Evans v. Blankenship

286 S.W.3d 137, 374 Ark. 104, 2008 Ark. LEXIS 426
CourtSupreme Court of Arkansas
DecidedJune 26, 2008
Docket08-241
StatusPublished
Cited by6 cases

This text of 286 S.W.3d 137 (Evans v. Blankenship) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Evans v. Blankenship, 286 S.W.3d 137, 374 Ark. 104, 2008 Ark. LEXIS 426 (Ark. 2008).

Opinion

Donald L. Corbin, Justice.

Appellant James E. Evans, Jr., appeals the order of the Washington County Circuit Court transferring a suit for the recovery of attorney’s fees filed in that court to the Jefferson County Circuit Court. On appeal, Evans argues that the trial court erred in ruling that (1) the objection to venue was not waived, and (2) he was required to obtain the permission of the Jefferson County Circuit Court to proceed against Appellee Metropolitan National Bank in Washington County.

The record reflects that the present case stems from litigation that arose in the Jefferson County Circuit Court regarding matters involving two trusts, the Samuel Wirt Blankenship, Jr., Revocable Living Trust, and the Julia Cooke Blankenship Revocable Living Trust (hereinafter “the Trusts”). Because of Judith Cooke Blankenship’s decision declining to serve as Trustee of either Trust, Jo Ann Blankenship, Judith Overton, and Bob Blankenship were appointed as successor trustees. Thereafter, Jo Ann, Judith, and Julia 1 met with Evans about a possible cause of action against Bob Blankenship and Goat Shed Farms, Inc. Evans ultimately filed suit against Blankenship and his corporation in Jefferson County Circuit Court. As a result of the Jefferson County litigation, Metropolitan was appointed as receiver of the property held in the Trusts.

On January 17, 2007, Evans filed suit in Washington County Circuit Court to recover attorney’s fees in the amount of $223,051.70 that he claimed were owed to him as a result of his representation of the Trusts. Metropolitan filed a motion to dismiss, alleging that venue was improper in Washington County and arguing that Evans should have petitioned the Jefferson County Circuit Court, as it was the court that appointed Metropolitan as receiver.

Jo Ann filed an answer, motion to dismiss, and counterclaim on February 27, 2007. Therein, she asserted several affirmative defenses and moved for dismissal of Evans’s claim, pursuant to Ark. R. Civ. P. 12(b)(6), for failure to state facts upon which relief could be granted. Jo Ann also adopted Metropolitan’s motion to dismiss based on improper venue. In addition, Jo Ann filed a counterclaim against Evans alleging claims of negligence, breach of fiduciary duty, and breach of contract related to Evans’s representation of the Trusts in the Jefferson County proceeding.

Following Evans’s filing of his suit, Michael and Judith Overton filed a cross-claim against Metropolitan and Jo Ann, seeking to recover funds they claimed to have advanced to the Trusts prior to Metropolitan’s appointment as receiver.

A hearing on Metropolitan’s motion to dismiss was held on April 12, 2007. Metropolitan argued that Washington County was the improper venue where the Jefferson County Circuit Court had appointed it as the receiver. Evans countered that venue was proper in Washington County and that he was not required to obtain the Jefferson County Circuit Court’s permission before proceeding with his cause of action. At the conclusion of the hearing, the trial court announced from the bench that it was necessary for Evans to obtain approval from Jefferson County to proceed and that it would take Metropolitan’s motion to dismiss under advisement. A written order was subsequently entered of record on April 23, 2007, reflecting the trial court’s oral ruling, as well as denying Jo Ann’s motion to dismiss filed pursuant to Rule 12(b)(6).

Thereafter, the Jefferson County Circuit Court refused to grant Evans permission to proceed against Metropolitan in Washington County. A second hearing on Metropolitan’s motion to dismiss was heard on October 4, 2007. Metropolitan again argued that because the Jefferson County Circuit Court had appointed it as receiver, it must consent to the litigation. Evans announced that his argument regarding venue had changed slightly. In addition to arguing that it was unnecessary for the Jefferson County Circuit Court to grant permission to proceed, Evans also argued that Metropolitan had waived its venue argument by failing to raise the defense under Rule 12(b)(3) in its answer to the Overtons’ cross-complaint. At the conclusion of the hearing, the trial court announced that it was transferring the case to the circuit court in Jefferson County. The trial court then entered an order on December 13, 2007, granting Metropolitan’s motion. This appeal followed.

As a threshold matter, this court must determine whether the present appeal is properly before us. A review of the record reveals that the order appealed from is not a final, appealable order pursuant to Ark. R. App. P. — Civ. 2(a). Although the present matter is not a proper interlocutory appeal, Evans asserts that we may still address the merits of his appeal by treating it as a petition for writ of prohibition or certiorari. This court may address an allegation of improper venue by means of an extraordinary writ, see, e.g., Premium Aircraft Parts, LLC v. Circuit Court of Carroll County, 347 Ark. 977, 69 S.W.3d 849 (2002); here, however, Evans has failed to demonstrate that he is entitled to such a writ.

According to Evans and the Overtons, the trial court was without authority to transfer this case to Jefferson County because Metropolitan waived the defense of improper venue. Specifically, they argue that Metropolitan waived the venue issue when it filed an answer to the cross-complaint filed by the Overtons and such a waiver inured to the benefit of all parties and, as a result, this court should either issue a writ of prohibition preventing the Washington County Circuit Court from transferring the case or issue a writ of certiorari, directing that Washington County is the proper venue.

Prohibition is an extraordinary writ that is appropriate only when the trial court is wholly without jurisdiction. Manila Sch. Dist. No. 15 v. Wagner, 357 Ark. 20, 159 S.W.3d 285 (2004). The writ is appropriate only when there is no other remedy, such as an appeal, available. Id. Prohibition is a proper remedy when the jurisdiction of the trial court depends upon a legal rather than a factual question. Id. However, prohibition is never issued to prohibit a trial court from erroneously exercising its jurisdiction. Id.

Evans and the Overtons contend that prohibition is warranted in this case because there is no other remedy, such as an appeal, available and that prohibition is the proper method to obtain review of the issue of the trial court’s jurisdiction. Citing to Premium, 347 Ark. 977, 69 S.W.3d 849 (2002), Evans asserts that this court will grant a writ of prohibition on an issue of improper venue where there are no disputed facts regarding venue. In Centerpoint Energy, Inc. v. Miller County Circuit Court, 372 Ark. 343, 276 S.W.3d 231 (2008), we recently discussed the issuance of a writ of prohibition in a matter alleging improper venue. There, we stated:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Desoto Gathering Co. v. Ramsey
2016 Ark. 22 (Supreme Court of Arkansas, 2016)
Patsy Simmons Ltd. Partnership v. Finch
2010 Ark. 451 (Supreme Court of Arkansas, 2010)
Parker v. Crow
2010 Ark. 371 (Supreme Court of Arkansas, 2010)
Allen v. Circuit Court of Pulaski County, Ninth Division
2009 Ark. 167 (Supreme Court of Arkansas, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
286 S.W.3d 137, 374 Ark. 104, 2008 Ark. LEXIS 426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evans-v-blankenship-ark-2008.