stating that we do not presume rulings on constitutional challenges to statutes even when the trial court’s decision enforces or applies the statute
How later courts described this case
- stating that we do not presume rulings on constitutional challenges to statutes even when the trial court’s decision enforces or applies the statute
Written by the judges who cited it.
The opinion
JIM HANNAH, Chief Justice, dissenting.
I respectfully dissent. The majority errs in its analysis of the circuit court’s ruling which follows:
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
The parties came before this Court to be heard on Defendants’ Motion to Dismiss. Upon consideration of all arguments, pleadings, briefs, and exhibits, this Court finds that the Defendants’ Motion to Dismiss should be and hereby is GRANTED.
The Plaintiffs’ claims are statutorily barred by Ark.Code Ann. § 18^4-115(a)(4). The statute provides that “[i]f a residential contractor fails to give the notice required under this subsection, then the residential contractor is barred from bringing an action either at law or in equity, including without limitation quantum meruit, to enforce any provision of a residential contract.” Ark. Code Ann.Jjj § 18-44-115(a)(4). The required notice that a residential contractor must give is provided in Ark. Code Ann. § 18-44-115 (a)(7); the statute requires that the “Important Notice to Owner” language “be conspicuous, set out in boldface type, [and] worded exactly as stated in all capital letters.” Ark. Code Ann. § 18 -44r-115(a)(7). The Arkansas Supreme Court has held that lien statutes, and specifically the notice provisions of § 18-44-115, require strict compliance. See Books A-Million, Inc. v. Arkansas Painting and Specialties Co., 340 Ark. 467 [ 10 S.W.3d 857 ].
The Plaintiff included an “Important Notice, to Owner” provision in the Residential Contract (see Plaintiffs Complaint, Exhibit 1), however the notice does not strictly conform with the statutory language. Pursuant to Ark.Code Ann. § 18-44-115(a)(4), the Plaintiff is barred from bringing an action at law or equity to recover under the contract and has therefore failed to state a claim upon which relief can be granted. The Plaintiffs Complaint fails to state a claim upon which relief can be granted and must be dismissed pursuant to Ark. R. Civ. P. 12(b)(6).
The last two paragraphs upon which the majority focuses its analysis on are mere surplusage.
The determining language is the court’s statement that “[t]he parties came before this Court to be heard on Defendants’ Motion to Dismiss. Upon consideration of all arguments, pleadings, briefs, and exhibits, this Court finds that the Defendants’ Motion to Dismiss should be and hereby is GRANTED.”
The majority relies on Ghegan & Ghegan, Inc. v. Barclay, 345 Ark. 514 , 49 S.W.3d 652 (2001), in error. As the majority notes, the circuit court in Ghegan mentioned the constitutional issue in its order but did not rule on it. The majority’s reliance on Gwin v. Daniels, 357 Ark. 623 , 184 S.W.3d 28 (2004), is also misplaced in the context of this case. Gwin stands for the simple proposition that the issue must be presented to the trail court and there must be a ruling on the issue before there can be appellate review. Here the circuit court stated that it had considered all arguments, pleadings, briefs, and exhibits and it ruled. To now conclude that the circuit court did not rule, when it expressly states that it did rule, |17is error. This decision puts counsel in an untenable position that counsel will be held responsible for the failure to obtain a ruling under the very narrow principles set out by the majority. This means that counsel must persuade the circuit-court judge that an extremely detailed, and finite written order must be issued. While counsel are sometimes assigned by the circuit court to draft a precedent, that is not always the case. Even if counsel were to always draft the precedent, there will be disputes between counsel and the circuit court, which will result in matters coming before this court under its original jurisdiction. This court will be faced with petitions to compel the circuit court to act in a manner that counsel believes is required by the majority’s decision. Overcrowded circuit-court dockets and overworked circuit-court judges will be compelled to engage in needless extra work. Counsel will be put in the unenviable position of having to challenge circuit judges before whom they customarily practice.
In the case before us, the issues were raised before the circuit court. A ruling was obtained on each issue, even though the ruling spoke to all issues. All the issues argued before the circuit court are before this court now. Therefore, I dissent.
BAKER and HART, JJ., join.