Cite as 2026 Ark. App. 100
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-24-444
JUDD WALKER Opinion Delivered February 18, 2026
APPELLANT
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
V. SIXTEENTH DIVISION
[NO. 60CV-22-7190]
JARED COLEMAN, TYLER PIERCE,
TOM JONES, AND MIKE KELLEY HONORABLE MORGAN E. WELCH,
APPELLEES JUDGE
AFFIRMED
RAYMOND R. ABRAMSON, Judge
The Pulaski County Circuit Court dismissed Judd Walker’s (Walker’s) complaint for
(1) failing to join indispensable parties under Arkansas Rule of Civil Procedure 12(b)(7) and
(2) failing to state a claim upon which relief can be granted under Arkansas Rule of Civil
Procedure 12(b)(6). The circuit court also found that the claims of unjust enrichment and
promissory estoppel were outside the protection of the savings clause and thus were outside
the statute of limitations. On appeal, Walker argues that the circuit court erred when it
dismissed his complaint because (1) Bluefin Development, LLC; Ridgebury Development,
LLC; Jcampbell615, LLC; Illenium, LLC; and MK14, LLC (collectively, “the entities”),
were not indispensable parties; (2) the claims for unjust enrichment and promissory estoppel
were saved by Arkansas Code Annotated section 16-56-105; and (3) Walker had stated a
claim upon which relief can be granted. We affirm.
I. Background
According to Walker’s complaint, Walker and the appellees agreed to form a
partnership. In early 2018, Tom Jones and Mike Kelley joined together to advance the
interest of Gas Express, LLC, one of the largest multistate Circle K franchises in the United
States, into other states, including Arkansas. To make this work, Jones and Kelley brought
in Walker and Blake Smith to form a real estate development venture. Walker was
responsible for identifying potential development sites, and it was determined that his real
estate business acumen would be essential to the project. Smith was mainly responsible for
raising the capital needed for the projects.
On March 13, 2018, Jones met with Smith and Walker and expressed his desire to
form a partnership in order to advance the venture. For the next year, Walker devoted a
large portion of his time to this venture. Walker alleges that his involvement was significantly
more than any other Arkansas-based participant during this period. Smith left the venture
and was replaced by Tyler Pierce who, with the approval of the other parties, brought on
Jared Coleman. Throughout 2018, the parties referred to each other as partners. Walker
acknowledges that the lease agreements with Gas Express were signed by Bluefin
Development, LLC, around September.
Walker alleges that Jones informed the others that they needed to create a holding
company. Walker concedes that the parties agreed to form an LLC for the purpose of
formalizing their oral partnership agreement. Coleman created, signed, and filed the
necessary documentation to create Bluefin Development, LLC. On September 13, Jones
sent an email informing the parties to “go ahead and execute the Bluefin Operating
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Agreement.” All the parties were involved in the creation of the Bluefin Development
website and were identified as partners on the website. Additionally, all parties approved
and received business cards as partners in Bluefin Development, LLC, and the parties were
working to receive group health insurance through Bluefin Development, LLC.
In August 2018, Coleman sent the parties the proposed operating agreement. In the
operating agreement, the “members” were not listed individually but as the LLCs each
individual member had created, including JB Walker, LLC. JB Walker, LLC’s, membership
interest was set at 13.33 percent. Walker found this unacceptable and refused to sign, noting
his interest in continuing to negotiate considering the work he had already completed.
Walker alleges that following his refusal to sign the agreement, the remaining members
conspired to exclude Walker from the partnership, divvied up his ownership interest among
the remaining members, and enriched themselves at Walker’s expense. Specifically, Walker
alleges that without informing him, the remaining members executed a new operating
agreement with an effective date of November 19, 2018, that did not include Walker.
Despite executing the new operating agreement, the appellees continued to refer to
Walker as a partner of Bluefin Development. Unbeknownst to Walker, he was being
referred to as “Principal Broker” rather than “Partner” to outside businesses. Twice in
December, Walker asked to meet with Coleman to work out the percentages and finalize
an operating agreement. At no point was Walker informed of the operating agreement that
was already executed. Walker again requested to meet with Coleman to discuss an operating
agreement on January 2, 2019, at which point Coleman informed Walker that the other
partners had already executed an agreement that did not include Walker.
3
Walker did not take legal action immediately upon discovering the alleged fraud. On
February 15, Coleman and Pierce sued Walker, seeking declaratory relief; Kelley and Jones
joined the suit on August 9. On January 23, 2020, Walker filed a counterclaim alleging ten
claims: (1) breach of contract; (2) conversion; (3) breach of fiduciary obligations; (4) fraud;
(5) accounting; (6) declaratory judgment; (7) charging order; (8) theft by deception; (9) civil
conspiracy; and (10) punitive damages. 1 Walker’s counterclaim was only against the parties
individually and did not include any of the associated LLCs. On July 19, 2022, all parties
dismissed their claims without prejudice.
On October 19, 2022, Walker filed suit against the individual appellees but did not
include the LLCs. In his complaint, Walker alleged the initial ten claims from his
counterclaim and two additional claims: unjust enrichment and promissory estoppel. After
a convoluted procedural history, the case was in front of the Pulaski County Circuit Court,
where appellees moved to dismiss. After a hearing on the motion, the circuit court granted
the appellees’ motion, finding that Walker had failed to join indispensable parties and that
it was not feasible for the court to join them because the statute of limitations had already
elapsed. This appeal followed.
II. Requested Relief
Both in the circuit court and again on appeal, Walker argues that the entities are not
indispensable because he has never sought damages against the entities. Walker further
argues on appeal that “[his] Complaint did not seek any relief against the entities.” This
1
The complaint from the initial action and the associated countercomplaint are not part of the record before this court.
4
argument, however, is belied by the record. In his prayer for relief, Walker explicitly
requests the following:
WHEREFORE, the Plaintiff prays for judgment against the Defendants for
all damages allowed by law including, but not limited to compensatory
damages in an amount to be determined by a jury empaneled to try the issues
of fact in this case, in excess of the minimum amount required for federal
court diversity jurisdiction; for punitive damages against the Defendants for
the intentional torts described herein in an amount likewise to be determined
by a jury empaneled to try the issues of fact in this case; for an accounting for
all sums coming into the possession or under the control of the defendant
from March 2018 to the date of trial resulting from the business of the partnership
described herein and in Bluefin Development, LLC, and in all other entities created by
Defendants in furtherance of the partnership entered into by and between Judd Walker
and the Defendants; and for a charging order against the assets of Bluefin Development,
LLC, and all other entities created by Defendants in furtherance of the partnership
entered into by and between Judd Walker and the Defendants in order to secure that
the Plaintiff’s damages will be paid from the assets of those entities; for his cost and
fees herein; and for such other and further relief to which he may prove
himself entitled.
(Emphasis added.) Moreover, the entities and the formation of the entities form the
backbone of nearly every claim in his complaint. For example:
46. . . . Defendants promised Judd Walker that he would be a partner
in the partnership that resulted in Bluefin Development, LLC and all related
entities formed for the purpose of doing real estate for Gas Express stores.
58. The Defendants took or exercised dominion or control over Judd
Walker’s interest in Bluefin Development, LLC, and all other entities created
by Defendants in furtherance of the partnership entered into by and between
Judd Walker and the Defendants . . . .
64. The acts and conduct of the Defendants described in the preceding
paragraphs of this Complaint, including but without limitation the act of
forming Bluefin Development, LLC, without Judd Walker as an owner of a
portion of such limited liability company . . . .
5
67. As a partner in the partnership described herein and as the beneficial
owner of an interest in Bluefin Development, LLC, and all other entities
created by Defendants in furtherance of the partnership entered into by and
between Judd Walker and the Defendants, the Plaintiff is entitled to an
accounting from the Defendants of all income, expenses, profits, expenses,
and any other financial transactions engaged in by Bluefin Development,
LLC, the defendants, and all other entities created by Defendants in
furtherance of developing Gas Express sites and stores. . . .
69. A judicial issue exists between these parties involving the
ownership of Bluefin Development, LLC, any monetary interests Defendants
have from developing Gas Express sites 23 or stores, and all other entities
created by Defendants in furtherance of the partnership entered into by and
between Judd Walker and the Defendants. The Plaintiff is entitled to a
declaration from this Court, pursuant to Ark. Code Ann. § 16-11-101, et seq.,
and Rule 57, Ark. Rules Civ. Pro., to establish that Bluefin Development,
LLC, and all other entities created by Defendants in furtherance of the
partnership entered into by and between Judd Walker and the Defendants,
are and, at all material times, were owned 20% by Judd Walker.
84. The acts and conduct of the Defendants described herein constitute
a breach of fiduciary obligations owed to the Plaintiff, the conversion of the
Plaintiff’s interest in the partnership alleged herein and in Bluefin
Development, LLC, and all other entities created by Defendants in
furtherance of the partnership entered into by and between Judd Walker and
the Defendants, and a fraud perpetrated upon the Plaintiff. . . .
The dissent erroneously argues that Walker has “twice disclaimed any intention of
seeking relief from [the entities].” As explained, the record does not show that Walker was
abandoning the relief he sought against the entities; rather, it shows that Walker was arguing
that he never had any claims against the entities. Walker—and the dissent—are mistaken.
Furthermore, it is not the appellees’ burden to add the necessary parties for Walker.
6
III. Indispensable Parties
Walker’s first point on appeal is dispositive; accordingly, we do not address his
remaining points. Walker argues that the circuit court erred when it determined that the
entities were indispensable parties under Arkansas Rule of Civil Procedure 19(a). Rule 19(a)
states:
A person . . . shall be joined as a party in the action if (1) in his absence
complete relief cannot be accorded among those already parties, or (2) he
claims an interest relating to the subject of the action and is so situated that
the disposition of the action in his absence may (i) as a practical matter, impair
or impede his ability to protect that interest, or (ii) leave any of the persons
already parties subject to a substantial risk of incurring double, multiple or
otherwise inconsistent obligations by reason of his claimed interest. If he has
not been joined, the court shall order that he be made a party.
Our supreme court has held that the purpose underlying this rule is to ensure that “all
persons . . . who will be necessarily and materially affected by its result” shall “be made
parties to an action.” Nolan v. 2600 Holdings, LLC, 2024 Ark. 50, at 5–6, 686 S.W.3d 499,
502–03. The need to join an indispensable party cannot be waived. What is more, the circuit
court or appellate court must raise the issue sua sponte if necessary. Vibo Corp. v. State ex rel.
McDaniel, 2011 Ark. 124, 380 S.W.3d 411; Morgan v. Turner, 2010 Ark. 245, 368 S.W.3d
888.
This court has previously found an individual to be indispensable when the damages
sought were to come out of funds owned by that individual, even when the individual
himself was not a party to the actions. See Swindle v. Benton Cnty. Prosecuting Atty’s Off.,
2023 Ark. App. 98, 661 S.W.3d 682. In Swindle, an attorney sought to obtain an attorney’s
lien on restitution that had been awarded in a criminal case. The restitution belonged to
Mr. Saucedo, who had signed a contract that Swindle would represent him in any claim
7
that arose from a car crash incident. The car crash resulted in criminal charges against the
other party, which resulted in the award of the restitution for Saucedo. This court held that
Saucedo was an indispensable party under Rule 12(b)(7):
The plain language of Rule 19 demonstrates Mr. Saucedo is a necessary
party to this case because the restitution funds Swindle claims he has an
attorney’s lien on belong to Mr. Saucedo. If those funds are used to pay Swindle
pursuant to the lien, Mr. Saucedo’s “ability to protect that interest” is
impaired, and the appellees are “subject to a substantial risk of incurring . . .
inconsistent obligations by reason of his claimed interest.” Ark. R. Civ. P. 19.
Swindle’s failure to join Mr. Saucedo as a necessary party warranted dismissal
under Ark. R. Civ. P. 12(b)(7).
Id. at 7, 661 S.W.3d at 687 (emphasis added).
The dissent’s reliance on Williams v. Sears, Robuck & Co., 355 Ark. 668, 144 S.W.3d
245 (2004), is misplaced. In Williams, our supreme court held that the third party was not a
necessary party because the case before it was a declaratory judgment of obligations under a
contract. Id. at 672, 144 S.W.3d at 248. The court specifically noted that the action before
it was not an ordinary cause of action, such as “an action to recover on the charge account,”
which could change its analysis. Id. at 673, 144 S.W.3d at 248. In the instant case, Walker’s
case is an ordinary cause of action and does seek to recover damages. Accordingly, Williams
is easily distinguishable from the instant case.
Further, Arkansas Code Annotated section 4-38-304 states that
A debt, obligation, or other liability of a limited liability company is solely the debt,
obligation, or other liability of the company. A member or manager is not personally
liable, directly or indirectly, by way of contribution or otherwise, for a debt,
obligation, or other liability of the company solely by reason of being or acting as a
member or manager. This subsection applies regardless of the dissolution of the
company.
8
Ark. Code Ann. § 4-38-304(a) (Supp. 2025). The entities are all limited liability companies. 2
Whether Bluefin was created to formalize the oral agreement to form a partnership is
irrelevant. Accordingly, any damages that Walker seeks from Bluefin Development, LLC,
and the other LLCs are “solely the . . . obligation . . . of the company.” Id. Therefore, the
damages sought by Walker are obligations of the entities and they are indispensable parties.
IV. Feasibility of Adding the Entities
Generally, when a plaintiff fails to join an indispensable party, the court should order
that the indispensable party be joined. Morgan, 2010 Ark. 245, at 14, 368 S.W.3d at 897.
“Only when the court determines that joinder is not feasible should the court consider
dismissing the action.” Id. We find that the circuit court did not err in determining that
joinder was not feasible in the instant case. Pursuant to Ark. Code Ann. § 16-56-126 (Repl.
2005), Walker was able to file a new action within one year of the entry of the order of
nonsuit without regard to the statute of limitations. Our supreme court has held that this
right extends to counterclaims. Linn v. NationsBank, 341 Ark. 57, 65, 14 S.W.3d 500, 505
(2000) (“Similarly, we hold that under [Ark. R. Civ. P.] 41, a defendant may once
voluntarily dismiss his or her compulsory counterclaim without prejudice to refile it within
one year.”). The savings clause in Rule 41, however, does not extend to compulsory
2
The dissent claims that it is not clear where the LLCs were organized. The Arkansas Secretary of State is required to keep business-entity records. Ark. Code Ann. § 4-26-1201(a)(4) (Repl. 2016). We take judicial notice that the information is required to be kept. See Falcon Cable Media LP v. Ark. Pub. Serv. Comm’n, 2012 Ark. 463, at 6, 425 S.W.3d 704, 708. A search of the publicly available information on the Arkansas Secretary of State website shows that, at the very least, Bluefin Development, LLC; Jcampbell615, LLC; and Illenium, LLC, are all organized in Arkansas. https://www.ark.org/corp-search/index.php (last visited Feb. 10, 2026).
9
counterclaims that parties should have asserted in the prior suit; only those compulsory
counterclaims that were asserted will be protected by Rule 41. Id.
Rule 13(a) of the Arkansas Rules of Civil Procedure provides that
[a] pleading shall state as a counterclaim any claim which, at the time of filing
the pleading, the pleader has against any opposing party, if it arises out of the
transaction or occurrence that is the subject matter of the opposing party’s claim and
does not require for its adjudication the presence of third parties of whom the
court cannot acquire jurisdiction. But the pleader need not state the claim if
(1) at the time the action was commenced the claim was the subject of another
pending action, or (2) the opposing party brought suit upon his claim by
attachment or other process by which the court did not acquire jurisdiction
to render a personal judgment on that claim, and the pleader is not stating any
counterclaim under this Rule 13.
(Emphasis added.) The purpose of this rule is to require parties to present all existing claims
simultaneously to the court or be forever barred, thus preventing a multiplicity of suits
arising from one set of circumstances. Est. of Goston v. Ford Motor Co., 320 Ark. 699, 898
S.W.2d 471 (1995); Bankston v. McKenzie, 288 Ark. 65, 702 S.W.2d 14 (1986).
Walker does not allege that he included claims against the entities in his initial
counterclaim. Therefore, it is only feasible to join these parties if the statute of limitations
has not already run. The statute of limitations is, at most, three years for Walker’s claims.
Ark. Code Ann. § 16-56-105 (Repl. 2005). According to Walker, he was informed of the
alleged fraud on January 2, 2019. Thus, the statute of limitations expired on Walker’s claims
on January 2, 2022. The instant case was filed on October 19, 2022, well after the statute
10
of limitations had run. Accordingly, it was not feasible to join the entities because the statute
of limitations had run already, and section 16-56-105 did not “save” those claims. 3
V. Conclusion
For the foregoing reasons, we affirm the circuit court’s dismissal of the case for failure
to join indispensable parties as required by Arkansas Rule of Civil Procedure 12(b)(7).
Affirmed.
TUCKER, WOOD, HIXSON, and MURPHY, JJ., agree.
HARRISON, J., dissents.
BRANDON J. HARRISON, Judge, dissenting. The majority conflates Rule
12(b)(6) and Rule 19 analyses and gives Judd Walker the short end of both sticks by
dismissing his timely damages claims against the people he sued—based on a merits defense
that could be raised by entities (limited liability companies) had he sued them, though he
did not. Not only did he not sue the LLCs, he has twice disclaimed any intention of seeking
relief from them. That doesn’t matter to the majority, but it should. Under the plain
language of Arkansas Rule of Civil Procedure 19, which we must read like a statute and
strictly abide, Nolan v. 2600 Holdings, LLC, 2024 Ark. 50, 686 S.W.3d 499, dismissal for
failure to join a necessary party must follow a two-step equitable analysis. Had the correct
analysis been done on this record, then it could only come out the other way: reverse the
dismissal and reinstate the operative complaint. By affirming, the majority undermines a
foundational part of the Arkansas Rules of Civil Procedure as well. I therefore dissent.
3
The dissent argues that we should require that this defense be raised below. We note that appellees explicitly argued that these claims are time-barred and not saved under the Arkansas savings statute in paragraph 11 of their motion to dismiss filed in the circuit court.
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The majority’s Rule 19 holding depends on two core legal assumptions, ones
unmoored from the law and practical considerations. First, it assumes that in a suit for
unliquidated damages a company the plaintiff chose not to sue is a “necessary party” under
Rule 19(a) if the named defendant can, solely on pleaded facts, persuade the circuit court
that an unsued company is at best a more appropriate defendant. Second, the majority
assumes that joining the company becomes “infeasible” under Rule 19(b)—and requires
dismissing the timely claims against everyone who was properly named and served—when
the limitations period to sue the company runs. I find no support for either assumption.
* * *
Walker alleged defendant Tom Jones enlisted him and others (including all the
named defendants) in a partnership to pursue an opportunity to develop and lease
convenience store sites to Gas Express, a major franchisor. Walker’s role was to identify the
sites. For more than a year, he did so—without pay and for the partnership’s benefit. The
parties’ efforts met success. Jones had negotiated the material terms of a lucrative franchise
agreement with Gas Express by 25 August 2018. That was done before the partners had
organized any entity to cash Gas Express’s checks. 1
Jones eventually suggested they organize an LLC; Walker himself picked the name
Bluefin Development, LLC (Bluefin). Walker, whose role out of office kept him replacing
shoe leather at the cobbler, was then kept in the dark on further discussions about ownership
percentages until moments before a scheduled meeting with a potential investor, Aaron
1
Although I would not address the Rule 12(b)(6) point where the circuit court has not done so, I find that timing point telling.
12
Peeples. Defendant Jared Coleman had organized Bluefin the previous day. He presented
Walker with this signature page, excerpted in the complaint:
Walker declined to sign. For one thing, according to an attached membership schedule, a
/s/ would have agreed to give Peeples a twenty percent interest in Bluefin before he had
even agreed to invest. Indeed, Peeples never invested; apparently he didn’t sign the
agreement either. Without telling Walker, the defendants reallocated the membership
interests that had been allocated to his and Peeples’s LLCs in that draft to their own LLCs
instead, effective 19 November 2018. Walker excerpted that signature page too:
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The defendants continued to refer to Walker as a partner, and let him work without pay on
their behalf, for weeks afterward. Catching a pattern here (as pleaded and presumed true)?
With the screenshot above, the reader knows everything we know about the
supposedly “necessary” LLCs. And already the facts weigh against dismissing under Rule
19. Even if the companies are legally separate from the defendants, they appear so closely
connected that the defendants themselves could prevent any harm to their interests. See
Ark. R. Civ. P. 19(b). For example, only the defendants (or LLCs they controlled) were
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alleged to own any interest in the LLCs. Second, the LLCs’ decisions were made by the
defendants themselves, who are shown above to be the LLCs’ managers. 2 We can assume
the defendants made decisions for the LLCs with respect to Bluefin in particular: they signed
its operating agreement as the LLCs’ managers.
Add that together and the Rule 19 argument was simply unpersuasive. No; it’s
worse. Walker has been unjustly deprived of a day in court much too soon. Why? Because
the named defendants were, to a man, the legal representatives and decisionmakers for the
LLCs whose absence they complained of. If it had presented a risk of inconsistent
obligations, the defendants could have brought the LLCs in with a third-party complaint to
determine all obligations at once. Ark. R. Civ. P. 14(a). They could have served that
complaint on themselves, no less! Ark. R. Civ. P. 4(f)(6) (allowing service on LLC
manager). Or they could have donned their manager hats and caused the LLCs to
intervene—as the nonparty LLC in Nolan tried desperately to do, in circuit court and on
appeal, when litigation between strangers actually threatened to prejudice its interests. Nolan,
2024 Ark. 50, at 10, 686 S.W.3d at 505 (Webb, J., concurring) (detailing nonparty’s attempts
to join and otherwise participate under Rules 19(a) and 24(a) in suit to cancel and claim its
marijuana cultivation license).
2
Or, in Jones’s case, “President.” Typically, in a manager-managed LLC, the manager has sole decision-making authority. Ark. Code Ann. § 4-38-407(c)(1) (“Except as expressly provided in this chapter, any matter relating to the activities and affairs of the company is decided exclusively by the manager[.]”).
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There is more the majority can’t and doesn’t know now, so it guesses while
essentially advocating on the allocation of liability between the LLCs and the defendants
without knowing:
1. When were the member LLCs organized?
2. Under what states’ laws were they organized?
3. What are the terms of their operating agreements?
Why is number 2 important, for example? Well, if the member LLCs were organized in
Arkansas, they were on notice of everything the defendants knew without being made
parties. At the time, our statutes provided that
[n]otice to any manager of any matter relating to the business or affairs of the limited
liability company, and the knowledge of the manager acting in the particular matter,
acquired while a manager or known at the time of becoming a manager, . . . operate
as notice to or knowledge of the [LLC.]
Ark. Code Ann. § 4-32-303(b)(1) (repealed). If the LLCs were not organized in Arkansas,
then the liability-limiting statute the majority relies on, Ark. Code Ann. § 4-38-304(a), does
not apply. Ark. Code Ann. § 4-38-901(a)(2) (“The law of the jurisdiction of formation of
a foreign limited liability company governs . . . the liability of a member as member and a
manager as manager for a debt, obligation, or other liability of the company[.]”) Further,
virtually every aspect of the relationship between an LLC and its members, and every
statutory rule that would apply by default, can be overridden in the operating agreement.
Ark. Code Ann. § 4-38-105(a) & (b). We have no operating agreement for any LLC, not
even Bluefin. More is needed.
All these unknowns should be a barrier to affirming. Under Rule 19(b), dismissal is
a last resort that must follow a determination “whether in equity and good conscience the
16
action should proceed among the parties before it” after considering several factors that
required knowing more than this. 3 The exception—“whether the plaintiff will have an
adequate remedy if the action is dismissed for nonjoinder,” Ark. R. Civ. P. 19(b)(4)—
obviously didn’t favor dismissing here.
The factual and legal gist of Walker’s robust-and-detailed complaint is that the
defendants broke their partnership agreement with him, and fiduciary duties as partners, by
appropriating an opportunity that belonged to the partnership and pursuing it without him
instead. Simple. Straightforward. Supported by law.
Under the Revised Uniform Partnership Act, 4 a partner’s fiduciary duties expressly
include:
(1) to account to the partnership and hold as trustee for it any property, profit, or
benefit derived by the partner in the conduct and winding up of the partnership
business or derived from a use by the partner of partnership property, including
the appropriation of a partnership opportunity.
Ark. Code Ann. § 4-46-404(b)(1) (emphasis added). Without citing that statute, Walker’s
plea for relief evoked the right it describes: to subject any fruits of the defendants’ breach of
3
For that reason, the advisory committee note accompanying the federal model for our Rule 19 recommends deferring this decision:
[T]he relationship of an absent person to the action, and the practical effects of an
adjudication upon him and others, may not be sufficiently revealed at the pleading
stage; in such a case it would be appropriate to defer decision until the action was
further advanced. Cf. Rule 12(d).
Fed. R. Civ. P. 19 (1966 Advisory Committee Note).
4
Which the defendants relied on in circuit court for a defense so flimsy the majority rightly declines (as I do) even to describe it.
17
partnership duties—whether reaped directly or through other entities—to his partnership
rights.
For reasons we don’t know (and Walker didn’t have to give when filing the operative
complaint), he chose to sue only the partners. Rule 19 doesn’t force him to make a different
choice. Out of respect for the careful equitable tradition it embodies, I quote it in full:
(a) Persons to Be Joined if Feasible. A person who is subject to service of process
shall be joined as a party in the action if (1) in his absence complete relief cannot be
accorded among those already parties, or, (2) he claims an interest relating to the
subject of the action and is so situated that the disposition of the action in his absence
may (i) as a practical matter, impair or impede his ability to protect that interest, or,
(ii) leave any of the persons already parties subject to a substantial risk of incurring
double, multiple or otherwise inconsistent obligations by reason of his claimed
interest. If he has not been joined, the court shall order that he be made a party. If
he should join as a plaintiff, but refuses to do so, he may be made a defendant; or, in
a proper case, an involuntary plaintiff.
(b) Determination by Court Whenever Joinder Not Feasible. If a person as
described in subdivision (a)(1)-(2) hereof cannot be made a party, the court shall
determine whether in equity and good conscience the action should proceed among
the parties before it, or should be dismissed, the absent person being thus regarded as
indispensable. The factors to be considered by the court include: (1) to what extent
a judgment rendered in the person’s absence might be prejudicial to him or those
already parties; (2) the extent to which, by protective provisions in the judgment, by
the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3)
whether a judgment rendered in the person’s absence will be adequate; (4) whether
the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.
Ark. R. Civ. P. 19.
The absence of a necessary party is irrelevant to a dismissal analysis unless it “cannot
be made a party” in the narrow sense used in Rule 19(b): it cannot be served with process
and is not subject to the court’s jurisdiction. St. Vincent Infirmary Med. Ctr. v. Shelton, 2013
Ark. 38, at 10, 425 S.W.3d 761, 767 (addressing only whether nonparty was a necessary
party under Rule 19(a) because “there is no assertion in this case that [it] was not subject to
18
service of process.”). That’s because if an absent but necessary party can be joined, Rule
19(a) requires the court to cure the defect by ordering the party joined, not dismissing: “If
he has not been joined, the court shall order that he be made a party.” The circuit court
did not do that. This court compounds that error. There is in fact a separate rule for joining
parties no one sued, Ark. R. Civ. P. 21 (“Parties may be dropped or added by order of the
court on motion of any party or on its own initiative at any stage of the action and upon
such terms as are just.”). The majority’s statement that “it was not the [defendants’] burden
to add the necessary parties for Walker” is a good rhetorical point but also beside the
determinative legal point: it was the circuit court’s burden to do that—before it dismissed,
at least. That’s what Rule 19 says; and that’s whose order Walker appealed. The defendants
identified no barrier to joining the LLCs in the procedural sense. (That is, draft, print, and
serve a pleading that includes them). They argued that Walker could get no relief from the
LLCs, if Rule 19 required him to join them, because those claims would be dismissed as
untimely. The majority mistakenly adopts that theory of “infeasibility” of joinder here,
citing no precedent for its decision. The logic and the precedent run the other way. (Run
Forrest, run!)
The relationship of baby to bathwater that theory of infeasibility implies (meaning
no Bluefin, no anyone) is unsustainable. For one thing, limitations is an affirmative defense;
a waivable one. Yet the LLCs that have not yet been joined have obviously not raised that
defense. (As we know, the defendants themselves would decide whether the LLCs raised
it.) But even if the LLCs raised a limitations defense and won—even at the threshold of a
lawsuit—that circumstance would not be inconsistent with being a party. You’d have to
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be a party to assert a defense at all. Sometimes, that defense wins off the jump. Martin v.
Equitable Life Assur. Soc. of the U.S., 344 Ark. 177, 40 S.W.3d 733 (2001). But unlike a
traditional limitations defense—which defendants must assert and either win or lose, one at
a time—this misconstruction of Rule 19 would allow them to win dismissal of all claims by
persuading a court that there is anyone the plaintiff should have sued against whom limitations
has run. (On the pleadings, no less.) When—before limitations run or after—are defendants
likely to raise it? This inverts the equitable principles behind the rule.
Rule 19 addresses the risk of duplicative or inconsistent obligations; not obligations
a party could contend are unfair. Nearly every defending party in a lawsuit no doubt thinks
being sued was unfair in some way or another. That’s not the legal test of a viable case. In
any event, an argument that somebody else is responsible to the plaintiff on his claims—
legally, factually, or both—is a merits defense. Whether the plaintiff has sued that person
or not, the Rules of Civil Procedure provide mechanisms for raising that defense on the
pleadings: Rule 12(b)(6), the proof (Rule 56), and if all else fails at trial and through posttrial
motions. If the jury or circuit court gets it wrong, there is a remedy by appeal. If we get it
wrong too—well, sometimes we do. In that event, a party can petition the Arkansas
Supreme Court for review.
But the majority is not writing on a blank slate and in the dark. This issue was settled
the opposite way for the federal Rule 19 in Temple v. Synthes Corp. Ltd., 498 U.S. 5 (1990)
(per curiam). A Louisiana plaintiff sued in two courts for one injury from an allegedly
defective spine implant. He sued the Pennsylvania manufacturer in federal court. He sued
the Louisiana doctor and hospital in state court. The federal defendant declined to bring
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them in using Fed. R. Civ. P 14, though that would not have destroyed diversity, Caterpillar
Inc. v. Lewis, 519 U.S. 61 (1996), and would have prevented any prejudice. The defendant
preferred them absent (ring any bells?). If the Louisiana defendants were necessary parties
under Rule 19(a), they were indispensable under Rule 19(b) because the plaintiff could not
join them without destroying diversity. In a four-page per curiam, the Supreme Court of
the United States granted certiorari and summarily reversed the judgment dismissing the
plaintiff’s claims under Federal Rule of Civil Procedure 19(b). “It has long been the rule
that it is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit.”
Id. at 7. It held no Rule 19 inquiry was necessary, because “[a]s potential joint tortfeasors
with [the federal defendant],” the state-court defendants “were merely permissive parties” 5
Later, the Arkansas Supreme Court cited Temple and settled this issue (in Walker’s
favor) for our Rule 19 in Shelton, 2013 Ark. 38, 425 S.W.3d 761. The court held that a
nonparty tortfeasor was not a necessary or indispensable party under Rule 19 on facts that
were more favorable than those here:
Shelton Here
The plaintiffs sued and sought relief from Walker sued the defendants only and insists the nonparty nursing home for the same he seeks damages only from them. injury they still blamed the defendant
hospital for.
It was legally impossible for the plaintiffs to The LLCs might be dismissed with recover from the nursing home when the prejudice if Walker sues them. Rule 19 issue was decided, because those
5
Id. at 8. “Permissive parties,” or “parties who may be joined” are described in Arkansas Rule of Civil Procedure 20(a), which is identical for our purposes to the federal one.
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claims had already been dismissed with
prejudice.
The nursing home’s litigation decisions The LLCs are controlled by the defendants were not controlled by the defendant themselves.
hospital.
The defendant hospital tried to sue the The defendants could have sued the LLCs nursing home under Rule 14 but couldn’t. under Rule 14 but didn’t.
Citing Temple, our supreme court noted that “joint tortfeasors are not considered to be
necessary or indispensable parties, as all potential tortfeasors are not required to be named as
defendants in a single lawsuit.” 2013 Ark. 38, at 10, 425 S.W.3d at 768. It held that
inference was only stronger in a several-liability regime, where the intention is “to hold
each defendant liable only for his or her share of fault[,]” which the plaintiffs would “still
have the burden to prove.” Id. at 11, 425 S.W.3d at 768. And the nursing home’s absence
at trial would not prevent the hospital “from presenting to the jury potential evidence of
[the nursing home’s] responsibility for a portion of [the resident’s] injuries.” Id. at 12, 425
S.W.3d at 768.
I cannot square those authorities—which express the universal understanding of how
joinder works under Federal Rule of Civil Procedure 19 and state rules modeled on it—
with the majority’s decision to affirm. I cannot square that decision with Rule 19 either,
because the majority does the inverse of what is directed by every relevant clause. Again,
what the majority has identified is a merits defense, not a Rule 19 issue. And its citation to
Swindle v. Benton County Prosecuting Attorney’s Office, 2023 Ark. App. 98, 661 S.W.3d 682,
is not persuasive. The majority misses the key procedural distinction in the facts that made
Swindle a classic application of Rule 19. There, a plaintiff’s attorney petitioned for a
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declaration that the lien he had reserved in his client’s civil recovery extended to a restitution
order in the tortfeasor’s criminal case. The circuit court dismissed under Rule 12(b)(6)
because an attorney’s lien doesn’t attach to a criminal restitution award. It also dismissed
under Rule 12(b)(7) because the client (and restitution beneficiary) was not a party.
Though the restitution award was related to the client’s civil damages (and measured
in dollars), the restitution order itself was a judgment. Ark. Code Ann. § 5-4-205(g)(1).
The tortfeasor’s liability had been fixed before the case began; only the payees—lawyer and
client, or client alone—were disputed. That’s an important distinction because settling
incompatible claims to a thing (like a judgment) is a classic use of joinder under Rule 19; 6
and litigating the lien issue without the client presented a classic risk of imposing “double,
multiple or otherwise inconsistent obligations” on the payor. Ark. R. Civ. P. 19(a). A
restitution beneficiary can enforce a restitution order like a civil judgment. Ark. Code Ann.
§ 5-4-205(g)(2). And if he has a civil judgment too, restitution payments must be credited
against it. Id. § 5-4-205(h)(2). If the circuit court had imposed a lien on the restitution
order, the nonparty client might have refused later to credit the payor for what the lawyer
took under the lien.
If anything we said in Swindle implied that decision would be relevant to a Rule 19
analysis of an unliquidated civil damages claim, we should distance ourselves from that
unintended and unnecessary misstep. Not extend it. The Rule 12(b)(7) point was
6
For example, in Nolan, supra, the plaintiff sued to cancel and claim for itself the nonparty’s marijuana cultivation license.
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surplusage in any event, because in Swindle we had already affirmed under Rule 12(b)(6)
that the lawyer had no attorney’s lien.
If there is a controlling Rule 12(b)(7) case on these facts, it requires reversing, not
affirming. In Wilman v. Sears, Roebuck & Co., 355 Ark. 668, 144 S.W.3d 245 (2004), the
plaintiff had sought a declaratory judgment that she was not liable for credit card charges she
denied making. Our supreme court held the defendant creditor’s desire to adjudicate who
was liable for the charges did not make the likely debtor (the plaintiff’s daughter)
indispensable under Rule 19. That analysis was limited to the relief the plaintiff sought.
“Sears will not be required to relitigate who owes on the debt because that issue is not being
litigated in the present action. What has never been litigated cannot be relitigated.” Id. at
673, 144 S.W.3d at 248. Here, Walker sought damages from the defendants individually.
Their liability is all that would be litigated, and the tools to defend against it or try to shift
it to others were still available to the defendants under other Rules. Right now, on this
thin record, nothing prevents his quest from proceeding.
I’ll come at it an additional way. The majority’s analysis reverses the inferences we
would usually afford the pleader. In effect, it assumes that on no set of facts consistent with
Walker’s complaint could the LLCs prove to be anything but indispensable. But Nolan
alone would demonstrate there is no need to speculate on the pleadings and dismiss too
soon. Rule 19 “does not condition [the courts’] authority to join an indispensable party on
a motion by a party” but authorizes joinder sua sponte. Nolan, 2024 Ark. 50, at 6, 686
S.W.3d at 503 (quoting Vibo Corp., Inc. v. State ex rel. McDaniel, 2011 Ark. 124, at 27, 380
S.W.3 411, 428). In Nolan, the court vacated a judgment entered in a nonparty’s absence
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as it reversed the denial of its motion to join. Id. at 8, 686 S.W.3d at 504. In Vibo Corp.,
the court had reversed and remanded to consider joinder sua sponte on appeal. 2011 Ark.
124, at 28–29, 380 S.W.3d at 428. Even under the majority’s views of what makes a
nonparty “necessary” and when joinder is “infeasible,” we know that if actual prejudice
from the LLCs’ absence materialized later, it could be remedied at any time. Simply put:
The law embodies the strongest possible presumption against dismissing an action for
damages at the pleading stage. The circuit court and today’s majority opinion, however,
take the opposite position on this critical point.
If the circuit court found Walker had no cognizable claim against the defendants on
these facts, it should have dismissed his claims under Rule 12(b)(6). Instead, the court
implied some of Walker’s claims should survive such an analysis: “While the court
considered excising different claims, it ultimately decided that it would not do that because
the complaint is deficient enough as to failure to include necessary parties that this will just
delay what will be done at a later time.” In fact, the circuit court and counsel acknowledged
at a motion hearing that whether Walker has a claim on these facts was an interesting issue
about which they could find little authority either way. I express no view; the circuit court
should decide those matters in the first instance.
I dissent because Judd Walker has, in a meaningful sense, been wrongfully denied his
day in court on a viable complaint (currently presumed true) that he filed as master of his
own lawsuit. To prevent this, he disclaimed—in circuit court and on appeal—the intent to
recover anything but money from anyone but the defendants: “To be clear, the Complaint
does not seek any relief from Bluefin Development, LLC, or the Entities, whatsoever.
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Rather, [Walker] seeks money damages against the individual Appellees for their breach of
the partnership agreement they made with him.” Why the majority doesn’t take him at his
word and let the case play out further is unfortunate and bad precedent.
* * *
I respectfully disagree with the majority’s serious misapplication of an important
procedural rule and would reinstate Walker’s complaint because it is too soon to know
about the viability of the case, one that has been prematurely judged at the threshold.
Castleberry Law Firm, PLLC, by: Kenneth P. “Casey” Castleberry; and Lubel Voyles
LLP, by: Lance H. Lubel, pro hac vice, for appellant.
The Applegate Law Firm, PLLC, by: Kayla M. Applegate; and James, House, Swann &
Downing, P.A., by: Patrick R. James, for appellees.
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