dissenting. This case involves the ability of a trial judge to regulate proceedings in his courtroom. The appellant’s attorney in the present case consistently failed to meet deadlines. The trial judge was in a position to grant summary judgment against appellant for his attorney’s dilatory conduct. As a matter of grace, the trial judge gave appellant’s attorney a final chance to respond to the summary-judgment motion, provided that certain express conditions were met. Appellant’s attorney agreed to those conditions in open court. He then ignored them, waited until the grace period had expired, and filed a voluntary nonsuit instead of the promised response. The majority holds that the trial judge could not then enter summary judgment against appellant. I disagree.
Appellant brought a tort action against appellees. One month before the scheduled trial date, appellees moved for summary judgment. Appellant moved for additional time to respond to the summary-judgment motion. Although the motion for time was not granted, appellant 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. Appellees requested that the court rule on the summary-judgment motion then and there. Appellant again requested an extension of time. The trial judge granted a one-week extension of time with the stipulation that further pleadings must be in the judge’s hands by September 1, 2001, and that they must be faxed to the judge’s office in Murfreesboro. Appellant did not comply with the terms of the extension. Instead, ten minutes before the close of business on September 1, appellant 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 additional time and entered summary judgment for appellees, stating in a letter opinion that the motion for nonsuit was made after the court had ruled on the summary-judgment motion. Appellant contends that the trial judge erred in denying his motion for nonsuit because the motion for nonsuit was filed before the case was submitted finally. I disagree.
Generally, a case is submitted when argument is closed and the case is before the court for decision. Wright v. Eddinger, 320 Ark. 151, 894 S.W.2d 937 (1995). Although it is true that a plaintiff has an absolute right to voluntarily nonsuit a claim before final submission, Norrell v. Giles, 343 Ark. 504, 36 S.W.3d 342 (2001), I do not believe that the motion for nonsuit preceded final submission under the particular circumstances of this case.
Rule 6(b) of the Arkansas Rules of Civil Procedure permits a trial judge to grant an extension of time to respond to a summary-judgment motion. The granting of an extension is discretionary. Clearly, it is within a trial judge’s discretion to limit the amount of time allowed to one week, as was done in the present case.
A more interesting question is whether it is within the trial court’s discretion to modify the manner in which pleadings made pursuant to a time extension will be presented to the court. Here, the trial judge, expressing his resolve to rule on the summary-judgment motion on September 1, directed that subsequent pleadings be faxed directly to his out-of-town office in addition to being filed with the court clerk. I believe that the trial judge, who was on assignment and who resided in another county, had the discretion to do this, and that appellant’s motion for nonsuit was not presented before final submission of the case because the nonsuit motion was not provided to the court in the manner he directed, i.e., by fax as well as filing. However, I also think this is an academic question under the facts of this case because appellant’s attorney expressly agreed to present his response to the court in this manner, and the trial judge made it clear that this manner of presentation to the court would be applicable to all subsequent pleadings:
THE COURT: I was wanting to get [appellant’s response] in by next Friday so I can rule.
Appellant’s counsel: Yes, sir, ... I normally include that to mean filed. I’m perfectly willing to fax it to you or I’ll mail you a file-stamped copy. Any way you want it.
The Court: Well, just fax it to me ... and any land of documentation I need to see. Realize I’m in another county and I don’t have access to the Clerk’s file, so if there’s anything the Court needs to see, correspondence or whatever, address it to my office in Murfreesboro.
Nor do I agree with appellant’s argument that the case was not finally submitted because appellee had been allowed five days to file a reply to appellant’s response. The trial judge made it quite clear that no further extension was to be granted and that he must have the response in hand by September 1. When appellant failed to respond on the appointed day, pleadings were closed, and the case was finally submitted because there was nothing for appellees to reply to.
I respectfully dissent.
Hays, S.J., agrees.