Elliott v. Boone County Independent Living, Inc.

John Mauzy Pittman, Judge.

The appellant, Genevieve Elliott, appeals from an order staying the proceedings on her wrongful-death complaint against appellee, Boone County Independent Living, Inc., until appellant paid appellee’s costs and attorney’s fees in connection with a previously dismissed wrongful-death action. Appellant argues that the trial court was without authority to make payment of attorney’s fees a condition to having the stay lifted. Because we conclude that appellant’s point was not preserved for appeal, we do not address it on its merits, and we affirm.

Appellant first filed her wrongful-death lawsuit against appel-lee on May 7, 1993. On February 10, 1994, appellant took a voluntary nonsuit pursuant to Ark. R. Civ. P. 41. Appellant refiled the action on February 9, 1995. Appellee answered and, citing Ark. R. Civ. P. 41(d), moved for an order staying the proceedings until appellant paid appellee $105.68 in costs and $4,055.68 in attorney’s fees associated with the first action. Appellant did not respond to the motion. Subsequendy, the trial court entered an order reciting the above facts and giving appellant until July 14, 1995, to respond to appellee’s motion. Again, appellant filed nothing. On September 7, 1995, the trial court, specifically noting the lack of any response by appellant to appel-lee’s motion, entered an order staying the proceedings until appellant paid appellee $105.68 in costs and $3,000.00 in attorney’s fees. This appeal followed.

Rule 41(d) of the Arkansas Rules of Civil Procedure provides as follows:

Costs of Previously Dismissed Action. If a plaintiff who has once dismissed an action, or who has suffered an involuntary dismissal in any court, commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order.

Appellant argues that this rule does not authorize trial courts to order the payment of attorney’s fees as “costs.” Appellant notes that the supreme court has not decided this issue, see Transit Homes, Inc. v. Bellamy, 287 Ark. 487, 701 S.W.2d 126 (1985), but cites Brady v. Aiken, 273 Ark. 147, 617 S.W.2d 358 (1981), for the general proposition that attorney’s fees are not to be allowed as costs except as provided by statute or court rule. See also Arkansas Dep’t of Human Servs. v. Kistler, 320 Ark. 501, 898 S.W.2d 32 (1995). We recognize that appellant’s argument is a strong one and may well have merit. However, because appellant failed to raise the issue in any way before the trial court, we are unable to address it.

It has long been held that Arkansas courts have no plain-error rule. Subject to very limited exceptions, none of which are applicable here, the rule in this state is that an argument for reversal will not be considered on appeal in the absence of an appropriate objection in the trial court. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980); see Lynch v. Blagg, 312 Ark. 80, 847 S.W.2d 32 (1993); Sturgis v. Lee Apparel Co., Inc., 304 Ark. 235, 800 S.W.2d 719 (1990). The rule requiring an objection below is no less applicable to questions regarding the award of attorney’s fees. See Farm Bureau Mut. Ins. Co. v. David, 324 Ark. 387, 921 S.W.2d 930 (1996); Benton v. Barnett, 53 Ark. App. 146, 920 S.W.2d 30 (1996). Under the particular facts of this case, where the motion for fees was not acted upon for over six months, during which time the trial court specifically invited appellant to respond to the motion, application of the general rule is especially appropriate.

It was argued in our conference of this case that the trial court lacked “subject-matter jurisdiction” to award attorney’s fees under Ark. R. Civ. P. 41(d), and that the issue may, therefore, be raised for the first time on appeal. We conclude, however, that the court did not lack subject-matter jurisdiction over the question of attorney’s fees.

In Banning v. State, 22 Ark. App. 144, 737 S.W.2d 167 (1987), we explained:

The rule of almost universal application is that there is a distinction between want of jurisdiction to adjudicate a matter and a determination of whether the jurisdiction should be exercised. Jurisdiction of the subject matter is power lawfully conferred on a court to adjudge matters concerning the general question in controversy. It is power to act on the general cause of action alleged and to determine whether the particular facts call for the exercise of that power. Subject matter jurisdiction does not depend on a correct exercise of that power in any particular case. If the court errs in its decision or proceeds irregularly within its assigned jurisdiction, the remedy is by appeal or direct action in the erring court. If it was within the court’s jurisdiction to act upon the subject matter, that action is binding until reversed or set aside. [Citations omitted.]

Id. at 149, 737 S.W.2d at 170; see Leinen v. Arkansas Dep’t of Human Servs., 47 Ark. App. 156, 886 S.W.2d 895 (1994); In re: Adoption of D.J.M., 39 Ark. App. 116, 839 S.W.2d 535 (1992); see also Birchett v. State, 303 Ark. 220, 795 S.W.2d 53 (1990).

Clearly, subject-matter jurisdiction of wrongful death actions, such as are involved here, is vested in the circuit courts of this state. Just as clearly, the circuit court is also empowered with authority to hear and determine requests for costs and fees growing out of actions within its assigned jurisdiction. While the court here may have erred in its decision or proceeded irregularly in exercising its assigned jurisdiction, that is entirely different from the matter of its jurisdiction to determine whether to exercise that power or not.

Finally, we note the case of Lewallen v. Bethune, 267 Ark. 976, 593 S.W.2d 64 (Ark. App. 1980). There, among other things, this court reversed an award of attorney’s fees despite the lack of an objection in the trial court. To the extent that Lewallen conflicts with this opinion, it is wrong and is overruled.

Affirmed.

Robbins, C.J., and Rogers, Stroud, and Neal, JJ., agree. Griffen, J., dissents.