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ARKANSAS COURT OF APPEALS DIVISION III No. CV-14-457

PAUL ANTHONY GRAVER Opinion Delivered December 17, 2014

APPELLANT APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, V. SIXTH DIVISION [NO. 60CV-13-3913]

CITY OF ALEXANDER, ARKANSAS HONORABLE TIMOTHY DAVIS FOX, JUDGE APPELLEE APPEAL DISMISSED

DAVID M. GLOVER, Judge

Paul Graver challenges the trial court’s January 27, 2014 order finding him in contempt

for selling a fire truck. He contends that the trial court erred in holding him in contempt

because 1) it was without jurisdiction for lack of service, 2) it was without jurisdiction due to

forum selection, and 3) the temporary restraining order preventing him from selling the fire

truck had expired and the subsequent order was a legal nullity. The contempt order is the

only action by the trial court that is challenged in this appeal. The underlying actions from

which the contempt order arose are still ongoing. Our jurisdiction is pursuant to Rule

2(a)(13) of our Rules of Appellate Procedure–Civil. Because the terms of the contempt order

have been fulfilled, rendering moot Graver’s challenge to the contempt order, we dismiss this

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The contempt order arose in the context of a petition for declaratory judgment and

supplemental relief filed in Arkansas by an Oklahoma bank against The City of Alexander

(City), Paul Graver d/b/a First Government Lease Company (Graver), and an individual

named Lance Dominque. The bank sought a declaration of its rights pursuant to a lease-

purchase agreement concerning the construction of a fire station in the City. In the course

of those proceedings, the City filed a cross-complaint against Graver on October 21, 2013,

concerning a lease-purchase agreement by which the City was also purchasing a fire truck for

approximately $74,000. Graver and the City had entered into the agreement on May 15,

2008, and on or about October 11, 2013, with a remaining balance of approximately $7,000,

Graver had repossessed the fire truck. On October 25, 2013, the trial court entered an ex

parte order of delivery and restraining order, which ordered Graver to return the fire truck

and enjoined him from selling or encumbering it. The order also set a hearing date of

November 4, 2013. On November 4, 2013, the hearing was held, and the court further

ordered from the bench that Graver return the fire truck to the City and refrain from selling

or encumbering it in any fashion. Graver sold the fire truck to Deep South Fire Trucks on

November 14, 2013, for $54,000.

Thereafter, on January 27, 2014, following a hearing on the City’s contempt motion,

the trial court found Graver in contempt and ordered him held in the detention facility until

he 1) provided a copy of the title to the fire truck showing its transfer to Deep South Fire

Trucks, 2) provided a copy of the check evidencing payment to Graver by Deep South for

the fire truck, and 3) delivered to the circuit clerk a cashier’s check in the amount of $54,000

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for deposit into the court’s registry. Graver purged himself of the contempt on the same date,

as evidenced by the “speed letter” sent from the circuit clerk to the detention facility,

informing the facility that Graver was to be released immediately—that he had purged himself

of the contempt issue.

Where the terms of a contempt order have been fulfilled, the issue of the propriety of

the contempt order is generally considered moot. Clampitt v. Geurin,

.

In Swindle v. State,

,

(2008), our supreme court

further explained:

The general rule regarding contempt orders is that where the terms of a contempt order have been fulfilled, the issue of the propriety of the contempt order is moot. . . .

This court has recognized two exceptions to the mootness doctrine. The first one involves issues that are capable of repetition, yet evade review, and the second one concerns issues that raise considerations of substantial public interest which, if addressed, would prevent future litigation. Ordinarily, mootness resolves the controversy and renders a decision unnecessary. But that choice is ours to make and where consideration of an issue that is capable of repetition, yet evades review, is present, we may elect to settle an issue, even though moot.

(Citations omitted & emphasis added.)

We note that neither party raised the mootness doctrine in their briefs, so we have no

discussion regarding why it should not apply here, yet it is our responsibility to apply the

mootness doctrine where it is applicable even when the parties have not addressed that

concern. Here, there is no question that Graver fulfilled the terms of the contempt order,

which brings this case under the general rule that thereby renders it moot. In resolving this

appeal, we considered whether the exceptions set forth in the Swindle case apply, i.e., whether

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this case involves issues that are capable of repetition, yet evade review, or whether it raises

considerations of substantial public interest, which, if addressed, would prevent future

litigation. We conclude that neither of those exceptions applies here.

We further considered whether we should adopt a third exception to the general rule

in cases where the contempt order is challenged as being void ab initio for an alleged lack of

personal jurisdiction or whether we should certify to our supreme court the advisability of

adopting that option. We rejected those avenues as well. We have determined that creating

a new exception to the mootness doctrine in this case in order to decide the jurisdictional

issues raised by Graver, which remain at issue in the underlying actions in circuit court, would

be ill-advised. The record before us on the jurisdictional issues and the trial court’s decisions

regarding them was not fully developed in the context of the contempt hearing. We do not

have a satisfactory lower-court decision to review on issues of such importance to the

underlying actions, and creating a new exception to do so would be fruitless. The merits of

the jurisdictional arguments raised by Graver are better addressed by the trial court in the

context of the ongoing actions. Thereafter, if a subsequent appeal is pursued, we will be

better equipped to decide those issues on a more fully developed record and lower-court

decision.

Appeal dismissed.

GRUBER and VAUGHT, JJ., agree.

Pinnacle Law Firm, PLLC, by: Matthew D. Campbell, for appellant.

Fuqua Campbell, P.A., by: David M. Fuqua; and John L. Wilkerson, for appellee.

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