Steinbuch v. Univ. of Ark.

2023 Ark. 163

677 S.W.3d 199

Robert STEINBUCH, Appellant

v.UNIVERSITY OF ARKANSAS a/k/a University of Arkansas-Little Rock; the Trustees of the University of Arkansas ; Michael Schwartz, in His Official and Personal Capacity; Theresa Beiner, in Her Official and Personal Capacity; JoAnn Maxey, in Her Official Capacity; John M.A. Dipippa, in His Official Capacity; Velmer Burton, in His Official Capacity; and Terri Hollingsworth, in Her Official Capacity as Pulaski County Clerk, Appellees

No. CV-23-51

Supreme Court of Arkansas.

Opinion Delivered: November 9, 2023

Corbitt Law Firm, PLLC, North Little Rock, by: Chris P. Corbitt, for appellant.

Adam Fogleman, Veletta Smith, Frank W. Jenner, Little Rock, and Dominique Lane, Pulaski County Attorney's Office, for appellee Terri Hollingsworth.

BARBARA W. WEBB, Justice

Appellant Robert Steinbuch appeals the Pulaski County Circuit Court's order denying his motion for order to waive record fees in a Freedom of Information Act (FOIA) lawsuit against the University of Arkansas at Little Rock (UALR). For reversal, Steinbuch argues the Pulaski County Circuit Clerk's fee for preparing the record in Case No. 60CV-15-5690 violated Arkansas law. We affirm.

This matter stems from a FOIA action brought by Steinbuch, a law professor at UALR, against the University. In 2015, Steinbuch filed a complaint in

Case No. 60CV-15-5690 in the Pulaski County Circuit Court, alleging FOIA violations against UALR. In 2018, the circuit court dismissed the FOIA claim with prejudice because the parties had reached a settlement on that claim. Steinbuch later moved to set aside the 2018 order on the grounds that the University had violated the negotiated settlement. The circuit court denied the motion, and Steinbuch attempted to appeal. That appeal was ultimately dismissed in Case No. CV-20-495 following this court's denial of Steinbuch's motion to file a belated appeal.

With respect to his appeal of the order denying the motion to set aside, Steinbuch filed a motion to waive record fees wherein he alleged Pulaski County Circuit Clerk Terry Hollingsworth had sent an $800 invoice for preparation of the record. He argued the fee assessed by Hollingsworth violated Arkansas law. The circuit court denied the motion without making any findings, and Steinbuch appealed. We did not address the merits of Steinbuch's claims but instead remanded with instructions to join Hollingsworth as an indispensable party pursuant to Arkansas Rule of Civil Procedure 19, conduct a hearing on the record-fees issue, and enter an order containing findings of fact. Steinbuch v. Univ. of Ark. , 2021 Ark. 99, at 4, 2021 WL 1685773.

Steinbuch subsequently filed a second motion in the circuit court to waive record fees. Hollingsworth was added as a party and filed an answer and response to the motion. The circuit court denied the motion to waive record fees, treating it as a third-party complaint. The order was again without findings. Steinbuch filed a timely appeal, which this court dismissed. Steinbuch v. Univ. of Ark. , 2022 Ark. 74, at 7, 2022 WL 1042969. We concluded that the circuit court's order was a not a final, appealable order because the circuit court had not yet acted on our mandate's directive to conduct a hearing and enter specific findings. Id.

Thereafter, Hollingsworth undertook discovery in the form of interrogatories and requests for production to determine the basis for Steinbuch's allegations. Based on evidence produced during discovery, Hollingsworth moved for summary judgment, asserting, in part, that the clerk's office had not prepared any record or transcript for Case No. 60CV-15-5690.

The circuit court held a hearing on the motion to waive record fees pursuant to this court's mandate. At the hearing, Steinbuch did not present any testimony or evidence. Hollingsworth entered five exhibits into evidence. After taking the matter under advisement, the circuit court entered an order containing findings of facts and conclusions of law. The circuit court denied the motion to waive record fees, finding that the fee for preparing the record was lawful under Arkansas Code Annotated section 21-6-402 (Repl. 2022). The circuit court also denied Hollingsworth's motion for summary judgment. Steinbuch now appeals.

We first address Hollingsworth's contention that no justiciable controversy exists between the parties. She contends Steinbuch never requested and never received a copy of the record at issue from the circuit clerk's office. Rather, Steinbuch made arrangements with the court reporter for the record.

Whether a justiciable controversy exists is reviewed de novo on appeal. See Thurston v. Safe Surgery Ark. , 2021 Ark. 55, at 11, 619 S.W.3d 1, 9. A justiciable controversy is one in which a claim of right is asserted against one who has an interest in contesting it. Palade v. Bd. of Trs. of the Univ. of Ark. Sys. , 2022 Ark. 119, at 7, 645 S.W.3d 1, 5.

In this appeal, Steinbuch complains of an invoice from the circuit clerk for $834.80 for preparation of the record in connection with his appeal of the motion to set aside.¹ The record for this appeal, however, reveals (1) that Steinbuch made arrangements with court reporter Denise Mack for the record; (2) that Mack prepared the record; (3) that Mack sent an invoice of...