Estate of Baker v. Davis , 79 Ark. App. 188 ( 2002 )

Josephine Linker Hart, Judge.

On December 30, 2000, J a decree was filed by the Searcy County Chancery Court awarding appellant a judgment against appellee, Gary Davis, in a contract dispute. Appellee filed a motion for new trial, and over appellant’s objection, a hearing was held on the motion in Faulkner County. In an order of dismissal filed February 23, 2001, the chancellor granted the motion, vacated the original decree, and dismissed appellant’s complaint without prejudice. Appellant brings this appeal, not challenging the merits of the chancellor’s decision to order dismissal, but instead arguing that, pursuant to Ark. Code Ann. § 16-13-317 (Repl. 1999), the hearing on the motion could not be held in Faulkner County absent appellant’s agreement because the motion constituted a “contested case . . . tried outside the county of venue of the case.” We agree and reverse and remand.

Because the chancellor who issued the initial decree was elected to a judgeship on our court, the motion for a new trial was presided over by a different chancellor. At the hearing, appellant’s counsel noted that while the case had been tried in Searcy County, the motion was being heard in Faulkner County, a county in the same judicial district as Searcy County. Appellant’s counsel stated that they were present at the request of appellee and not by agreement and that they did not agree to the hearing because it was outside the venue of Searcy County. Appellant’s counsel further noted that neither the court file nor the docket was available in Faulkner County.¹ Appellee’s counsel responded by saying that he was not sure how appellant would be prejudiced by having the hearing in Faulkner County. The hearing was nevertheless held, and after the hearing, the chancellor granted the motion for new trial, vacated the decree, and dismissed appellant’s complaint without prejudice. Appellant challenges on appeal the propriety of the chancellor’s holding of the hearing in Faulkner County.

As an initial matter, we must decide whether this issue was preserved for appellate review. Appellee argues that the issue was not preserved because appellant failed to obtain a ruling on the objection to the hearing. The Arkansas Supreme Court has stated that we “do not have a plain error rule, but instead have consistently held that the burden of obtaining a ruling is upon the movant, and unresolved questions and objections are waived and may not be relied upon on appeal.” Aaron v. State, 319 Ark. 320, 321, 891 S.W.2d 364, 365 (1995). Because we do not have a plain error rule, “any error argued on appeal must have first been directed to the trial court’s attention in some appropriate manner, so that court had an opportunity to address the issue.” Stacks v. Jones, 323 Ark. 643, 646-47, 916 S.W.2d 120, 122 (1996).

We conclude that the chancellor’s continuation of the hearing, after appellant objected to the propriety of the hearing, constituted a ruling on the objection. The issue was directed to the chancellor’s attention when appellant objected to the hearing, and the objection was resolved by the chancellor’s holding of the hearing. This case resembles McMahan v. Berry, 319 Ark. 88, 93-94, 890 S.W.2d 242, 246 (1994), in which the appellant objected to certain jury instructions, and without specifically ruling on the appellant’s objection, the court gave the instructions to the jury. The Arkansas Supreme Court held that “[t]he giving of the instruction effectively became the ruling. . . .” McMahan, 319 Ark. at 94, 890 S.W.2d at 246. Similarly, in the case at bar, appellant objected to the holding of the hearing, and the chancellor’s holding of the hearing effectively became the ruling. Thus, we may properly address the merits of .appellant’s argument.

On the merits, at issue is the interpretation of Ark. Code Ann. § 16-13-317 (Repl. 1-999), which provides as follows:

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 be 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.

In interpreting this statute, the Arkansas Supreme Court, in Gibbons v. Bradley, 239 Ark. 816, 394 S.W.2d 489 (1965), concluded that while an order pendente lite was final and subject to appeal, it was not a “contested case,” noting that it was a “temporary order incidental to a final hearing on the merits of a case.” Gibbons, 239 Ark. at 817, 394 S.W.2d at 490. The court further stated that the purpose of the statute is to “facilitate and expedite matters by authorizing the chancellor, without agreement of the parties, to render appropriate orders with respect to the pending case.” Gibbons, 239 Ark. at 818, 394 S.W.2d at 491. See also Henderson v. Dudley, 264 Ark. 697, 712-13, 574 S.W.2d 568, 667 (1978) (affirming the chancellor’s issuance of an order to show cause issued while the chancellor was sitting outside the county in which the case was pending).

Appellant contends that the chancellor’s hearing of the motion for new trial amounted to a “contested case” being “tried outside the county of the venue of the case,” requiring the consent of the interested parties. Although much of the extensive hearing on the motion for new trial was not abstracted, we can tell from the appended order of dismissal that, after reviewing the case file and considering the arguments of the parties, the chancellor determined that appellee was not subject to the personal jurisdiction of the court. This was a ruling on a substantive issue already extensively litigated and decided in appellant’s favor in the earlier proceedings. The chancellor then vacated the original decree and dismissed appellant’s complaint without prejudice.

In contrast to Gibbons, this decision cannot be fairly characterized as an order made to “facilitate and expedite matters” with respect to a “pending case.” The chancellor retried² the issue of personal jurisdiction, and after disagreeing with the previous chancellor’s disposition on the merits, he did not just grant a new trial, but also dismissed appellant’s complaint. Thus, the chancellor’s vacation of the earlier decree and dismissal of the complaint was a final disposition of the merits. Consequently, in the absence of clear authority to the contrary, we conclude that this was a “contested case” which was “tried outside the county of the venue of the case.” And because the change of venue was made without, as required by the statute, the consent of the parties, the change of venue was improper, and the case must be reversed and remanded for a hearing on the motion for new trial in the proper venue.³

Reversed and remanded.

Griffen, Neal, Crabtree, and Roaf, JJ., agree. Stroud, C.J., and Bird, J., agree in part and dissent in part. Jennings and Vaught, JJ., dissent.

1 Though not abstracted, we note that the chancellor responded, “All righty. All righty.”

2 The Arkansas Supreme Court has cited other sources defining a “trial” as “the judicial investigation and determination of die issues between the parties to an action.” Black v. Jones, 208 Ark. 1011, 1015, 188 S.W.2d 626, 628 (1945).

3 Compare Chappell v. McMillan, 296 Ark. 317, 756 S.W.2d 895 (1988) (holding that to effect a change of venue there must be compliance with the venue statute).