Cit e as 2014 Ark. 486



## S UPREME COURT OF ARKANS AS No. CV-14-576
FORT SMITH SCH OOL DISTRICT; GREENWOOD SCH OOL DISTRICT; ALMA SCH OOL DISTRICT; AND VAN B U REN SCH OOL DISTRICT APPELLANTS V.

DEER/ MT. JU DEA SCH OOL DISTRICT APPELLEE Opinion Delivered Novem ber 20, 2014 APPEAL FROM TH E PU LASKI COU NTY CIRCU IT COU RT [NO. 60CV-10-6936] H ONORAB LE CH RISTOPH ER CH ARLES PIAZZA, JU DGE AFFIRMED.

PAU L E. D AN I EL SO N, As s ociat e Ju st ice Appellant s F o r t Sm it h School Dist rict ; Greenwood School Dist rict ; Alm a School Dist rict ; and Van B uren School Dist rict (collect ively “Fort Sm it h”), appeal from t he circuit
court ’s order denying t h eir mot ion t o int ervene as a mat t er of right in t he lit igat ion of appellee Deer/ Mt

. Judea School Dist rict (“Deer/ Mt

. Judea”). 1 T h e sole point on appeal is t hat t he circuit court erred in denying int ervent ion as a m a t t er of right

. This court has previously recognized a right to appeal from t he d e n i a l o f a m ot ion t o int ervene as a mat t er of right under Arkansas Rule o f Appellat e Procedure–Civil 2(a)(2). See Duffield v. B e nton Cnty. Stone Co. , Inc. , 369 Ark. 314, 254 S.W.3d 726 (2007). We affirm t he circuitcourt ’ s order. The i nst ant lit i gat ion st em s from Deer/ Mt

. Judea’s suit alleging inequit ies in t he St at e’s

1 M ike B eebe, in h is official capacit y as Governor of t he St at e of A rkansas, and ot hers, were defendant s below but are not part i es t o t he inst ant appeal (“St at e Defendant s”).Cit e as 2014 Ark. 486

school-funding pract i c es . I n it s original c om plaint , D eer/ Mt

. Judea, on i ts own behalf and

on behalf of it s st u d ent s and t axpayers, sought to enjoin act ions b y t h e S t at e t hat D eer/ Mt

. Judea claim ed violat ed st at e law and t he Arkansas Const it ut i on and w ould i n e vit ably result in the c losure of t he dist rict ’s schools. Specifically, Deer/ M t
. Judea claim e d t hat t he St at e had
act ed cont rary t o st at e l aw and t he const i t ut ion “by failing t o provide sm all, rem ot e schools adequat e funding and by closing sm all, r e m ot e schools wit hout considering whet h e r t h e i r
st udent s will be denied a subst ant ially equal opport u nit y fo r an adequat e educat ion due to excessive t ransport at ion t i m e. ” D eer/ Mt

. Judea prayed for a variet y of r elief, including (1)

a decla r a t i o n t h at t he St at e’s school-funding syst em w as inequit able and inadequat e; (2) a declarat ion t hat t he St at e’s educat ion syst em w as inequit able and inadequat e; (3) an injunct i on direct ing t he S t at e t o com ply wit h it s const it ut ional m andat es such as fully funding and im p lem ent ing a syst em for evaluat ing and im proving st u dent achievem ent , f ully funding and im p lem ent ing a syst em for professional developm e n t , adopt ing a st at ewide syst em of t eacher

com p ensat ion t o at t ract and re t ain t eachers in sm all and rem ot e schools, est ablishing a

m axim um t ransport at ion t im e for st udent s and a process for ident ify i n g t hose st udent s,

rem oving t ransport at i on funding from foundat ion funding and adopt ing a funding syst em specifically fo r t h e t r a n s p o r t a t i o n o f s t u d e n t s , r e m o v i n g t e acher-ret irem ent and t eacher-healt hinsurance funding from foundat ion funding and paying t h ose cost s direct ly on b ehalf of t he dist r ict s, and adopt ing rules and regulat ions t o bet t er enable a dist rict unable t o raise m onies for it s port ion of facilit ies m aint enance t o p a y it s port ion; (4) an i njunct ion p rohibit ing t he closure o f sm all, rem ot e schools and consolidat ing or annexing sm all, r em ot e dist rict s unt il t he

2Cit e as 2014 Ark. 486

St at e has r em edied t he const i t ut ional violat ions alleged; (5) a declarat ion t hat sect ion 32 of Act 293 of 2010 const it ut ed local or special legislat ion; and (6) an injunct ion prohibi t i n g t he disbursem ent of funds pursuant t o sect ion 32 of Act 293. Following t he circuit court ’s grant of a m ot ion to dism iss Deer/ Mt

. Judea’s adequacy claim s by defendant Governor M ike B eebe and t he c ircuit court ’s grant of sum m ary judgm ent
t o Deer/ Mt

. Judea on it s special-legislat ion claim , D eer/ Mt

. Judea appealed the circuit court ’s rulings t o t his court
. In Deer/ Mt. Judea Sch ool District v. K i mbrell , 2013 A rk. 3 93, 430 S.W.3d 29, t his court reversed t he circuit court ’s dism i ssal of so m e o f D ee r / Mt

. Judea’s claim s and

rem anded. This court drew a dist inct ion bet ween Deer/ Mt . Judea’s claim s, st at ing t hat [s]om e of t he act s o r o missions com plained of occur r e d a f t e r w e had r eleased t he m andat e in La k e V

i e w 2007 [, 370 A rk. 139, 2 57 S.W.3d 879 (2007)]. The circuit court a b u s e d i t s discret i on in dism issing t hese claim s. H owever, t hose act s o r om issions that were b ro u g ht or could have been brought in t he p revious schoolfunding c ases are b arred by res judicat a, and t he c ircuit court did n ot e rr in dism issing t h em . 2013 Ark. 393, at 19, 430 S.W.3d at 44. W e t h e n h e l d t h at t he “circuit court erred in dism issing [Deer/ Mt

. Judea]’s c laim s . . . relat ing t o t he adequacy report s and e v a l u a t ions, COLAs, t ransport at ion funding, and facilit i es funding based on res judicat a.” Id

. at 23, 430 S.W.3d at 46. 2 On February 12, 2 014, Fort Sm it h filed it s m ot ion t o int ervene in t h e lit igat ion. The

m ot ion alleged t hat t he school dist rict s seeking t o int ervene operat e d k indergart en-t hrough2 I n addit i on, we affirm ed t h e circuit court ’s st riking of Deer/ Mt

. Judea’s am ended and supplem ent al com plaint , and we held m o ot Deer/ M t. Judea’s cont ent ion t hat the circuit court e r red in severing only the dat e rest rict ion in sect ion 31 of Act 269 of 2 012, wit h respect to it s special-legislat ion claim

. See Deer/ Mt. Judea , 2013 Ark. 393, 430 S.W.3d 29. 3Cit e as 2014 Ark. 486

t w elft h-grade school s i n C r awford and Sebast ian Count ies, serving anywhere f rom 3,278
st udent s i n A l m a t o approxim at e ly 14,700 st udent s in Fort S m it h. Fort Sm it h assert ed that it agreed wit h Deer/ Mt

. Judea’s cont ent ion t hat the St at e had violat ed st at e law by failing to

com p ly wit h A ct 57 o f 2003 in evaluat ing whet her a subst ant ially e qua l o p p o r t u n i t y for an adequat e educat ion was being afforded t o Arkan s a s’s st udent s. The m ot ion furt her alleged
t h at [a]ll of t he prerequisit es for int ervent ion as of right are present here. Deer/ M t
. Judea schools are sm all, re m ot e schools locat ed in mount ainous and sparsely populat ed Newt on Count y, Arkansas , w h o c ont e n d St at e act ions r elat ed t o t heir funding will inevit ably result in t heir closure if not c o r r ect ed. B y c ont rast , Int ervenors are larger schools at t he ot h er end of t he spect rum locat ed in t he more populat ed a r eas of Crawford and Sebast ian Count ies, Arkansas, whose funding Deer/ Mt

. Judea point s to as being in excess of what is n eeded at t h e expense of sm all, rem o t e s c h o o l s l ike Deer/ Mt . Judea. Fort Sm it h not ed t his court ’s decision in Deer/ Mt. Judea affirm ing t he dism issal of som e of Deer/ Mt

. Judea’s claim s because t hey could have b een brought in prior school-funding cases
t h at Fort Sm i t h claim e d Deer/ Mt

. Judea was not a part y t o. I t c l a i m e d t hat , wit hout int ervent ion, i t could suffer t he sam e fat e and t hat it s int erest s in any adjust m ent s m ade t o t he school-funding syst em c ould b e f oreclosed as a result of t he lit igat ion. At t ached as an exhibit
t o t he mot ion was Fort Sm it h’s com plaint in i nt ervent ion. Deer/ Mt

. Judea responded t o Fort Sm it h’s m ot ion , r e quest i ng t hat t he m ot ion be denied. Deer/ Mt

. Judea assert ed t hat t he

m ot ion was unt im ely and t h at Fort Sm it h’s i n t e rest s were adeq u a t e l y represent ed by t he exist ing part ies. A hearing on Fort Sm it h’s m ot ion was held on June 3 , 2 0 1 4

. At t he hearing, t he circuit court heard argum ent s fro m F o r t Sm it h and Deer/ Mt

. Judea, w hile counsel for t he
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St at e Defendant s inform e d t he circuit court t h at t h ey d id n ot have a posit ion o n Fort Sm it h’s

m ot ion. At t he conclusion o f t h e hearing, t he circuit court ruled that it was going t o deny
t h e mot ion because it was an individual lawsuit affect ing onl y D e e r / Mt

. Judea. It subsequent ly e nt ered an order denying t he m ot ion, in which it m ade t he following findings:

1. The D i st rict s’ m o t ion is unt im ely. Plaint iff filed it s original Com plaint on 3 Decem ber 2 010. D efendant s m o v e d t o dism iss Plaint iff’s Com plaint on 18 January 2011. If Plaint iff did n ot adequat ely represent t he D ist rict s’ int erest s, t he Dist rict s should have i nt ervened at t hat t im e. The Dist rict s failed to j ust ify t heir t hree year delay in seeking t o int ervene. 2. E v e n if t h e D ist rict s’ m ot ion was t im ely, the Dist rict s do not h a v e a n int erest in t his case t ha t n e e d s t o be p rot e c t ed. “The ‘ Purpose’ sect ion o f Act 57 m akes it clear t hat the am ount of funding given t o schools shall be based on need and not funds available.” Deer/ Mt. Judea Sch

. Dist. v. K

imbrell , 2013 Ark. 393. This case is about t he needs of the Plaint iff. The Court reject s t h e Dist rict s’ argum ent that sat i s f y i n g t he n e eds of Plaint iff will som ehow im pair t he S t at e’s abilit y t o m eet t he Dist rict s’ needs as well. 3. Even if t he Dist r ict s’ m ot ion was t im ely and t he Dist rict s h ave an int erest in t his c ase, t he Dist rict s are adequat ely represen t e d b y the exist ing part ies. To t he ext ent t he Dist rict s agree wit h Plaint iff, Plaint iff adequat ely represent s t heir int erest s. To t he ext ent t he Dist rict s agree wit h Defendant s, De f e n d a n t s adequat ely represent t h eir int erest s. S ee Little Rock Sch

. Dist. v. Pulask i Cty. Special Sch

. D ist. , 3 78 F.3d 774, 780 (8t h Cir. 2 004) (“The b urden is great er if t he n am ed part y is a governm ent ent it y t h at represent s t h e int erest s com m on t o t he public.”). Fort Sm it h now appeals. As it s sole point on appeal, Fort Sm it h argues t h at t he c ircuit court erred i n denying it s m ot i on t o int e rvene. I t cont ends t hat it is ent i tled t o int ervene as a m at t er of right because it s int erest s are not adequat ely represent ed by eit h er Deer/ Mt

. Judea or t he St at e Defendant s. Fort Sm it h assert s t hat it s int ervent ion i s e s s e n t ial b ecause t h e circuit court should hear and have t h e b enefit o f m at ters im p act ing dist rict s of all sizes, not j u s t t hose affect i n g sm aller

5Cit e as 2014 Ark. 486

dist r ict s like Deer/ M t. Judea. It urges t hat it s mot i on t o int e rvene was t im e ly b ecause it was filed just aft e r t his court ’s prior decision in t h e m at ter and prior t o Deer/ M t
. Judea’s filing of

an am e nded com p laint ; t herefore, Fort Sm it h c l aim s, n o prejudice t o t he current part ies would result

. Deer/ Mt

. Judea responds that Fort Sm it h o ffers no explanat ion for it s t hree-year delay in seeking t o int e rvene in t he case. Moreover, it cont ends, Fort Sm it h has n o int erest t o be prot ect ed because Deer/ Mt

. Judea’s suit is an individual o ne, lim it ed to t he n eeds of D eer/ Mt

. Judea. It i s not a class act ion, D e er/ Mt

. Judea avers, and for t his reason, it s c ase will have no

res judicat a effect on F ort Sm it h. Nonet he l e s s , Deer/ Mt

. Judea assert s t hat any int erest claim e d by Fort Sm it h is adequat ely prot ect ed by t he exist ing part ies. Rule 24(a) of t he Arkansas Rules of Civil Procedure governs int ervent ion of right and provides: U pon t i m ely applicat ion anyone shall be p erm it t ed t o int ervene in an act ion: (1) when a st at ut e of t his st at e confers an uncondit ional right t o i nt ervene; or (2) when t h e app l i c a n t claim s an int erest r elat ing t o t he propert y or transact ion which is t he subject of the ac t i o n a n d h e is so sit uat ed t hat the disposit ion of the act ion m ay as a pract ical m a t t er i m pair or im pede his abilit y t o prot ect that int erest , unless t he applicant ’s int e rest is adequat ely represent ed by exist ing part ies. Ark. R. Civ. P. 24(a) (2014). A t hreshold quest ion in d et erm ining whet her int ervent ion shall be allowed under eit her Rule 2 4(a) is whet her applicat ion was m ade in a t i m ely manner. See K elly v. E state of E dwards , 2009 A rk. 78, 312 S.W.3d 316. The issue of t im eliness i s a m at t er well wit hin t he sound discret ion of t he circuit court and is subject t o reversal only where that discret ion has been abused. See i d

. Tim eliness i s t o be det e rm ined f rom all t he circum st ances, and t here are t hree fact ors t hat a circuit court m ust consider: (1) how far have t he proceedings
6Cit e as 2014 Ark. 486

progressed; (2) h as t here been any prejudice t o ot her part ies caused by the delay; and (3) what

was t he r ea s o n f

o r t h e delay. See id

. In order t o overt u rn t he circuit court ’ s denial of int ervent ion on t he ground of t im eliness, F ort Sm it h m ust dem onst rat e t hat t he c ourt abused it s discret i on by making a judgm ent call t hat was arbit rary or groundless. See E mployers Nat’ l Ins. Co. v. Grantors t o th e Diaz Refinery PRP Comm. Site Trust , 313 Ark. 6 45, 855 S.W.2d 936 (1993). This it has not done. Wit h respect t o t he progression o f t h e proceedings, t he circuit court observed t hat a
t h ree-year delay had occurre d

. Indeed, Deer/ Mt

. Judea f iled it s init i al com plaint on Decem ber 3, 2010, and Fort Sm i t h did not file it s int ervent ion m o t ion u nt il February 12, 2014—a m ore t han t hree-year delay. During t hat delay, c ert ain claim s of Deer/ Mt

. Judea

were dism issed, sum m ary judgm e nt was grant e d o n anot her, and an appeal was t aken. 3 Delay in assert ing a right is obviously a crit ical fact or. S ee McLane Co. , Inc. v. Davis , 342 Ark. 655, 33 S.W.3d 473 (2000); Cupples Farm P’ s h ip v. Forrest City Prod. Credit Ass’ n , 310 Ark. 597, 839 S .W.2d 187 (1992). We t h ink t his holds especially t rue when the subject o f t he lit igat i on is const ant ly evolving legislat ion and it s effect on a sm all, rural individual school dist rict

. Along t hose sam e lines, prejudice t o Deer/ Mt

. Judea and the S t at e Defendant s is
cert ainly a concern. T h e focus of t he l it igat ion i s already w ell-est a b l i s h e d a nd pert ains t o a single dist rict

. It i s an individual lawsuit and n ot a c lass act ion, as w as t he case in t he sem inal Lak e View lit igat i o n . S e e L a k e View Sch

. Dist. N o. 25 v. H

uck abee , 351 Ark. 31, 91 S.W.3d

3 I ndeed, p rior t o our d e cision i n Deer/ Mt. Judea , 2013 A rk. 393, 430 S .W.3d 29, yet anot her appeal had been dism i ssed. See Deer/ Mt. Judea Sch

. Dist. v. B eebe , 2012 Ark. 93. 7Cit e as 2014 Ark. 486

472 (2002) (not ing cl a s s cert ificat ion), mandate recalled by Lak e View S ch

. Dist. No. 25 v. Huck abee , 355 Ark. 617, 142 S.W.3d 643 (2004) (per curiam ). Fort S m it h alleges t hat it has

concerns t hat have not b een assert ed and will not be addressed by Deer/ Mt

. Judea’s lit igat ion. Even if that allegat ion were t rue, we would be hard-pressed to see how a m o re-t han-t hreeyear delay in t h e addit ion of new claim s t o a l awsuit involving funding legislat ion and it s effect on a single school dist rict would not be prejudicial t o t he part ies already present

. Finally, Fort S m it h ’s just ificat ion for it s d elay sim ply does not wit hst and scrut iny. Fort Sm it h claim s t h at it t im ely filed it s m o t ion aft er our d eci s i on i n Deer/ M t. Judea , 2013 A rk. 393, 430 S.W.3d 2 9, b ecause t hat decision “m ade c lear t hat , u pon [Fort Sm it h’s] f ailure t o do
so, [it ] risked b e in g b o u n d b y a d e c i sion in a case t o which [it was] n ot a part y.” That posit ion, however, sim ply holds no wat er. The claim s m ade b y Deer/ M t
. Judea that we held

were barred by r es judicat a were b arred because t h e claim s could h a ve b een l it igat ed in t he Lak e View cases. See Deer/ Mt. Judea , 2013 A rk. 393, 430 S.W.3d 29. T hose claim s could have been lit igat ed by D e er/ Mt

. Judea i n t hose case s because, as already set fort h, t he Lak e View case was a class-act i on suit , “which included all school dist rict s in t he st at e.” 351 A rk.
at 43, 91 S.W.3d at 478. In cont rast , t he inst ant m at t er was b rought by Deer/ Mt

. Judea by and for it self and is not a class-act ion. To t hat end, Fort Sm it h would not be subject t o t he doct r ine of res j udicat a as i t r elat e s t o t he disposit ion of Deer/ Mt

. Judea’s com plaint

. 4 S ee,

4 F ort Sm it h’s addit ional claim that w it h out i nt ervent ion it could be subject t o st are decisis is speculat ive at best and an insufficient r eason t o allow int ervent ion as a m at ter of right in t his case. See B illabong Prods. , Inc. v. O r a n g e C i ty B ank , 278 Ark. 206, 644 S.W.2d 594 (1983). 8Cit e as 2014 Ark. 486

e. g . , UHS of Ark ansas, Inc. v. City of Sh erwood , 296 Ark. 97, 103, 752 S.W.2d 36, 39 (1988) (“One who does not int ervene, w het h er or not by r ight , is not at risk of being bound by t he lit igat ion and is not subject t o res judicat a.”). The object ive of our rules of procedure is t he o rderly and e f f i c i e n t resolut ion of disput e s. See Employers Nat. Ins. , 3 13 Ark. 645, 855 S.W.2d 936. See also Ark. R. Civ. P. 1 (2014). “In order t o accom plish t his m i ssion, t rial court s a r e a c co r ded d iscret i o n, wit h in reasonable lim it s, t o require t im ely act ion and t o deny effort s which would frust rat e t he achievem ent of those goals.” E mployers Nat. Ins. , 313 Ark. at 652, 855 S.W.2d at 940. Given
t h e fact s and circum st ances of t his case, w e cannot say t hat t he circuit court abused it s discret ion in denying t he m ot i on for int ervent ion as u nt im ely. B e cause we affirm t he circuit
court ’s order on t he basis of u nt im eliness, we need not address t he rem ainder of Fort Sm it h’s
argum ent
. S ee, e. g. , K

elly , 2009 Ark. 78, 312 S.W.3d 316; B allard v. Garrett , 349 Ark. 371, 78 S.W.3d 73 (2002). Affirm ed. Th ompson and Llewellyn, P. A. , by: W illiam P. Th ompson and James M. Llewellyn, Jr. , for appellant s. Joh n C. Fendley, Jr. P. A. , by: Clay Fendley ; and Lewellen & Associates , by: Roy C. “B ill” Lewellen , for appellees.

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