Opinion
CA 08-1478
Opinion Delivered November 4, 2009
Appeal from the Lonoke County Circuit Court, [No. CV-2008-397], Honorable Phillip Whiteaker, Judge, Affirmed.
Appellant Brenda Higgins, as guardian of the person and estate of Tonya Merritt, appeals the order of the Lonoke County Circuit Court dismissing her complaint against appellee Bob Thornton. For reversal, appellant contends that the trial court erred in ruling that the complaint was barred pursuant to Rule 41(b) of the Arkansas Rules of Civil Procedure. We affirm because the record does not contain the information that is necessary for a review of the question presented on appeal.
The record in this case discloses that appellant is the mother and guardian of her adult daughter, Tonya Merritt. Appellant is also the daughter of Alpha Burnett, who is now deceased. In her will, Burnett bequeathed various sums of money to her sister, a cemetery, and to a church. With the remainder of her estate, she established a testamentary trust for the benefit of Merritt. Burnett named appellee as trustee.
On June 12, 2008, appellant filed a complaint against appellee seeking an accounting and asserting fraud and negligence in appellee's management of the trust. In response, appellee filed a motion to dismiss or, in the alternative, a motion for summary judgment. In this motion, appellee alleged that the present suit was barred under the provisions of Rule 41(b) because appellant had filed two previous lawsuits against him that were both dismissed. Further, appellee asserted that appellant's complaint failed to state any facts in support of her claims of fraud and negligence. Appellee also contended that the request for an accounting was premature because the terms of the trust required an annual accounting and he had provided an accounting within the past year. In support of the motion to dismiss, appellee attached as exhibits Burnett's will and a copy of the most recent accounting. In opposition to appellee's argument based on Rule 41(b), appellant responded that her claims in the second case were different from those she presented in the first cause of action. She also alleged that the most recent accounting provided by appellee was flawed and that appellee continued to fraudulently and negligently mismanage the trust.
By an order dated October 21, 2008, the trial court granted appellee's motion to dismiss based on Rule 41(b). The trial court found that appellant's current claims were barred based on the dismissals in the two previous lawsuits.
In appealing the trial court's decision, appellant argues that her present complaints are not foreclosed by the previous dismissals because the claims set forth in the second case were different from those she asserted in the first cause of action. Rule 41(b) provides:
Involuntary Dismissal. In any case in which there has been a failure of the plaintiff to comply with these rules or any order of court or in which there has been no action shown on the record for the past 12 months, the court shall cause notice to be mailed to the attorneys of record, and to any party not represented by an attorney, that the case will be dismissed for want of prosecution unless on a stated day application is made, upon a showing of good cause, to continue the case on the court's docket. A dismissal under this subdivision is without prejudice to a future action by the plaintiff unless the action has been previously dismissed, whether voluntarily or involuntarily, in which event such dismissal operates as an adjudication on the merits.
(Emphasis supplied.) Under this rule, a plaintiff may suffer an involuntary dismissal for failure to comply with the court's orders, the court's rules, or for inaction in the case. Middleton v. Lockhart, 344 Ark. 572, 43 S.W.3d 113 (2001). Such a dismissal is with prejudice where the action has been previously dismissed, whether voluntarily or involuntarily. Id. This second dismissal operates as an adjudication on the merits, thus barring any future claim based on the same cause of action. See Jordan v. Circuit Court of Lee County, 366 Ark. 326, 235 S.W.3d 487 (2006) (granting writ of certiorari where previous dismissals involved same claims in third complaint); Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003); Middleton, supra (holding that Rule 41(b) did not apply where the claims in the third lawsuit were different from those in the previous suits).
Our courts have not considered the application of Rule 41(b) to claims against a trustee who has ongoing responsibilities for the management of a trust. Unfortunately, we are in no position to determine whether the present claim is barred based on the prior dismissals because the pleadings and orders from the earlier cases are not properly before us. A review of the record reflects that appellee did not attach the pleadings or orders from the previous cases as exhibits to his motion to dismiss, nor did appellant make them a part of the record in opposition to the dismissal motion. In her notice of appeal, appellant designated the pleadings and orders from the earlier cases to be included as a part of this record. When the circuit clerk did not include them, appellant filed a motion with this court for the record to be settled, asserting that those pleadings and orders were considered by the trial court in making its decision. We granted the motion for the record to be settled, but appellant simply submitted portions of the records from the other cases.
It is apparent to us that the pleadings and orders from the previous cases were never made a part of the record in this case. As a result, we cannot consider them. It is a fundamental rule of our law that a judgment relied upon as a bar to an action cannot be considered unless properly introduced into evidence, and courts cannot take judicial notice of their own records in other causes, even between the same parties, nor of the record and proceedings of other courts. Braswell v. Gehl, 263 Ark. 706, 567 S.W.2d 113 (1978); White v. Minyard, 8 Ark. App. 269, 650 S.W.2d 599 (1983). Appellant does not argue that the trial court erred by considering pleadings and orders that were not incorporated in this record. Her argument is that the provisions of Rule 41(b) do not bar her present cause of action because her claims in the second case were different from those she presented in the first lawsuit. However, we cannot possibly address the issue raised on appeal without properly having before us the pleadings and orders from the two prior cases. We have repeatedly and consistently stated that matters outside of the record will not be considered on appeal. See McDermott v. Sharp, 371 Ark. 462, 267 S.W.3d 582 (2007); Gibbs v. Hensley, 345 Ark. 179, 44 S.W.3d 334 (2001); Smith v. State, 343 Ark. 552, 39 S.W.3d 739 (2001); Cranston v. Carroll, 97 Ark. App. 23, 242 S.W.3d 643 (2006). Under these circumstances, we have no choice but to affirm the trial court. Hudson v. Kyle, 365 Ark. 341, 229 S.W.3d 890 (2006); Davidson v. State, 363 Ark. 86, 210 S.W.3d 887 (2005); SD Leasing, Inc. v. RNF Corp., 278 Ark. 530, 647 S.W.2d 447 (1983).
Affirmed.
ROBBINS and KINARD, JJ., agree.