Full Opinion

Cite as 2026 Ark. App. 445 ARKANSAS COURT OF APPEALS DIVISION IV No. CV-25-370 FRANCISCO PALOMINO Opinion Delivered September 30, 2026 APPELLANT APPEAL FROM THE POPE COUNTY CIRCUIT COURT V. [NO. 58CV-18-79] STATE OF ARKANSAS HONORABLE JAMES DUNHAM, APPELLEE JUDGE AFFIRMED ROBERT J. GLADWIN, Judge This is an appeal from the Pope County Circuit Court’s order granting the motion to deem request for admissions admitted, for contempt, and for sanctions filed by appellee State of Arkansas against the appellant Francisco Palomino. Palomino argues on appeal that the circuit court erred by issuing sanctions against him because the State failed to confer in good faith before requesting sanctions. Additionally, Palomino contends that the circuit court erred by litigating on behalf of the State in violation of Arkansas Rule of Civil Procedure 16 (2025). We affirm. I. Background Facts On December 18, 2017, Palomino was driving through Pope County, Arkansas, when he was pulled over by a state trooper for speeding. Juan Silva was also in the vehicle. While the traffic stop was in progress, the officer noticed a strong odor of marijuana and discovered that Palomino was driving on a suspended license. The officer conducted a search of the vehicle and located a large sum of money in a bag. According to the officer, Palomino admitted that he had taken a large amount of marijuana to Nashville, Tennessee, and the money was proceeds from the sale of the marijuana. The State seized the $189,120 in cash. On February 5, 2018, the State filed an in rem complaint seeking forfeiture of the cash. Palomino was served by certified mail, restricted delivery, return receipt requested at 2120 Jennings Ave., Apt. 1105, Santa Rosa, CA 95401. The return receipt was signed and dated March 14, 2018. Palomino failed to file an answer to the complaint; therefore, the State moved for default judgment. On April 26, the circuit court entered a default judgment in favor of the State. Palomino moved to set aside the default judgment on May 12, 2023. He argued that the circuit court should set aside the default judgment because the summons was defective, and he never received actual or constructive notice of the complaint. On December 11, the State propounded requests for admissions to Palomino. In request for admission number 2, the State asked Palomino to “admit that on March 14, 2018 [he] lived at 2120 Jennings, Ave., Apt. 1105, Santa Rose, California.” Request for admission number 8 asked Palomino to “admit that [he] signed the confiscation report.” Palomino responded to request number 1, stating he was “unable to specifically admit or deny this request as set forth, and therefore specifically denies the request. Mr. Palomino used the address but cannot confirm or deny he ‘lived’ at the address on March 14, 2018.” Palomino responded to request number 8, stating that he was “unable to specifically admit or deny this request as set forth, and therefore specifically denies the request.” Palomino asserted that the 2 “document ha[d] substantially changed since he was in custody, and he ha[d] no way of knowing if this is what he signed.” The circuit court held a pretrial conference, and Palomino’s attorney informed the court that the parties agreed that the State’s return receipt established a prima facie case of service; thus, the burden of proof would be on Palomino at the motion-to-set-aside hearing. During the conference, the circuit court inquired how long Palomino would need to provide the name, address, and phone number for each lay witness as well as affidavits detailing their anticipated testimony. Palomino’s attorney noted his objection to the circuit court’s entering an order requiring him to provide the requested affidavits; however, counsel stated that if such an order was entered, Palomino could “certainly” have the affidavits within sixty days. Furthermore, the court ordered Palomino to provide additional responses—over his counsel’s objections to the court’s “using its order for discovery measures”—to the State’s request for admissions numbers 2 and 8. Subsequently, the circuit court entered its order requiring Palomino to file the affidavits and his detailed discovery responses on or before November 29, 2024. On December 11, 2024, the State filed a motion to deem the requests for admissions admitted, for contempt, and for sanctions because Palomino failed to comply with the circuit court’s discovery order. On December 17, the circuit court held a pretrial hearing. At the hearing, Palomino’s counsel acknowledged that the affidavits were not filed within the required time frame. Counsel, however, stated that Palomino was still working on obtaining the requested documents but was experiencing difficulty obtaining his ex-wife’s affidavit. 3 Regarding his responses to the requests for admissions, Palomino’s counsel stated that “there are no other detailed responses.” Counsel once again noted his objection to the court’s conducting its own discovery. The circuit court scheduled another hearing for January 28, 2025, to address the State’s motion. Palomino filed a response to the State’s motion and argued that no further response was required to the requests for admissions and acknowledged that he had not obtained the required affidavits. He argued that the circuit court was attempting to litigate on behalf of the State and that because no motion to compel was filed by the State and no order to compel entered by the court under Arkansas Rule of Civil Procedure 36, sanctions were not available. Counsel characterized the issue as the circuit court’s “creating [a] discovery controversy in its attempt to litigate the matter.” The circuit court held the hearing on January 28; Palomino and his attorney failed to appear. Accordingly, the circuit court granted the State’s motion. The requests for admissions were deemed admitted; Palomino was found in willful contempt of the court’s orders; sanctions were ordered; and the motion to set aside the default judgment was dismissed with prejudice. The court entered its final order on February 20. Palomino filed a timely notice of appeal; this appeal followed. II. Standard of Review We review the imposition of discovery sanctions for an abuse of discretion, and our court has noted that the bar to demonstrate that the circuit court has abused its discretion in an order under Arkansas Rule of Civil Procedure 37 is very high. S.A.M. Grp., LLC v. CR 4 Crawford Constr., LLC, 2020 Ark. App. 173, 596 S.W.3d 590 (citing Phelan v. Discover Bank, 361 Ark. 138, 205 S.W.3d 145 (2005)). The circuit court is in a superior position to judge the actions and motives of the litigants, and the circuit court’s rulings should not be second- guessed. Russellville Holdings, LLC v. Peters, 2017 Ark. App. 561, 533 S.W.3d 119. Our appellate courts have repeatedly upheld the circuit court’s exercise of discretion in fashioning severe sanctions for flagrant discovery violations. Coulson Oil Co., Inc. v. Tully, 84 Ark. App. 241, 139 S.W.3d 158 (2003). A circuit court commits an abuse of discretion when it improvidently exercises its discretion—when it is exercised thoughtlessly and without due consideration. Merica v. S&S Home Improvements, Inc., 2021 Ark. App. 197, 625 S.W.3d 356. III. Points on Appeal Palomino argues the following on appeal: (1) the circuit court improperly issued sanctions under Rule 37 because the State failed to confer in good faith, and the sanctions were not issued in violation of discovery issued by a party; and (2) the circuit court erred by litigating on behalf of a party in violation of Rule 16 and with disregard to the judicial canon of impartiality. IV. Discussion First, Palomino asserts that the circuit court erred by imposing sanctions because the State failed to confer in good faith with him before requesting the sanctions. As the State correctly argues, this argument is not preserved for appeal because it was not raised below. See Paschal Heating & Air Conditioning Co., Inc. v. Zotti, 2021 Ark. App. 372. Accordingly, Palomino is barred from arguing for the first time on appeal that the motion for discovery 5 sanctions was procedurally defective because it lacked a statement that the parties had conferred, or attempted to confer, about the dispute. Nevertheless, the argument is meritless because the good-faith requirement in Rule 37(a)(2) applies to a motion for an order compelling discovery—not a request for sanctions for failing to comply with an order already entered, as was the case herein. Next, Palomino argues that the circuit court erred by issuing a discovery order— without any motion from the State—in violation of Arkansas Rules of Civil Procedure 36 and 37. We reject this argument given the express language of Rule 37. Rule 37(b)(2) states that “if a party . . . fails to obey an order to provide or permit discovery, . . . the court in which the action is pending may make such orders in regard to the failure as are just[.]” Furthermore, Rule 16(3) explicitly states that a circuit court may in its discretion consider “[t]he possibility of obtaining admissions of act and of documents which will avoid unnecessary proof” at a pretrial conference. Ark. R. Civ. P. 16(3). Here, Palomino acknowledged before the circuit court that he failed to comply with the circuit court’s deadlines, despite counsel’s agreement at the pretrial hearing that he could “certainly” have the requested information to the court within sixty days. At the next pretrial conference, Palomino maintained that he was actively working on acquiring the requested affidavits—namely, the affidavit of his ex-wife. Palomino then failed to appear at the hearing on the State’s motion for contempt and sanctions. This court has consistently held that it is crucial to our judicial system for circuit courts to retain the discretion to control their dockets, and it would be imprudent to allow 6 litigants to bog down the system through delay and willful noncompliance with a circuit court’s order. See, e.g., Thomas v. Anderson, 2025 Ark. App. 245, 712 S.W.3d 744. Thus, we affirm the circuit court’s order. Finally, Palomino maintains that the circuit court’s order should be reversed because the court’s actions amounted to litigating on behalf of the State, which tarnishes the court’s appearance of impropriety. Because we find that the circuit court properly exercised its discretion pursuant to Arkansas Rules of Civil Procedure 16 and 37, we need not address this argument. In conclusion, Palomino failed to abide by the circuit court’s discovery orders; thus, we hold that the circuit court did not abuse its discretion by granting the State’s motion to deem the request for admissions admitted, imposing sanctions, and dismissing with prejudice Palomino’s motion to set aside the default judgment. Affirmed. THYER and MURPHY, JJ., agree. Eugene Clifford, for appellant. Tim Griffin, Att’y Gen., by: Joseph Karl Luebke, Ass’t Att’y Gen., for appellee. 7