Kimberly "Shelly" R. Redwine v. Kevin Wade Coursey & Tiffany Phillips

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Cite as 2021 Ark. App. 417
2023.07.13 ARKANSAS COURT OF APPEALS
11:39:24 -05'00' DIVISION I
2023.003.20244
No. CV-19-307

KIMBERLY “SHELLY” R. REDWINE
Substituted Opinion Delivered October 27, 2021
APPELLANT/CROSS-APPELLEE

V. APPEAL FROM THE SHARP
COUNTY CIRCUIT COURT
KEVIN WADE COURSEY [NO. 68DR-16-113]
APPELLEE/CROSS-APPELLANT
HONORABLE KEVIN KING, JUDGE
TIFFANY PHILLIPS
CROSS-APPELLEE REVERSED; CIRCUIT COURT
ORDER VACATED

PHILLIP T. WHITEAKER, Judge

The appellant, Kimberly Redwine, appeals the judgment of the Sharp County

Circuit Court imposing a constructive trust in favor of the appellee, Kevin Coursey, based

on unjust enrichment. Coursey cross-appeals from the circuit court’s denial of his claim that

a certain deed was delivered. We agree with Redwine’s first argument on appeal and hold

that the circuit court lacked subject-matter jurisdiction. Accordingly, we reverse and vacate

the circuit court’s order. 1

For purposes of this opinion, we provide the following background information.

Redwine and Coursey started dating in the latter part of 2007 and later began living

together. In 2009, while the parties were living together, Redwine acquired approximately

1
Given our disposition of this appeal, we do not address any arguments raised in the
cross-appeal.
fifty-eight acres in Sharp County titled solely in her name. She obtained a construction loan

from the Bank of Cave City with Coursey as a guarantor on the note. The parties

constructed a home on the property. The home was completed in June 2010, and the parties

jointly resided there until May 2016.

On May 17, 2016, Redwine filed a petition for an order of protection against

Coursey in the Sharp County Circuit Court under the Domestic Abuse Act. 2 The cause of

action was assigned docket number DR-2016-113. Once initiated, the circuit court granted

an ex parte order of protection and subsequently entered a final order of protection on June

6, 2016. 3 Pursuant to both orders, Coursey was excluded from Redwine’s residence, the

shared residence of the parties.

On February 6, 2017, Coursey filed a pleading styled “Modification of Order of

Protection and Complaint in Replevin and for Dissolution of Partnership” under docket

number DR-2016-113. Coursey sought to recover certain listed personal property. He also

asserted a partnership property interest in Redwine’s residence and in the fifty-eight-acre

tract on the basis of the party’s nine-year cohabitation and their agreement to hold the

property as partners. He requested that the property be ordered sold and the proceeds

divided equally. Because Coursey filed his pleading within docket number DR-2016-113

2
Under the Domestic Abuse Act, no initial filing fees or service costs are required.
Ark. Code Ann. § 9-15-202(a)(1) (Repl. 2020).
3
On June 24, 2016, the circuit court modified the final order to allow certain items
of personal property apparently belonging to a third party to be removed from the home.

2
seeking to modify a final order of protection, he did not pay a filing fee with the circuit

clerk. 4

Coursey would later amend his complaint several times to add additional claims. 5

Redwine answered the initial complaint and each amendment, denying the material

allegations concerning Coursey’s purported interest in the real estate and asserting certain

affirmative defenses such as judicial estoppel, the statute of frauds, the statute of limitations,

and laches. She also filed a counterclaim seeking to replevin items of personal property. At

no point did Redwine object to the circuit court’s jurisdiction.

After a bench trial, the circuit court entered both a decree and a judgment that denied

relief based upon actual or constructive delivery of the alleged deed from Redwine to

Coursey. The court imposed a constructive trust, however, based on its finding that

Redwine would be unjustly enriched if Coursey did not receive an interest in the property.

This appeal and cross-appeal followed.

In her first point on appeal, Redwine argues that the circuit court lacked subject-

matter jurisdiction. She asserts that because the court did not have jurisdiction, the judgment

imposing the constructive trust is void. We agree.

4
On appeal, Redwine argues that Coursey did not pay a separate filing fee. Coursey
does not dispute this assertion.
5
Coursey asserted that Redwine had executed and delivered a deed conveying a one-
half interest in the property to him; he added Redwine’s daughter Tiffany Phillips as a
defendant after Redwine executed a deed conveying the property to both herself and
Phillips as joint tenants with right of survivorship; and he sought the imposition of a
constructive trust.

3
Subject-matter jurisdiction is the power of the court to hear and determine the

subject matter in controversy between the parties. Stan v. Vences, 2019 Ark. App. 56, 571

S.W.3d 24. Subject-matter jurisdiction cannot be conferred on a court by consent of the

parties or by waiver. Id. This court has made it clear that subject-matter jurisdiction is always

open, cannot be waived, can be questioned for the first time on appeal, and is a matter this

court is obliged to raise on its own when the parties do not. Id.

Here, Redwine initiated the original cause of action against Coursey by seeking a

domestic-abuse order of protection. The court granted her that relief in a final order from

which no appeal was taken. Coursey subsequently filed pleadings under the domestic-abuse

docket number seeking relief on issues that did not pertain to domestic abuse. Both the

Domestic Abuse Act and the Arkansas Rules of Civil Procedure prohibit such action.

Arkansas Code Annotated section 9-15-202(a)(2) prohibits the assertion of a claim or

counterclaim for other relief under the Domestic Abuse Act. More pointedly, Arkansas Rule

of Civil Procedure 3(d) directs:

No other claim or counterclaim for relief, including without limitation,
divorce, annulment, separate maintenance, or paternity, shall be asserted in an action
filed under the Domestic Abuse Act, Ark. Code Ann. § 9-15-101 et seq., but a
separate action seeking other relief shall be filed, and the clerk shall assign a new case
number and charge a filing fee unless the filing fee is waived pursuant to Rule 72 of
these rules.

Redwine asserts that Coursey did not file a separate complaint; that his complaint was not

given a mandatory new, separate docket number; and that he did not pay a filing fee or have

his filing fee waived. Therefore, she argues, the circuit court acquired no jurisdiction. See

Burnham v. Price, 2018 Ark. App. 410, 558 S.W.3d 402.

4
Coursey contends that the issue is not jurisdictional but procedural and maintains

that because it is procedural, Redwine needed to make these arguments below to preserve

them on appeal. It is undisputed that she did not make these arguments below, and Coursey

claims that she is therefore barred from raising them now for the first time on appeal. We

disagree.

Arkansas Code Annotated section 16-58-101(a) (Repl. 2005) requires the payment

or waiver of a filing fee before a civil action will be filed. Likewise, Arkansas Rule of Civil

Procedure 3(a) states that a “civil action is commenced by filing a complaint with the clerk

of the court who shall note thereon the date and precise time of filing.” Our supreme court

has held that the filing of a complaint and the payment of a filing fee are prerequisites to the

circuit court’s acquisition of jurisdiction. See Ward v. Hutchinson, 2018 Ark. 270, at 5, 555

S.W.3d 866, 868 (“A circuit court acquires jurisdiction over a cause of action when a

complaint is filed with the circuit clerk. The payment of a filing fee, or waiver of that fee

pursuant to Rule 72 of the Arkansas Rules of Civil Procedure, is required before a civil

action will be filed.”) (internal citations omitted).

Because Coursey never paid a filing fee, his case was never “filed,” and the circuit

court never acquired jurisdiction. Ward, supra. We therefore hold that the circuit court

lacked subject-matter jurisdiction to adjudicate Coursey’s claims. When a circuit court acts

without jurisdiction, its orders and judgments are void. Id. When the circuit court lacks

subject-matter jurisdiction, the appellate court also lacks subject-matter jurisdiction. Priest v.

Polk, 322 Ark. 673, 912 S.W.2d 902 (1995); McGraw v. Crowden, 2018 Ark. App. 510, 562

S.W.3d 888. We therefore reverse and vacate the circuit court’s order.

5
Reversed; circuit court order vacated. 6

GRUBER and VAUGHT, JJ., agree.

Blair & Stroud, by: Barrett S. Moore, for appellant/cross-appellee Kimberly Redwine

and cross-appellee Tiffany Phillips.

Murphy, Thompson, Arnold, Skinner & Castleberry, by: A. F. “Tom” Thompson III and

Kenneth P. “Casey” Castleberry, for appellee/cross-appellant Kevin Coursey.

6
See Ward, supra.

6