Duell v. Bay

2015 Ark. App. 577

• Court: Court of Appeals of Arkansas
• Decided: October 21, 2015
• Docket: CV-15-73
• Status: Published

Opinion

Cite as 2015 Ark. App. 577

ARKANSAS COURT OF APPEALS DIVISION III No. CV-15-73

Opinion Delivered October 21, 2015

CHARLES DUELL APPEAL FROM THE WASHINGTON APPELLANT COUNTY CIRCUIT COURT [NO. CV-2013-1915-7] V.

HONORABLE DOUG MARTIN, JUDGE JOSEPH BAY APPELLEE REVERSED AND REMANDED

BART F. VIRDEN, Judge

Joseph Bay filed a lawsuit alleging defamation and false-light claims against deputy

prosecuting attorney for Washington County, Charles Duell. Duell filed a motion for

summary judgment on both claims, and also responded that he was entitled to statutory

immunity pursuant to Arkansas Code Annotated section 19-10-305(a). 1 In an order entered

on October 10, 2014, the circuit court denied summary judgment on the defamation and

false-light claims and also found that whether Duell was entitled to statutory immunity

under Arkansas Code Annotated section 19-10-305(a) was a question of fact for the jury.

This interlocutory appeal followed.

1 In the lawsuit, Bay also alleged several other claims that the court found were barred by res judicata. Those are not the subject of this appeal. Cite as 2015 Ark. App. 577

In November 2010, Joseph Bay was charged with Class D sexual indecency with a

child for allegedly exposing himself to his four-year-old daughter. The charge was nolle

prossed in March 2011. Shortly thereafter, Duell gave an interview to a Springdale Morning

News journalist, who then published an article entitled “Sexual Indecency Charge

Dropped,” which recounted some, but not all, of the facts relating to the dropping of the

charge. Bay asserts that Duell intentionally chose to relay only the facts that implied Bay’s

guilt, and that Duell omitted facts that exculpated him.

Duell raises several points on appeal. First, he asserts that the circuit court erred by

ruling that whether statutory immunity bars Bay’s lawsuit is a question of fact for the jury.

Duell also asserts that the undisputed facts show that his statements were true and show no

evidence of malice; therefore, he is entitled to statutory immunity. We agree with Duell’s

first point on appeal; therefore, we reverse and remand.

Arkansas affords a measure of immunity from suit to government employees.

Arkansas Code Annotated section 21-9-301(a) (Repl. 2004) provides as follows:

It is declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the state and any of their boards, commissions, agencies, authorities, or other governing bodies shall be immune from liability and from suit for damages except to the extent that they may be covered by liability insurance. As a general rule, the denial of a motion for summary judgment is neither reviewable

nor appealable. See Ark. River Educ. Servs. v. Modacure, 371 Ark. 466, 267 S.W.3d 595

(2007). However, that general rule does not apply when the refusal to grant a summary-

judgment motion has the effect of determining that the appellant is not entitled to immunity

2 Cite as 2015 Ark. App. 577

from suit, as the right of immunity from suit is effectively lost if a case is permitted to go to

trial. City of Fayetteville v. Romine, 373 Ark. 318, 320—21, 284 S.W.3d 10, 13 (2008). The

issue of whether a party is immune from suit in a summary-judgment procedure is purely a

question of law, and this court reviews that issue on appeal de novo. Early v. Crockett, 2014

Ark. 278, at 6, 436 S.W.3d 141, 146.

In its order, the circuit court found that “whether Defendant is entitled to statutory

immunity under Arkansas Code Annotated section 19-10-305(a) is a question of fact for the

jury.” Our case law clearly states that the issue of whether a party is entitled to statutory

immunity is a question of law; therefore the circuit court was clearly in error when it

characterized the issue as one of fact. We need not reach the remaining issues because the

circuit court must first decide as a matter of law whether Duell is entitled to immunity from

suit by the statute. The case is reversed and remanded for entry of an order consistent with

this opinion.

Reversed and remanded.

GLOVER and VAUGHT, JJ. agree.

Leslie Rutledge, Att’y Gen., by: NGA Mahfouz, Ass’t Att’y Gen., for appellant.

Byars & Hall, by: Joe D. Byars, Jr., for appellee.