Coombs v. Hot Springs Village Property Owners Ass'n

Andree LAYTON Roaf, Judge.

Kyle Coombs appeals from the circuit court’s order that denied his motion to nonsuit his tort action against the appellees, granted the appellees’ motion for summary judgment, and dismissed Coombs’ complaint with prejudice. On appeal, Coombs argues that the trial court erred in denying his motion for a voluntary nonsuit pursuant to Ark. R. Civ. P. 41 (a) because the motion was filed before the case was finally submitted. We agree that the trial court erred, and reverse and remand.

Coombs brought a toft action against appellees, in which he alleged claims of false arrest and imprisonment, malicious prosecution, tortious interference with a business relationship, abuse of process, and breach of contract. One month before the scheduled trial date, the appellees moved for summary judgment. Coombs moved for additional time to respond to the summary-judgment motion. Although the motion for time was not granted, Coombs failed to respond and, when he appeared at a scheduled pretrial hearing after the time for responding had expired, he was not prepared to defend the motion. The appellees requested that the court rule on the summary judgment motion. Coombs again requested an extension of time. The trial court, who was sitting on assignment from another county, granted a one-week extension of time with the stipulation that further pleadings must be in the judge’s hands by September 1, 2000, that they must be faxed to the judge’s office in Murfreesboro, and that appellees would have five days to respond. Shordy before the close of business on September 1, Coombs filed with the court clerk another motion for an extension of time or, in the alternative, a motion for a voluntary nonsuit. The trial judge refused to grant the additional time, and stated in a letter opinion dated September 9, 2000, that the motion for nonsuit was made after the court had ruled on the summary-judgment motion. The court entered summary judgment for appellees on September 15, 2000.

Coombs next filed a motion to set aside the summary judgment on September 25, 2000, in which he asserted that the judgment was entered prior to any final submission to the court. In a brief accompanying his motion, Coombs contended that he had been unable to speak to the court or his case coordinator because the court closed early on September 1, 2000, but that he had faxed the motion for additional time that included an alternative request for voluntary dismissal under Ark. R. Civ. P. 41 (a) to the court as agreed on that date.

The trial court advised the parties by letter that it had given Coombs specific instructions on how and when he was to respond to the motion for summary judgment, that Coombs had failed to carry out his instructions, and that the request for nonsuit came after the court had already made its decision. The court denied the motion to set aside the summary iudgment by order dated October 23, 2000.

Coombs argues on appeal that the trial court erred in denying his motion for a voluntary nonsuit under the provision of Ark. R. Civ. P. 41(a). He asserts that the motion came before the case had been submitted to the court and that he was entitled to an order dismissing the action as a matter of right.

Arkansas Rule of Civil Procedure 41(a), addressing voluntary dismissal, in pertinent part states:

Subject to the provisions of Rule 23(d) and Rule 66, an action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court. Although such a dismissal is a matter of right, it is effective only upon entry of a court order dismissing the action.

Both parties are in agreement relating to the standard for determining whether a plaintiff has a right to a nonsuit. “[T]he privilege to take a voluntary nonsuit is an absolute right prior to final submission to a jury or to the court sitting as a jury.” Wright v. Eddinger, 320 Ark. 151, 154, 894 S.W.2d 937 (1995); Duty v. Watkins, 298 Ark. 437, 768 S.W.2d 526 (1989); see also Beverly Enterprises-Arkansas, Inc. v. Hillier, 341 Ark. 1, 14 S.W.2d 487 (2000); Haller v. Haller, 234 Ark. 984, 356 S.W.2d 9 (1962); Mutual Benefit Health & Accident Ass’n v. Tilley, 174 Ark. 932, 298 S.W.2d 215 (1927). Therefore, if a voluntary nonsuit is sought before the final submission of the case, then the nonsuit is an absolute right. Wright v. Eddinger, supra. If the nonsuit is requested after final submission of the case, it is within the trial court’s discretion to grant or not grant it. Id.

Coombs filed his motion on the day his response to appellees’ motion for summary judgment was due, Friday, September 1, 2000. Coombs asserts that although the court had indicated that it wanted his response in time to make its decision on that Friday, the court granted appellees five days to reply to the response, and therefore, “[rjegardless of what the [appellant] filed, the [appellees] had requested and received the acknowledged right to reply within five days afterward. The matter simply was not submitted to the court for decision when it denied [appellant’s] motion for a voluntary nonsuit.” We agree.

A case is not finally submitted until the argument is closed and the case submitted to the jury or the court. Wright v. Eddinger, supra. See also Haller v. Haller, supra. In Wright v. Eddinger, supra, the principal point on appeal was whether under ARCP Rule 41(a) a trial court may grant a request for voluntary nonsuit where the trial court had announced its decision to grant the defendants’ motion for summary judgment. The trial court granted the nonsuit and the defendant appealed. Plaintiff contended on appeal that the argument had not been concluded because she had filed a supplemental memorandum. The supreme court did not agree, and opined that under appellee’s theory, “the losing party could simply submit a brief after the trial court’s ruling and contend the case was never finally submitted.” However, the court ultimately held that the trial court did not abuse its discretion in granting the nonsuit, and affirmed.

In Duty v. Watkins, 298 Ark. 437, 768 S.W.2d 526 (1989), a hearing was held on a motion to dismiss the complaint for failure to answer discovery requests. The plaintiff appeared and asked to take a nonsuit under ARCP Rule 41(a), which was denied by the trial court. On appeal, it was determined that plaintiffs request for nonsuit should have been granted. “The rule is clear that the privilege to take a nonsuit before final submission of a case is absolute.” Duty v. Watkins, supra, citing Haller v. Haller, supra. The court stated that the case had not been finally submitted because, “although the case had come to a hearing, the argument was not yet closed.” Id.

In the present case, Coombs contends that the argument had not been closed because he still had the right to file a response and appellees retained the right to submit a reply. The trial court instructed Coombs to submit his response by September 1, 2000. On September 1, 2000, appellant instead filed a motion for an extension and, in the alternative, moved for a nonsuit. The trial court did not address Coombs’s motion, and on September 8, 2000, Coombs filed for another extension and again asked, in the alternative, for a nonsuit. Finally, on September 9, 2000, the trial court sent a letter to counsel stating, “When I did not receive any information in response to the Defendant’s motion for summary judgment from [Coombs’s counsel] as requested and directed by the Court, I then contacted [appellees’ counsel] and informed him to prepare an Order with Findings of Fact and Conclusions of Law and forward it to me for my signature.” The trial court signed the order of dismissal on September 11, 2000, and it was entered on September 15, 2000..

We find this case distinguishable from Wright v. Eddinger, supra. While it is clear that a party cannot “simply submit a brief after the trial court’s ruling and contend the case was never actually submitted, unlike the situation in Wright, the trial court did not issue a final ruling. The trial court stated that it was “quite impressed” with the motion for summary judgment and that it intended to grant the motion unless Coombs could present something by Septmber 1 to “convince me otherwise;” however, at no point during the pretrial hearing did the trial court state that it was granting appellees’ motion for summary judgment on that date.

Instead, the trial court allowed Coombs until September 1 to respond, and Coombs, rather than responding to the merits of the summary judgment, moved for a nonsuit on that date. Under these circumstances the argument was not closed and the case had not been finally submitted to the court. Accordingly, the trial court erred in refusing to grant the motion. We reverse and remand for entry of an order dismissing the case without prejudice.

Hart and Jennings, JJ., agree. Baker, J., concurs. Pittman, J„ and Hays, S.J., dissent.