from the issuance of this supplemental opinion.\nThe time for filing a petition for rehearing in the Henson case ended on October 30, 2000. Stilley, however, filed no such petition, nor did he move to dismiss his Crawford County case.\nMr. Stilley also refers to this court\u2019s decisions in \u201cDramshop Act\u201d cases decided over the past years where the court eventually rejected earlier common law decisions. Those cases have no significance here where Mr. Stilley simply refused to accept this court\u2019s mandate in Henson which was issued only four months earlier.", "type": "majority", "author": "TOM GLAZE, Justice." } ], "attorneys": [ "Appellant, pro se.", "Friday, Eldredge & Clark, by: R. Christopher Lawson, for appellees.", "Appellant, pro se.", "Friday, Eldredge & Clark, by: R. Christopher Lawson, for appellees." ], "corrections": "", "head_matter": "OSCAR STILLEY v. Maurice HUBBS, Robert Garner; Patti Hill, In Her Official Capacity as County Clerk of Crawford County, Arkansas; Kenneth Chitwood, Bill Coleman, and Helen Campbell, in Their Official Capacities as County Election Commissioners of Crawford County, Arkansas\n00-1141\n40 S.W.3d 209\nSupreme Court of Arkansas\nOpinion delivered March 1, 2001\n[Petition for rehearing denied April 5, 2001.]\nAppellant, pro se.\nFriday, Eldredge & Clark, by: R. Christopher Lawson, for appellees." }, "file_name": "0001-01", "first_page_order": 27, "last_page_order": 34 }