                                  Cite as 2014 Ark. App. 214

                       ARKANSAS COURT OF APPEALS
                                     DIVISIONS III & IV
                                       No. CV-13-607


                                                   Opinion Delivered April   2, 2014
JASON HEARST
                                APPELLANT          APPEAL FROM THE FAULKNER
                                                   COUNTY CIRCUIT COURT
V.                                                 [No. 23CV-10-911]

BILLY PAUL BAKER, INDIVIDUALLY                     HONORABLE MICHAEL A. MAGGIO,
AND IN HIS OFFICIAL CAPACITY AS                    JUDGE
CHIEF OF POLICE FOR THE CITY OF
MAYFLOWER, ARKANSAS                                SUBSTITUTED OPINION ON DENIAL
                        APPELLEE                   OF REHEARING; AFFIRMED



                                LARRY D. VAUGHT, Judge

       On February 18, 2014, appellant filed a petition for rehearing. The court denies the

petition, but issues this substituted opinion to correct a factual misstatement in the procedural

history of the case.

       Appellant Jason Hearst filed a complaint against appellee Billy Paul Baker, the Chief of

Police of Mayflower, Arkansas, contending that Baker arrested Hearst (allegedly without cause)

for domestic battery and placed him in jail although Baker had knowledge that Hearst suffered

from a medical condition that required a completely sterile environment. Following the

incident, Hearst claimed that he became infected and had to be hospitalized and suffered

medical expenses and emotional distress. He filed suit against Baker seeking compensatory and

punitive damages. Baker answered denying the claims and asserting the defense of statutory

immunity. Baker also filed a motion for summary judgment.
                                     Cite as 2014 Ark. App. 214

        On February 6, 2013, Hearst filed a motion (under Arkansas Rules of Civil Procedure

Rule 41) asking that his suit be dismissed without prejudice. An order was entered the same day

granting the relief that Hearst requested. Also on February 6, 2013, Baker responded to the

dismissal motion, claiming that it should be denied and that summary judgment should be

granted in his favor based on Hearst’s failure to respond to Baker’s summary-judgment motion.

In the alternative, Baker requested that Hearst be required to reimburse him for all costs

associated with the case and that any refiling be stayed until such costs were paid. On March

25, 2013, the court entered an amended order of dismissal, vacating its earlier dismissal order

and denying Hearst’s motion. The court then granted Baker’s unopposed summary-judgment

motion and dismissed the suit with prejudice. On April 18, 2013, Hearst filed a timely notice

of appeal with our court arguing that the court erred in vacating his dismissal order and

dismissing his suit with prejudice. We find no error and affirm.

        A plaintiff has a right to voluntarily nonsuit a case before the final submission of the

case to the jury (or a trial court sitting as finder of fact). Beverly Enters.-Arkansas, Inc. v. Hillier,

341 Ark. 1, 4, 14 S.W.3d 487, 488 (2000). However, the failure to respond to a motion for

summary judgment impacts that absolute right. In Wright v. Eddinger, our supreme court held:

        Although the case was submitted on motions for summary judgment, an adverse ruling
        to the plaintiff would finally dispose of the case. Consequently, we hold the case had
        been submitted to the court.

320 Ark. 151, 156, 894 S.W.2d 937, 940 (1995). Therefore, once Baker’s summary-judgment

motion was filed and there was no timely response, the case was “submitted” to the court.




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                                   Cite as 2014 Ark. App. 214

Additionally, when a plaintiff files a motion for voluntary nonsuit after the submission of the

case, the court can (in its discretion) grant or deny the motion. Ark. R. Civ. P. 41(a) (2013).

       Hearst had twenty-one days in which to respond to Baker’s summary-judgment motion,

and he failed to do so. Ark. R. Civ. P. 56(c)(1) (2013). Hearst also failed to request an extension

to respond to the motion. Therefore, once the summary-judgment motion was filed and Hearst

failed to timely respond, his absolute right to a nonsuit was exhausted. Because the trial court

was within its discretion in its denial of Hearst’s request to voluntarily nonsuit his claims against

Baker, we affirm.

       Affirmed.

       HARRISON, WYNNE, GRUBER, GLOVER, and WHITEAKER, JJ., agree.



       Robert A. Newcomb, for appellant.

       John L. Wilkerson, for appellees.




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