Cite as 2026 Ark. App. 501
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-24-809
JEREMY KENNEDY Opinion Delivered: October 28, 2026
APPELLANT
APPEAL FROM THE JEFFERSON
COUNTY CIRCUIT COURT
V. [NO. 35CV-24-382]
ARKANSAS POST-PRISON TRANSFER HONORABLE JODI RAINES DENNIS,
BOARD AND ARKANSAS DIVISION JUDGE
OF CORRECTION
APPELLEES REVERSED AND REMANDED
RAYMOND R. ABRAMSON, Judge
Appellant Jeremy Kennedy appeals a Jefferson County Circuit Court order dismissing
his petition in which he sought declaratory judgment and a writ of mandamus against the
Arkansas Post-Prison Transfer Board (APPTB) and the Arkansas Division of Correction
(ADC). The circuit court granted the appellees’ motion to dismiss the petition pursuant to
Arkansas Rule of Civil Procedure 12(b)(8), finding that Kennedy had at least two pending
cases involving the same parties arising out of the same transaction or occurrence and that
the dismissal shall count as a “strike” against Kennedy pursuant to Arkansas Code Annotated
section 16-68-607(b)(1) (Supp. 2023). We reverse and remand.
I. Background Facts and Procedural History
On May 10, 2024, Kennedy filed a petition for declaratory judgment and writ of
mandamus in the Jefferson County Circuit Court against the appellees. The petition related
to a September 2023 parole hearing and decision. According to his petition, Kennedy was
serving sentences in the ADC for the crimes of residential burglary committed in July 2009,
January 2013, and February 2013; breaking or entering committed in June 2018 and August
2022; criminal mischief committed in August 2022; and theft of property committed in
August 2022. Kennedy had a hearing before the Arkansas Parole Board on September 12,
2023.1 On September 15, 2023, the Parole Board denied Kennedy parole for a period of two
years due to the nature and seriousness of his crimes and his prior criminal history.
In his petition for declaratory judgment and writ of mandamus, Kennedy argued that
(1) the APPTB acted outside its legal authority by denying his transfer eligibility for two years
because the crimes for which he was sentenced and incarcerated do not fall within the crimes
listed in Arkansas Code Annotated section 16-93-615(b)(1) (Supp. 2023), which provide a
basis for denial of transfer eligibility; (2) when the APPTB denied his transfer, it was legally
required to provide a “prescribed course of action;” (3) the APPTB was legally required to
transfer him once he completed the required course of action; (4) the APPTB was legally
required to transfer him once he reached his transfer-eligibility date; (5) the APPTB deprived
1
The Arkansas Parole Board became the APPTB on January 1, 2024. See Ark. Code Ann. § 16-93-201(a)(1) (Supp. 2025).
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Kennedy of due process and his right to equal protection by denying him parole; and (6) the
APPTB acted outside its legal authority by not reconsidering his parole eligibility in March
2024.2
On June 25, 2024, Kennedy filed an amended petition for declaratory judgment and
writ of mandamus in which he made more succinct allegations similar to those in his initial
petition. On July 26, 2024, the appellees moved to dismiss the amended petition because
Kennedy failed to sufficiently serve process upon them as required under Rule 4 of the
Arkansas Rules of Civil Procedure.
On August 7, 2024, Kennedy filed a second amended petition for declaratory
judgment and writ of mandamus. In that petition, Kennedy argued that (1) the APPTB acted
ultra vires when it denied his transfer request, (2) that the APPTB acted ultra vires by denying
his transfer for two years, and (3) the ADC acted ultra vires by failing to transfer him to a
community-correction program after he reached his transfer-eligibility date of March 12,
2024. Kennedy sought a declaration of his transfer-eligibility date and an order that he be
transferred to a community-correction program upon reaching the same date.
On August 23, 2024, the appellees moved to dismiss the amended petition. They
argued that Kennedy’s second amended petition was barred by Arkansas Rule of Civil
Procedure 12(b)(8) because he had at least two other lawsuits pending between the same
parties arising out of the same transaction or occurrence. They also argued that the dismissal
2
The same day that Kennedy filed his petition, he also filed a petition for leave to proceed in forma pauperis, and the circuit court granted that petition on May 13.
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should count as a “strike” under Arkansas Code Annotated section 16-68-607(b)(1) for being
“frivolous and malicious, effectively burdening this Court and harassing at least two circuit
courts with a duplicate lawsuit that is already pending or resolved elsewhere.” On August 26,
2024, the circuit court granted the appellees’ motion to dismiss pursuant to Rule 12(b)(8),
and it determined that “the dismissal shall count as a ‘strike’ against Kennedy.” On
September 5, after the circuit court had entered its order, Kennedy filed a response in
objection to the appellees’ motion to dismiss, arguing that the present lawsuit is not identical
to his previous ones. That same date, he filed a third amended petition for declaratory
judgment and writ of mandamus asserting similar claims as in his previous petitions, but
naming Lona McCastlain and Dexter Payne, in their official capacities, as respondents. On
September 13, 2024, Kennedy filed a notice of appeal from the circuit court’s August 26
order of dismissal. Kennedy stated in that notice that he abandoned any pending but
unresolved claims. This appeal followed.
II. Points on Appeal
For reversal, Kennedy argues that (1) the circuit court abused its discretion in granting
the appellees’ motion to dismiss under Rule 12(b)(8) based on another identical pending
civil action; (2) the circuit court’s dismissal of Kennedy’s second amended petition operated
as a merits adjudication of his claims under Arkansas Rule of Civil Procedure 41(b) because
the action had previously been dismissed and that this court should review the merits of
those claims on appeal; and (3) the circuit court abused its discretion when it designated the
dismissal of his civil action a “strike” under Arkansas Code Annotated section 16-68-607.
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A. Standard of Review and Applicable Law
We generally review a circuit court’s decision on a motion to dismiss under an abuseof-discretion standard. DeSoto Gathering Co., LLC v. Hill, 2018 Ark. 103, at 4, 541 S.W.3d
415, 417. However, the construction of a court rule is a question of law, which we review de
novo. Id.
Under Arkansas Rule of Civil Procedure 12(b)(8), the “pendency of another action
between the same parties arising out of the same transaction or occurrence” can be raised as
a defense to a complaint filed by a plaintiff. DeSoto Gathering Co., 2018 Ark. 103, at 5, 541
S.W.3d at 418. The reporter’s note to Rule 12 indicates that this provision is based on an
earlier statute, Arkansas Statutes Annotated section 27-1115(3) (Repl. 1962), which listed as
a ground for demurrer “[t]hat there is another action pending between the same parties for
the same cause[.]” Id. Our supreme court has interpreted that statute, “as well as Rule
12(b)(8), as applying only to prohibit identical actions from proceeding between identical
parties in two different courts of this state.” Id. (citing Potter v. City of Tontitown, 371 Ark.
200, 264 S.W.3d 473 (2007); Patterson v. Isom, 338 Ark. 234, 992 S.W.2d 792 (1999); Nat’l
Bank of Com. v. Dow Chem. Co., 327 Ark. 504, 938 S.W.2d 847 (1997); Tortorich v. Tortorich,
324 Ark. 128, 919 S.W.2d 213 (1996)). Additionally, the matter is one of venue; thus, Rule
12(b)(8) is not implicated when one of the actions is in a different jurisdiction, such as federal
court. Id. The rule is intended to discourage a multiplicity of suits and to protect the
defendant from “double vexation from the same cause.” Id. (quoting Mark Twain Life Ins.
Corp. v. Cory, 283 Ark. 55, 59, 670 S.W.2d 809, 812 (1984)).
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B. Discussion
1. Rule 12(b)(8) dismissal
In his first point, Kennedy challenges the dismissal under Rule 12(b)(8), arguing that,
in their motion to dismiss, the appellees simply cited the case numbers of two cases that were
pending on appeal and three additional cases that were pending in the Izard County Circuit
Court. He argues that those citations alone were an insufficient basis for a Rule 12(b)(8)
dismissal. The appellees respond that the dismissal was proper based on one of the pending
Izard County Circuit Court cases and that we should affirm on that basis.
In its order of dismissal, the circuit court found the following:
Respondents filed a motion to dismiss because the petitioner has at least two
pending cases involving the same parties arising out of the same transaction or
occurrence. Arkansas Rules of Civil Procedure, Rule 12(b)(8).
Based on the law and the argument presented by respondent, the MOTION
TO DISMISS is GRANTED[.]
Because the circuit court based its ruling on the law and argument presented by the appellees,
we must look to their motion to dismiss in which they argued as follows:
Here, Kennedy has brought at least two other lawsuits against the APPTB,
members of the APPTB, and the ADC arising out of the same transaction or
occurrence—the two-year denial of his parole in September of 2023. See Jeremy Kennedy
v. Arkansas Parole Board & Arkansas Department of Correction, 35CV-23-920 (on appeal
CV-24-395); see Jeremy Kennedy v. John Felts, et al., 33CV-23-97 (on appeal CV-24-247).
Both of these lawsuits are currently pending in the Arkansas Supreme Court. But
these are just two examples as Kennedy repeatedly files the same or similar lawsuit
against the APPTB, members of the APPTB, and the ADC. E.g., 33CV-24-49, 33CV23-57, 33CV-23-123. Kennedy’s present action is duplicative, frivolous and malicious.
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Therefore, his lawsuit is barred by Rule 12(b)(8), and as a result, it should be
dismissed.
On appeal, Kennedy argues that a Rule 12(b)(8) dismissal should not have been
granted solely based on citations to circuit court case numbers and that this court cannot
look to evidence outside the record in its appellate review. In response, the appellees point
only to Izard County Circuit Court case No. 33CV-24-49 (not to the additional cases they
cited below) and argue that the Izard County case was governed by the same statutory
framework, encompassed similar issues between identical parties, and was pending at the
same time as the present case. Thus, they argue, we should affirm the Rule 12(b)(8) dismissal
on that basis.
Again, Rule 12(b)(8) applies “only to prohibit identical actions from proceeding
between identical parties in two courts of this state.” Potter, 371 Ark. at 215, 264 S.W.3d at
484. Additionally, timing matters in determining whether there is another action “pending”
for purposes of Rule 12(b)(8). In Allstate Insurance Co. v. Redman Homes, Inc., 302 Ark. 335,
338, 789 S.W.2d 454, 456 (1990), for example, our supreme court held that even though a
second lawsuit was initiated while a first lawsuit was pending in the circuit court, the
dismissal of the first suit before the circuit court’s ruling on a Rule 12(b)(8) motion to dismiss
the second suit precluded the application of Rule 12(b)(8) to the second suit because no
other was action pending at the time of the ruling. The supreme court’s holding in Allstate
defines “pending” as pending in circuit court, not pending on appeal. Id.; see also DeSoto
Gathering Co., 2018 Ark. 103, at 8 n.2, 541 S.W.3d at 419 n.2 (holding that because DeSoto’s
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first case was pending before the supreme court when the circuit court entered its order in
the second case, the first case was no longer “pending” for purposes of Rule 12(b)(8) when
the circuit court ruled on Hill’s motion to dismiss in the second case); Valley v. Helena Nat’l
Bank, 2010 Ark. App. 560, at 5–7 (noting that Rule 12(b)(8) did not apply when the first
suit had been dismissed and only the second suit remained).
The two “pending” cases that the appellees primarily relied on in their motion to
dismiss were Kennedy v. Arkansas Parole Board, 2025 Ark. 131, which was docketed in the
supreme court as CV-24-247, on appeal from Jefferson County Circuit Court case No. 35CV23-920; and Kennedy v. Felts, 2026 Ark. App. 415, which was docketed in this court as CV24-395, on appeal from Izard County Circuit Court case No. 33CV-23-97. By the appellees’
own admission in their motion to dismiss, those two cases were already on appeal when they
filed their Rule 12(b)(8) motion. Therefore, under both Allstate and DeSoto, those cases were
not pending for purposes of Rule 12(b)(8) when the appellees filed their motion to dismiss.
The appellees cited three additional Izard County Circuit Court cases in support of
their Rule 12(b)(8) motion—case Nos. 33CV-24-49, 33CV-23-57, and 33CV-23-123. To
determine whether those cases were “pending” for purposes of Rule 12(b)(8) and whether
those cases were “identical actions” between “identical parties,” this court would have to look
beyond the record in this case. “Our supreme court has clearly stated . . . that judicial notice
may not be taken of the record in a separate case.” Polston v. State, 2020 Ark. App. 530, at 6–
7. Unless the proceedings are put into evidence, courts will not travel outside a record in
order to notice proceedings in another case. See id. It is axiomatic that we do not consider
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matters outside the record. Id.; see also Braswell v. Gehl, 263 Ark. 706, 709–10, 567 S.W.2d
113, 116 (1978) (“[A] judgment relied upon as a bar to an action could not be considered
unless introduced into evidence[,] and courts cannot take judicial notice of their own records
in other causes pending therein, even between the same parties[.]”). Because this court
cannot properly evaluate the circuit court’s Rule 12(b)(8) ruling without going outside the
record in this case, which it is prohibited from doing, we reverse and remand the circuit
court’s Rule 12(b)(8) dismissal.
2. Merits adjudication pursuant to Rule 41
Next, in his second and third points on appeal, Kennedy asserts overlapping
arguments that the circuit court’s dismissal order operated as a merits adjudication under
Rule 41 of the Arkansas Rules of Civil Procedure and that his second amended petition for
declaratory relief and writ of mandamus stated facts showing that he was entitled to relief.
Because these two issues are intertwined, we address them together.
Rule 41(b) governs involuntary dismissals:
(b) Involuntary Dismissal. In any case in which there has been a failure of the
plaintiff to comply with these rules or any order of court or in which there has been
no action shown on the record for the past 12 months, the court shall cause notice
to be filed and sent to the attorneys of record through the court's electronic filing
system or by mail, and sent by mail to any party not represented by an attorney, that
the case will be dismissed for want of prosecution unless on a stated day application
is made, upon a showing of good cause, to continue the case on the court's docket. A
dismissal under this subdivision is without prejudice to a future action by the plaintiff
unless the action has been previously dismissed, whether voluntarily or involuntarily,
in which event such dismissal operates as an adjudication on the merits.
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Kennedy seeks to have this court review the merits of his underlying claims in his second
amended petition for declaratory judgment and writ of mandamus pursuant to Rule 41(b).
The appellees argue that the circuit court did not rule on the merits of Kennedy’s petition,
and this court cannot do so for the first time on appeal.
With respect to Kennedy’s request that this court review the merits of his second
amended petition for declaratory judgment and writ of mandamus, our review of the circuit
court’s dismissal order reveals no rulings on the merits of his arguments. Kennedy’s failure
to obtain a ruling on a specific argument precludes our review of the argument on appeal.
See Fitzgiven v. Dorey, 2013 Ark. 346, at 15, 429 S.W.3d 234, 243. The “requirement of a
ruling from a lower court is the elementary basis of this court’s function, which is to review
decisions of a trial court and not to make them in the first instance on appeal.” TEMCO
Constr., LLC v. Gann, 2013 Ark. 202, at 13, 427 S.W.3d 651, 659–60. The circuit court’s
dismissal was based exclusively on Rule 12(b)(8), and we will not review the merits of his
second amended petition claims in the absence of a ruling from the circuit court.
3. Strike
In his last point on appeal, Kennedy argues that the circuit court abused its discretion
when it designated the dismissal of his civil action as a “strike” under Arkansas Code
Annotated section 16-68-607(b)(1) because his lawsuit was not frivolous or malicious and
because the statute is unconstitutional.
Pursuant to section 16-68-607(b)(1),
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(b) Unless the incarcerated person is under imminent danger of serious physical
injury, an incarcerated person may not bring a civil action or appeal a judgment in a
civil action or proceeding under the Arkansas indigency statutes if, on three (3) or
more prior occasions while incarcerated or detained in any facility, the incarcerated
person brought an action that was determined by a court to:
(1) Be frivolous or malicious[.]
In counting the dismissal as a “strike” under subdivision (b)(1), the circuit court stated that
it relied on the appellees’ argument in their motion to dismiss. There, the appellees asserted
that “Kennedy’s present lawsuit is frivolous and malicious, effectively burdening and
harassing at least two circuit courts with a duplicate lawsuit that is already pending or
resolved elsewhere. As a result, the dismissal of this lawsuit should be counted as a strike.”
Given that the appellees’ request for a strike was based entirely on its Rule 12(b)(8)
argument, both inquiries would require this court to look beyond the record in this appeal,
which, as discussed above, we cannot do. See Polston, 2020 Ark. App. 530, at 6–7.
Accordingly, because we reverse the Rule 12(b)(8) dismissal, we also reverse the “strike”
designation. Thus, we need not address Kennedy’s additional argument for reversal of the
of the strike in which he challenges the constitutionality of section 16-68-607(b). See Landers
v. Jameson, 355 Ark. 163, 174, 132 S.W.3d 741, 748 (2003) (appellate courts will avoid a
decision on the constitutionality of a state statute when resolving the constitutional issue is
not essential to deciding the case).
III. Conclusion
For the reasons stated above, we reverse the circuit court’s dismissal order and remand
for proceedings consistent with this opinion.
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Reversed and remanded.
KLAPPENBACH, C.J., and VIRDEN, J., agree.
Jeremy Kennedy, pro se appellant.
Tim Griffin, Att’y Gen., by: Sean M. Rowland, Ass’t Att’y Gen., for appellee.
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