The opinion
R obert L. Brown, Justice, dissenting. The decision in this case is extraordinary. The circuit judge specifically found that no misrepresentation had been made to him by counsel for Hyden. He further said that he too thought that the law required a filing of the response in the circuit clerk’s office for it to be effective and that he had checked the case file and found no response.
Here are the judge’s exact words:
I guess I learned something I did not realize before, but I had always read the Rules of Civil Procedure to require the filing of the complaint or rather the response of (sic) pleading prior to the time that the motion — the time for service of motion was due.
I never realized that actually it does not say that. It actually says it has to be served within the time and then it says it has to be filed on the party with the clerk’s office before service, so within a reasonable time after.
The circuit judge acknowledged that both parties had stipulated to the fact that Grassi’s response had actually been timely served, and he found that the filing of Grassi’s response was made within a reasonable time after service. The following colloquy then took place:
Hyden’s attorney: There was no misrepresentation made to the Court at all. The Court, as I understand, looked to whether the response had been filed —
The Court: That’s correct.
Hyden’s attorney: — and found that there had been a timely filing, so it had nothing to do —
The Court: With the parties, exactly. That’s true. For the record, I need to make that clear.
Hyden’s attorney: There was no misrepresentation made at all.
The Court: Right.
Grassi’s attorney: But, Your Honor, a precedent was forwarded to the Court for that purpose, for entry and I think that implies that it was a fault.
The Court: Well, I agree with [Hyden’s attorney]. I want to make the record clear. There was no misrepresentation on the part of the defendant. That is correct, the Court did look to the — the Court looked to the file to see whether or not — well, I mean there was a representation that there had not been a filing. And so the Court looked to the clerk’s file and there was not a response that was made to it. So that’s what the Court did.
Nor does constructive fraud control this case. Constructive fraud is a breach of a legal or equitable duty which, irrespective of the moral guilt or the valid reason, the law declares fraudulent because of its tendency to deceive others; neither actual dishonesty or purpose nor intent to deceive is an essential element of constructive fraud. See South County, Inc. v. First Western Loan Co., 315 Ark. 722 , 871 S.W.2d 325 (1994). How can the majority conclude that the circuit judge was the victim of constructive fraud when the judge made his own independent determination? He said he checked the clerk’s file and found no response and further said he had always read the Rules of Civil Procedure to require the filing of the response with the clerk before service on opposing counsel. Of course, constructive fraud was never argued by counsel in the case to the circuit judge or raised as an issue in this appeal.
Despite this, the majority says a misrepresentation was practiced on the circuit judge. Never mind that the circuit judge said this did not happen and that he checked the clerk’s file on his own. Never mind that one of the five required elements of fraud is justifiable reliance by the purported victim of the misrepresentation, see Bullock v. Barnes, 366 Ark. 444 , 236 S.W.3d 498 (2006), and the circuit judge said there was no misrepresentation for him to rely on.
I am convinced that we wander far afield when we superimpose our judgment on a trial judge, especially when we presume to tell that judge what his state of mind was and whether something was misrepresented to him when he says it was not.
I respectfully dissent.
Imber, J., not participating. Glaze, J., joins.