Schlenker et al v. Costa Brava Property Owners Association et al

Filing 136

ORDER denying 123 Motion for Summary Judgment. Signed by Honorable P. K. Holmes, III on January 10, 2019. (hnc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
GARLAND SCHLENKER and
MANDI SCHLENKER
v.

PLAINTIFFS
No. 6:14-CV-06068

SKY TAPP and
GARLAND COUNTY SHERIFF’S OFFICE

DEFENDANTS

ORDER
On August 19, 2015, a consent judgment (Doc. 72) was entered for Plaintiffs. They
subsequently assigned that judgment to Leads, LLC (Doc. 91-1). Plaintiffs have never moved to
substitute Leads, LLC, as the Plaintiff, and Leads, LLC has not moved to intervene. Thereafter,
Plaintiffs applied for various writs of execution. The writs were issued, and Defendant Sky Tapp
subsequently filed a motion to stay execution. The Court issued an order (Doc. 109) that would
stay execution of those writs upon Defendant Tapp’s payment into the Court’s registry of
$27,000.00. That payment was made on September 10, 2018, and execution of the writs was
stayed.
Subsequently, Leads, LLC filed a motion for summary judgment under Arkansas Code
Annotated § 16-66-118, which provides that
Each officer to whom any execution is delivered shall be liable and bound to pay
the whole amount of money specified in or endorsed on the execution and directed
to be levied if he or she willfully (1) Neglects or refuses to execute or levy the
execution according to law; [or] . . . (3) Does not return the execution on or before
the return day specified therein.
Leads, LLC argues that the Sheriffs of Hot Spring County1 and Garland County each have failed

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Leads, LLC appears not to have served Hot Spring County with this motion, providing
an additional basis for the Court to deny the motion as to the Sheriff of that County.
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to execute writs or return the executed writs on or before their return day. Leads, LLC fails to
specifically identify which writs are at issue in this motion, but this failure does not affect the
ruling on the instant motion. The Court ordered a stay of execution for all writs issued. The
Sheriffs cannot execute them because the Court has ordered those Sheriffs not to. Because the
Sheriffs cannot execute the writs, they cannot return the executions. The Court will not punish
state officers for complying with the Court’s own order.
IT IS THEREFORE ORDERED that the motion for summary judgment (Doc. 123) is
DENIED.
IT IS SO ORDERED this 10th day of January, 2019.

/s/P. K. Holmes, ΙΙΙ
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE

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