King v. Whitfield

WH. “Dub” Arnold, Chief Justice.

Appellant, Durwood stice. appeal, challenging the circuit court’s order dismissing his complaint against Sam 'Whitfield, the certified winner in a contested general election held for Municipal Judge for the City of Helena, Arkansas, on November 3, 1998. Our jurisdiction is authorized pursuant to Ark. Sup. Ct. Rule l-2(a)(4) (1999). Specifically, King asserts that the trial court erred (1) by concluding that it lacked jurisdiction to hear his complaint, and (2) by counting eighty-six absentee ballots cast in favor of Whitfield. We find no merit in appellant’s arguments, and we affirm the trial court’s decision dismissing the complaint for lack of jurisdiction and for failure to state facts upon which relief can be granted. See Ark. R. Civ. P. 12(b)(1), (6) (1999). In light of our holding affirming the trial court’s decision to dismiss appellant’s complaint, we decline to address the merits of King’s remaining arguments.

On the face of appellant’s complaint, he alleged that the case presented an election contest pursuant to Ark. Code Ann. section 7-5-801 (Repl. 1993), that both he and Whitfield were candidates for municipal judge, and that appellee Election Commission certified Whitfield as the candidate elected. Additionally, King asserted that eighty-eight of the votes cast for Whitfield were mailed by Nathan Ashwood to the County Clerk in two separate parcels, one containing thirty-nine absentee ballots and the other forty-nine absentee ballots. King alleged that the absentee ballots were invalid because they were not cast in compliance with Ark. Code Ann. section 7-5-411. Consequently, he averred that he received the majority of votes cast and should be declared the municipal judge. Notably, the complaint failed to allege the total number of votes cast, the total number of votes cast for each candidate, and the date the election was certified. King also failed to state the names of the contested absentee-ballot voters.

After reviewing the complaint, the trial court concluded that it lacked jurisdiction because the face of the complaint demonstrated that the action was not commenced within twenty days of the election’s certification, as required by Ark. Code Ann. section 7-5-801 (Repl. 1993). Although a review of the record indicates that (1) the election was certified on November 17, 1998, (2) the complaint was filed on November 30, 1998, (3) the Election Commission certified that a total of 2,432 votes were cast in the municipal judge’s race, 1,174 votes for the incumbent judge, King, and 1,258 votes for appellee Whitfield, none of these facts was alleged in the complaint. Additionally, the trial court found that the complaint failed to state sufficient facts to support a claim and that the eighty-six disputed ballots were valid and properly counted. From this order comes the instant appeal, challenging the trial court’s dismissal. We affirm.

I. Standard of review

Appellant’s first point on appeal challenges the trial court’s order granting appellee Whitfield’s motion to dismiss. This court reviews a trial court’s decision on a motion to dismiss by treating the facts alleged in the complaint as true and viewing them in the light most favorable to the plaintiff. See Hames v. Cravens, 332 Ark. 437, 440-41, 966 S.W.2d 244 (1998) (citing Neal v. Wilson, 316 Ark. 588, 595-96, 873 S.W.2d 552 (1994) (citing Gordon v. Planters & Merchants Bancshares, Inc., 310 Ark. 11, 832 S.W.2d 492 (1992); Battle v. Harris, 298 Ark. 241, 766 S.W.2d 431 (1989)); Mid-South Beverages, Inc., 300 Ark. 204, 205, 778 S.W.2d (1989) (citing Battle, 298 Ark. 241))). Significantly, a trial judge must look only to the allegations in the complaint to decide a motion to dismiss. Harms, 332 Ark. at 441 (citing Neal, 316 Ark. at 596 (citing Wiseman v. Batchelor, 315 Ark. 85, 864 S.W.2d 248 (1993); Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992)); Mid-South Beverages, Inc., 300 Ark. at 205 (citing Battle, 298 Ark. 241))).

II. Jurisdiction

Based upon the face of King’s complaint, the trial court concluded that it lacked jurisdiction because it determined that the action was not filed within twenty days of certification, pursuant to Ark. Code Ann. section 7-5-801 (Repl. 1993). Section 7-5-801 (d) provides that:

The complaint shall be verified by the affidavit of the contestant to the effect that he believes the statements to be true and shall be filed within twenty (20) days of the certification complained of.

In paragraph seven of his complaint, King alleged that:

The Defendants Election Commission certified Sam Whitfield as being the candidate elected in this election on November 3, 1998, which certificate is error and improper as set out herein, and the Election Commission should have certified Plaintiff as the person who was elected.

(Emphasis added.) Apparently, the trial court concluded that King’s reference to November 3, 1998, the day the general election was held, implied that that was also the date of certification. Although the record indicates that the certification date was November 17, 1998, the complaint fails to state sufficient facts for the trial court to determine that jurisdiction was properly alleged. Accordingly, the trial court properly dismissed the complaint for lack of jurisdiction.

III. Failure to state a cause of action

Kang’s second point on appeal contends that the trial court erred by finding that the complaint failed to sufficiendy state a cause of action. In its letter opinion incorporated in the order of dismissal, the trial court noted that King failed to name the voters who allegedly cast illegal ballots and faded to allege the certified vote totals for each candidate or the vote differentials. The trial court concluded that King presented only bare allegations, warranting dismissal. We agree.

In paragraphs eight, nine, ten, and eleven of his complaint, King alleges that Nathan Ashwood mailed a total of eighty-eight ballots to the Phillips County Clerk that were unaccompanied by a certificate authorizing Ashwood to return the ballots. King also stated his intent to challenge each ballot individually, pursuant to Ark. Code Ann. section 7-5-411. Finally, King alleged that because the eighty-eight absentee ballots cast for appellee Whitfield were invalid, King would have a majority of the valid votes cast in the election.

We have repeatedly held that election statutes should be liberally construed to ensure compliance. See Duennenberg v. City of Barling, 309 Ark. 541, 832 S.W.2d 237 (1992); see also LaFargue v. Waggoner, 189 Ark. 757, 75 S.W.2d 235 (1934). Significantly, in LaFargue, we noted that “if there are sufficient facts stated to give the other party reasonable information as to the grounds of the contest, then the case should be tried on its merits.” LaFargue, 189 Ark. at 768. Further, in Gunter v. Fletcher, 217 Ark. 800, 233 S.W.2d 242 (1950), we acknowledged that the purpose of the election laws was to facilitate, and not hinder by technical requirements, the quick initiation of election contests. Gunter, 217 Ark. at 802. As a general rule, we do not hold parties to the same strict technical accuracy as required in a civil pleading, and we will disregard technical objections. Gunter, 217 Ark. at 802-03 (citing Robinson v. Knowlton, 183 Ark. 1127, 1133, 40 S.W.2d 450, 452 (1931)).

In spite of our liberal construction, a review of our cases considering the sufficiency of allegations in an election-contest complaint reveals that we require some detailed information to sustain the complaint. See McClendon v. McKeown, 230 Ark. 521, 323 S.W.2d 542 (1959). For example, in Gunter, the complaint alleged the total number1 of votes cast for each contestant, the names of each voter alleged to have cast an illegal ballot, and the township in which each had voted. McClendon, 230 Ark. at 522, 323 S.W.2d at 543. The complaint gave detailed information of the name and voting place of each person alleged to have cast an illegal ballot. Id. Significantly, it is not the trial court’s duty, on its own initiative, to ask the names of persons alleged to have cast illegal ballots. Here, it remained King’s responsibility to sufficiendy allege a cause of action. McClendon, 230 Ark. at 524, 323 S.W.2d at 544. At a minimum, King should have alleged in the complaint the number of votes received by each candidate, so that it would appear, after deducting the alleged fraudulent votes from the number accredited to Whitfield, that King would have more votes than his opponent. See McClendon, 230 Ark. at 525, 323 S.W.2d at 544-45.

Although appellant asserts that he included the vote totals in the complaint, a review of the complaint demonstrates otherwise. In the absence of vote totals or differentials, the trial court could not conclude from the face of the complaint that, if the absentee votes were counted for King, the result of the election would actually have been different. Where, as here, a party fails to allege the specific facts necessary to contest the election and declare himself the winner, it is too late to subsequendy amend his complaint by pointing to facts outside the complaint after the time for contesting the election has expired. See Rubens v. Hodges, 310 Ark. 451, 837 S.W.2d 465 (1992); see also Wheeler v. Jones, 239 Ark. 455, 390 S.W.2d 129 (1965).

In the instant case, King failed to set out a prima facie case essential to state a cause of action for an election contest and failed to inform either the opposing party or the trial court as to the specific facts creating a cause of action and vesting jurisdiction in the trial court. Treating the facts alleged in the complaint as true and viewing the complaint in the light most favorable to appellant, we, nevertheless, conclude that the trial court properly dismissed King’s complaint.

Glaze, Brown, and Smith, JJ„ concur.