Kerry Baker, as the Administrator of the Estate of James Luke Baker; And Kerry Baker, Individually v. Bryan Adams; Skylar Wilson; Travis Jones; Carson Cook; Karla Cook; Prairie Wings South, LLC; Austin Tate; John Tate; Prairie Wings Lodge, LLC; Christie Adams; Mary Tate; Reliance Health Care, Inc.; Brandon Adams; And Todd Ross

2024 Ark. App. 577

• Court: Court of Appeals of Arkansas
• Decided: November 20, 2024
• Status: Published

Opinion

Cite as 2024 Ark. App. 577 ARKANSAS COURT OF APPEALS DIVISION III No. CV-22-102

KERRY BAKER, AS THE Opinion Delivered November 20, 2024

ADMINISTRATOR OF THE ESTATE APPEAL FROM THE JEFFERSON OF JAMES LUKE BAKER; AND KERRY COUNTY CIRCUIT COURT BAKER, INDIVIDUALLY [NO. 35CV-18-1077] APPELLANTS

HONORABLE ALEX V. GUYNN, V. JUDGE

BRYAN ADAMS; SKYLAR WILSON; TRAVIS JONES; CARSON COOK; KARLA COOK; PRAIRIE WINGS SOUTH, LLC; AUSTIN TATE; JOHN TATE; PRAIRIE WINGS LODGE, LLC; CHRISTIE ADAMS; MARY TATE; RELIANCE HEALTH CARE, INC.; BRANDON ADAMS; AND TODD ROSS APPELLEES REVERSED AND REMANDED

N. MARK KLAPPENBACH, Judge

Although this case is based on a tragic factual situation, the issue before the court is

procedural—whether a plaintiff’s right to dismiss a case pursuant to Arkansas Rule of Civil

Procedure 41(a) is absolute. We find that it is and reverse and remand.

I. Background

A. Facts and Early Filings On October 24, 2015, Luke Baker died by a gunshot wound to his head at the Prairie

Wings Duck Club. He was twenty years old. Luke was survived by his father, Kerry Baker;

his mother, Gena Downey Baker; and his sister, Savannah Baker Case. Luke’s friend, Skylar

Wilson, was present in the room at the time of the gunshot, and two other friends, Carson

Cook and Austin Tate, were staying at Prairie Wings when it happened. The death certificate

issued the day of Luke’s death listed the cause as a self-inflicted “GSW [gunshot wound]

head.” The Jefferson County Sheriff’s Office conducted an investigation regarding Luke’s

death, but it was closed without any finding of criminal activity.

Three years later, on October 23, 2018, Luke’s surviving immediate family members

and his estate (the Estate) brought a wrongful-death lawsuit against all of the men present on

the night of Luke’s death, those men’s parents, Prairie Wings, the owners of Prairie Wings,

Travis Jones, and Reliance Health Care, Inc. The complaint alleged claims for wrongful

death, premises liability, host liability, liability under Arkansas Code Annotated section 16-

118-107 (Repl. 2016) against any person who committed certain felonies, intentional

infliction of emotional distress, and punitive damages.

On January 4, 2019, the plaintiffs filed an amended complaint that set out more

specific allegations against each of the defendants. The amended complaint alleged claims

of wrongful death against Skylar Wilson, negligence against all defendants, premises liability

against Prairie Wings and its owners, civil liability for acts committed in the course of a

felony against all defendants, and intentional infliction of emotional distress against all

defendants.

2 Throughout the case, the plaintiffs1 were represented by different attorneys. At the

beginning of the lawsuit, Kerry and the Estate were represented by Greg Stephens, and Gena

and Savannah were represented by Marion Humphrey. A few months later, on December

11, 2018, Luther Sutter entered an appearance for Gena, and Sutter’s partner, Lucien

Gillham, also represented Gena. On June 10, 2019, Eric Buchanan entered an appearance

for Kerry and the Estate, and Stephens withdrew from representing those parties on July 26,

2019. Finally, on February 6, 2020, Sutter and his law firm withdrew from their

representation of Gena due to a conflict of interest. This left Gena as the only pro se

plaintiff.

B. Motion for Voluntary Nonsuit

On February 18, 2020, all plaintiffs except Gena (who was pro se by this point) moved

to dismiss the amended complaint without prejudice under Arkansas Rule of Civil

Procedure 41(a). The defendants responded to that motion, arguing that dismissal was

improper at that time because certain evidence that the circuit court had ordered to be

produced had not yet been given to the defendants. The response alleged that the motion

to dismiss came after “more lies and misconduct” were exposed at the deposition of the

plaintiffs’ expert. At a hearing on July 27, the circuit court orally denied the plaintiffs’ Rule

41(a) motion but never entered a written order.

1 Only Kerry and the Estate have appealed, but the history of all plaintiffs and their representation is relevant.

3 On August 17, all plaintiffs except Gena renewed the motion to dismiss without

prejudice under Rule 41(a). The defendants responded, arguing that the circuit court should

not rule until two discovery disputes were resolved.

C. Motion to Dismiss with Prejudice Due to Alleged Fraud

Months later, on April 13, 2021, the defendants filed a renewed motion to dismiss

the amended complaint with prejudice due to alleged misconduct and fraud by Kerry and

various plaintiffs’ attorneys.2 The motion was supported by eighty-one exhibits and alleged

misconduct involving, among other things, the preparation of fraudulent paperwork to

facilitate the exhumation of Luke’s body, misrepresentations made to the Jefferson County

Sheriff’s Office in order to have the investigation reopened, the concealment of evidence

related to the cause of death, attempts to influence expert witnesses and public officials

regarding amendments to the death certificate, spoliation of evidence, and

misrepresentations to the circuit court.

D. Hearing and Order on Motions to Dismiss

The circuit court held a hearing on both motions to dismiss on June 2, 2021. At the

hearing, the defendants presented a lengthy argument summarizing the allegations of fraud

and misconduct. Although the plaintiffs’ attorneys denied certain contentions against

themselves personally, they primarily relied on the argument that they were entitled to

2 The pleading is titled a “renewed” motion to dismiss because the same defendants had filed a previous motion to dismiss that was denied and that is not relevant to this appeal. The Tate defendants joined the renewed motion the following day.

4 dismiss their claims under Rule 41 without prejudice. 3 The circuit court first stated that it

would dismiss the amended complaint with prejudice or hold a hearing pursuant to Arkansas

Rule of Civil Procedure 11 to “dig a whole lot deeper and find out what’s going on.” Later

in the hearing, the circuit court stated that it did not believe that a Rule 11 hearing was

necessary. The plaintiffs objected to the dismissal with prejudice and did not address the

possibility of a Rule 11 hearing. The circuit court went on to state that it believed certain

attorneys for the plaintiffs had committed “fraud and mistruth”; and because it believed

“there is a miscarriage of justice going on here,” it stated that it would grant the defendants’

motion to dismiss with prejudice.

On June 22, the circuit court entered an order granting the defendants’ motion and

dismissing the case with prejudice, finding that Rule 41(a)(1) did not act as “a bar from a

Court exercising its inherent authority by dismissing a case with prejudice” when “abuse of

process, fraud, misrepresentations, spoliation, and other misconduct resulting in a

miscarriage of justice occurred.” The circuit court further stated that the plaintiffs’ filings

“may” be in violation of Rule 11 and that the plaintiffs chose not to address the offer of a

Rule 11 hearing. The circuit court went on to deny as moot all motions filed prior to the

hearing, which included the appellants’ motion for a voluntary nonsuit under Rule 41.

Kerry and the Estate (the “appellants”) timely appealed. Savannah and Gena did not appeal.

II. Motion to Determine Jurisdiction

3 Several attorneys against whom the allegations were made had withdrawn by this point and were not present at the hearing. The appellants obtained new counsel for this appeal.

5 Before moving to the merits of this case, we address a motion filed by the appellants

titled “Motion to Determine Appellate Jurisdiction and if Appropriate to Remand for Entry

of Final Order.” In that motion, the appellants note that defendant Mary Tate was dismissed

without prejudice on February 28, 2019. Defendant Joe Whicker was also dismissed without

prejudice on April 11, 2019. The claims against Ms. Tate and Mr. Whicker were brought by

all plaintiffs, and they were dismissed from the case completely without prejudice. For this

reason, the appellants contend it is possible that the circuit court’s dismissal with prejudice

is not a final, appealable order. We disagree.

This court has drawn a distinction between the dismissal of a claim without prejudice

and the dismissal of a party without prejudice. Barr v. FPI Ark. LLC, 2020 Ark. App. 209, at

7, 598 S.W.3d 870, 874. In contrast to the voluntary nonsuit of a claim, “the dismissal of a

party to an action, with or without prejudice, is sufficient to obtain finality and invest

jurisdiction in an appellate court.” Id. (emphasis in original). Here, the plaintiffs nonsuited

two parties rather than simply dismissing a claim. The case is final as to those two parties,

and jurisdiction is proper in this court.

Further, the plaintiffs in this case had one year to refile against Ms. Tate and Mr.

Whicker after they were dismissed without prejudice. Ark. Code Ann. § 16-56-126(a)(1)

(Repl. 2005). No plaintiff did so. Under the savings statute, the action against Ms. Tate and

Mr. Whicker is therefore “forever barred.” Ark. Code Ann. § 16-56-126(a)(1)–(2)(B).

III. Issues on Appeal

6 We now turn to the merits of the appeal. This court uses a de novo standard of

review when determining the correct interpretation of the Arkansas Rules of Civil

Procedure. Greennecks Lawn Servs. LLC v. Lewis, 2024 Ark. App. 404, at 5–6, 698 S.W.3d

367, 371.

A. Absolute Right to One Voluntary Nonsuit

Arkansas Rule of Civil Procedure 41(a) states:

(1) Subject to the provisions of Rule 23(e) 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.

It is axiomatic that a plaintiff has an “absolute right” to a voluntary nonsuit before a case is

submitted. See, e.g., Duty v. Watkins, 298 Ark. 437, 438, 768 S.W.2d 526, 527 (1989); Unruh

v. Five Star Painting Servs., LLC, 2024 Ark. App. 152, at 8, 685 S.W.3d 314, 319. “The

absolute right to nonsuit may not be denied by the trial court.” White v. Perry, 348 Ark. 675,

681, 74 S.W.3d 628, 631 (2002).

When the appellants filed their Rule 41 motion, the case was not submitted. It had

not been submitted to a jury. It had not been subject to a bench trial. It was not subject to

pending dispositive motions that had been fully briefed. It was not after the close of a

hearing on dispositive motions. The parties note that a motion to compel was pending, but

that is not a dispositive motion, and at any rate, it had not been fully briefed when the

appellants filed their motion for voluntary nonsuit.

7 The supreme court has given preference to the absolute right to nonsuit over a

defendant’s motion to dismiss. See White, 348 Ark. 675, 74 S.W.3d 628; Brown v. St. Paul

Mercury Ins. Co., 300 Ark. 241, 778 S.W.2d 610 (1989); Duty, 298 Ark. 437, 768 S.W.2d

526. This is true regardless of whether the defendant’s motion to dismiss would have been

meritorious had appellant not moved to nonsuit. White, 348 Ark. at 682, 74 S.W.3d at 632.

The appellees argue that there should be a fraud exception to the absolute right to

take a nonsuit. Our appellate courts have not addressed whether there should be a fraud

exception to Rule 41(a)(1). However, the supreme court has declined to carve out an

exception for res judicata. See Lemon v. Laws, 305 Ark. 143, 145, 806 S.W.2d 1, 2 (1991). In

so holding, the supreme court stated, “If we applied the doctrine to a plaintiff’s voluntary

dismissal under Rule 41(a), we would be changing the absolute right to a qualified right. We

would be creating two types of first-time nonsuits: those that could and those that could not

be refiled.” Id.

The supreme court has also declined to carve out an exception to Rule 41(a) when

the parties argued that a dismissal with prejudice in the face of a voluntary nonsuit meant

“the trial court reached the right result, albeit for the wrong reason.” White, 348 Ark. at 682,

74 S.W.3d at 632. The supreme court reasoned,

Were we to permit a trial judge to exercise his or her discretion in deciding a nonsuit before submission to the court or jury, we would be significantly eroding a plaintiff’s absolute right to nonsuit before submission of the case. We would further be authorizing trial courts to examine the merits of a case, including affirmative defenses, in assessing whether to enter the nonsuit order prior to submission of the case for decision. This we will not do. In short, the entry of an order granting a nonsuit before submission of the case, as required

8 by Rule 41(a), is not discretionary with the trial court nor subject to an analysis based on an affirmative defense included in a defendant’s motion.

Id. at 682–83, 74 S.W.3d at 632.

In other words, an order denying a voluntary nonsuit before the case has been

submitted is reversible error, even if the circuit court reached the correct result on the merits.

Although the circuit court in this case did not consider the merits of the appellants’ lawsuit,

the same reasoning applies because neither Rule 41 nor any cases interpreting that rule

indicate that there are exceptions to the absolute right to one voluntary nonsuit.

B. Rule 11 Sanctions

The appellees also argue that a circuit court can enter an order for sanctions at any

time and that a motion for nonsuit does not strip its ability to do so. This is true. The

supreme court addressed the interaction of Rule 41(a) and Rule 11 in Whetstone v. Chadduck,

316 Ark. 330, 871 S.W.2d 583 (1994). In that case, Chadduck moved during a hearing to

dismiss his claims against Whetstone under Rule 41. The circuit court granted the motion

and dismissed the action against Whetstone without prejudice. Id. at 332, 871 S.W.2d at

584. Even after the dismissal, the circuit court retained jurisdiction for the purpose of

determining whether Rule 11 sanctions were appropriate. After a hearing, the circuit court

awarded $1,000 in attorneys’ fees to Whetstone. Id. The supreme court reversed the circuit

court on the issue of the amount awarded as the sanction, but it did not reverse the circuit

court’s retention of jurisdiction to determine whether a Rule 11 sanction should be levied.

9 Id. at 333, 871 S.W.2d at 585. The case was remanded for the circuit court to consider

whether a sanction of more than $1,000 was reasonable. Id.

The supreme court also addressed the issue of sanctions in White, supra, a Rule 41

case. In White, the circuit court dismissed the complaint with prejudice on the basis of res

judicata because the plaintiff filed his case nine months after the supreme court had affirmed

the dismissal of identical lawsuits in other counties. Although the circuit court and the

defendants in that case were concerned that a dismissal without prejudice would allow the

plaintiff to continue filing identical lawsuits that were clearly barred, the supreme court held

that Rule 11 provided an avenue for dealing with such a possibility. Id. at 684, 348 Ark. at

633–34.

Similarly, here, Rule 11 provides an avenue for the circuit court to ensure that the

justice system is not abused by the appellants and certain attorneys. Whetstone contemplates

the circuit court’s retaining jurisdiction after a Rule 41 motion is granted for the purpose of

assessing sanctions, and White contemplates a circuit court’s assessing Rule 11 sanctions if

the same action is brought again.

The appellees argue that the circuit court in this case did impose Rule 11 sanctions

by dismissing the case with prejudice. We disagree. The circuit court’s order states, “The

Court is greatly concerned that the complaint, amended complaint, and other filings may be

in violation of Rule 11.” (Emphasis added.) The circuit court also states that “the Court

alternatively FINDS that another pathway to achieve the same result could be to conduct a

Rule 11 hearing.” (Emphasis added.) These statements are not clear enough to qualify as

10 an order for sanctions. The supreme court has noted that “we believe the better practice is

for the trial court to give an explanation of its decision on Rule 11 motions sufficient for the

appellate courts to review.” Egg City of Ark., Inc. v. Rushing, 304 Ark. 562, 566, 803 S.W.2d

920, 923 (1991); see also Bratton v. Gunn, 300 Ark. 140, 143–44, 777 S.W.2d 219, 221 (1989).

Statements that certain conduct “may be” in violation of Rule 11 or that a Rule 11 hearing

“could be” a way to reach the same result is not sufficient for an appellate court to review. 4

Therefore, we do not consider whether the circuit court’s order imposed allowable Rule 11

sanctions.

IV. Conclusion

For the reasons detailed above, we reverse and remand the circuit court’s order

dismissing the appellants’ lawsuit with prejudice.

Reversed and remanded.

THYER and WOOD, JJ., agree.

Robert S. Tschiemer, for appellants.

Wright, Lindsey & Jennings LLP, by: Judy Simmons Henry, Scott A. Irby, Michael A.

Thompson, and Jacob P. Fair; and Neely Law Firm, by: Efrem B. Neely, Sr., for separate appellees

Bryan Adams; Skylar Wilson; Travis Jones; Carson Cook; Karla Cook; Prairie Wings South,

4 The appellees also argue that other pathways leading to the same result included using Arkansas Rules of Civil Procedure 37 or 60. Rule 60 is inapplicable because no nonsuit order was entered to set aside. A Rule 37 analysis is also inapplicable because no Rule 37 motion was ever filed or argued.

11 LLC; Prairie Wings Lodge, LLC; Christie Adams; Reliance Health Care, Inc.; Brandon

Adams; and Todd Ross.

Quattlebaum, Grooms & Tull, PLLC, by: Thomas G. Williams, for separate appellee

Prairie Wings South, LLC.

Friday, Eldredge & Clark, LLP, by: David D. Wilson and Martin A. Kasten, for separate

appellees Prairie Wings South, LLC; and Prairie Wings Lodge, LLC.

Munson, Rowlett, Moore, and Boone, P.A., by: Emily M. Runyon, for separate appellees

Karla Cook and Carson Cook.

Fuqua Campbell, P.A., by: Blake Hendrix and Annie Depper, for separate appellee Skylar

Wilson.