Tim Cullen

We Support Tim Cullen for Supreme Court

This blog is mostly read by lawyers, but around election time, a lot of voters (who are not necessarily lawyers) visit our blog to learn about the candidates running for appellate court positions.  This year there is only one contested appellate court race. That’s the race between Tim Cullen and Robin Wynne for an open seat on the Arkansas Supreme Court.

Before this election cycle, the Arkansas Appeals Blog had never endorsed a judicial (or any) candidate.  That changed when, in February, our good friend and mentor, Tim Cullen, decided to run for a position on the Arkansas Supreme Court.  We have known Tim for the past seven years.  We know Tim to be an outstanding appellate lawyer, a zealous advocate for his clients, and a professional in every sense of the word.  Tim is also a family man who always puts his three children first.

In addition to Tim’s character and integrity, Tim has the experience necessary to be an outstanding Supreme Court Justice.  Immediately after law school, Tim went to work for for two years for the late Arkansas Court of Appeals Judge Terry Crabtree.  Once Tim entered private practice, he focused his practice heavily on appellate work.  In fact, during his 15 years in private practice, Tim has been lead counsel on approximately 150 appellate cases, before the Arkansas Court of Appeals, the Arkansas Supreme Court, the Eighth Circuit Court of Appeals, and the United States Supreme Court.  (By way of comparison, a Westlaw search reveals that Tim’s opponent had been lead counsel on only four appellate briefs during that three decades he had been a licensed attorney.)  Tim’s experience is part of the reason the readers of Soirée magazine voted Tim one of the best appellate lawyers in Arkansas.

The Attack on Tim’s Integrity by an Out-of-State PAC is Appalling 

We never doubted that we had made the right decision in choosing to endorse Tim Cullen.  Given the events of this past week, we are more confident than ever of our decision to support Tim.

In the past week, an out-of-state PAC has spent an estimated $400,000 on vicious, dishonest attack ads against Tim Cullen.  This is about twice what the two candidates will spend combined on their entire campaigns.  The PAC’s ads claim that Tim Cullen believes child pornography is a victimless crime.  If that sounds so outrageous that it couldn’t possibly be true, it’s because it’s so outrageous it couldn’t possibly be true.  The PAC knows it’s not true.  Judge Wynn knows it’s not true. However, Judge Wynne did not repudiate the ad.  Instead, he just watched and received the benefit as an honorable man had his character assassinated.

I don’t need to go through an explanation of what makes the ad so wrong on so many levels, because several other lawyers and writers have already done so: [updated 5/17/14 to include additional articles and commentary]

  • FactCheck.org calls the ad “beyond the pale” because the ad “distorts the record in a blatant appeal to fear and emotion.”
  • Dan Greenberg at The Arkansas Project goes through a thorough analysis of not only why the ad is untrue, but also why the attack ad is an attack on the judiciary.  He concludes that “Wynne’s conduct makes me think he should be kept far away from the bench.
  • Max Brantley with The Arkansas Times writes that “Wynne’s failure to repudiate the secret money and the anti-American message of the ads from which he benefits raises fair questions about his fitness to serve.”
  • Jennifer Wells at hawglawblawg explains the entire campaign finance system for judicial elections in a very witty post that explains the problem with out-of-state money and the problem with the content of the ads.
  • Jennifer Flinn at Arkansas Legal Pad explains that attorneys often represent clients they don’t agree with, because that’s their job.
  • Matt Campbell of the Blue Hog Report writes that “[a]nyone who might ever find him- or herself in front of the Arkansas Supreme Court (which, honestly, could be pretty much anyone) should be outraged by the idea that a judge could have deep financial ties to the other side of your case and you would never know it.”
  • John Brummett wrote yesterday, “I know Robin Wynne a little and like him. But I’d prefer a Supreme Court justice who didn’t get his robe by passively riding the coattails of cowardly smear artists.”

Listen: When you have Dan Greenberg, Matt Campbell, and John Brummett all on the same page on a topic, you should take note.  

You’ll notice a variety of people condemning Robin Wynne for his refusal to repudiate the ad.  Instead of repudiating the ad, he released one of those overly lawyered statements that had a lot of words in it but didn’t really say anything. (He claims not to have known about the ad, but the evidence brings that claim into question.) When Tim Cullen called and asked him to repudiate the ad, Robin Wynne literally hung up on Tim.

[5/17/14 UPDATE:] Both candidates were invited to attend a rally on the steps of the Arkansas State Capitol at noon on Thursday.  The event was attended by approximately 100 lawyers, and included many prominent speakers, including former Arkansas Supreme Court Justice Annabelle Imber Tuck.  Tim Cullen accepted the invitation and gave a very forceful speech.  Judge Wynne rejected the invitation to attend and speak.  As Tim said in his speech, “only one person benefits from these ads: Judge Robin Wynne.  I stand here in utter disbelief that any judge would allow this group and their vile tactics and their complete disregard for the constitution to carry the ball for their campaign.”  We couldn’t agree more. (Click here to watch the video from the beginning, or click here to watch this particular quote.)

Join Us in Voting for Tim Cullen for Our Arkansas Supreme Court

Tim Cullen is a personal friend of ours.  He is a good, decent, honorable man.  He is the antithesis of what these groups claim he is.  I hope you’ll join us in casting a vote FOR TIM CULLEN for Arkansas Supreme Court.

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Tim Cullen for Supreme Court

Arkansas Supreme CourtLack of Final Order Prevents Arkansas Supreme Court from Issuing a Stay of Pulaski County Circuit Court’s Ruling in Same-Sex Marriage Case

The Arkansas Supreme Court handed down a decision late this afternoon dismissing without prejudice the appeal taken by the State from the Pulaski County Circuit Court’s recent decision declaring Arkansas’s ban on same-sex marriage unconstitutional.

According to the per curiam decision, the circuit court’s order was not final because it failed to adjudicate all the claims or to otherwise include a Rule 54(b) certificate, which would allow an interlocutory appeal from an otherwise non-final order.

Arkansas Supreme Court Essentially Holds That a Stay is Unnecessary Because There is No Order Striking Down Licensing Statute

The Arkansas Supreme Court also denied the State’s plea for the Court to help alleviate confusion among circuit clerks by granting a stay pursuant to the Supreme Court’s superintending authority.  The Court noted that because the circuit court had not issued a ruling with respect to Arkansas Code Annotated Section 9-11-208(b) (Repl. 2009), “License not issued to persons of the same sex,” the circuit court’s order had no effect on that statute and its prohibition against circuit and county clerks issuing same-sex marriage licenses.

Although the Pulaski County Circuit Court’s decision struck down as unconstitutional two state statutes that ban marriages by people of the same sex (Arkansas Code Annotated Sections 9-11-107, “Validity of foreign marriages” and 9-11-109, “Same sex marriage void”), it failed to rule on Arkansas Code Annotated Section 9-11-208(a)(1)(B), which provides, “A license shall not be issued to a person to marry another person of the same sex, and no same-sex marriage shall be recognized as entitled to the benefits of marriage.”  It appears that this means that that statute is still in effect, so the practical effect of this ruling appears to be that circuit clerks are prohibited from issuing licenses to same-sex couples until the circuit court clarifies its ruling.

The Court’s full decision is available here: Arkansas Supreme Court Same-Sex Marriage Decision.

Posted by: Andy Taylor | May 14, 2014

Arkansas Supreme Court Releases Election Decisions

Two big decisions from the Arkansas Supreme Court today (actually several, but four of them are about the same issue).  We will update the blog with more information later, but summaries of the decisions follow.  We’re getting these out quickly, so please let us know if you read the opinions and have a different understanding.

Supreme Court Holds Candidates for Judicial Office not Disqualified for Delinquency in Paying Dues

The Supreme Court held that (1) a suspension for failure to pay dues is not the same as not having a license; and (2) that suspending an attorney without notice is a violation of Due Process.  Justice Hart wrote separately, concurring in part and dissenting in part.  She agreed with point 1, which she argued made point 2 moot.  Justice Corbin dissented on both points, and would have held that a delinquency makes a candidate ineligible.

Here are PDFs of the opinions:

CV-14-367 Fox

CV-14-358 Bailey

CV-14-370 Byrd

CV-14-369 Foster

Supreme Court Allows Voter ID Law to Remain in Place (For Now); Strikes Down Rules Relating to Absentee Voters

On what appear to be procedural grounds, the Arkansas Supreme Court struck down a circuit court opinion holding that Arkansas’s voter ID law was unconstitutional.  The Court held that the constitutionality of the statute was not properly before the Circuit Court.  Presumably, this leaves open the question of whether the law could be attacked in the future.  The Arkansas Supreme Court also held that the Arkansas State Board of Election Commissioners had acted outside the scope of its authority when it promulgated rules allowing for provisional ballots for absentee ballots, where the statute did not expressly allow for such a rule.

Here is a PDF of the opinion:

CV-14-371 Voter ID

 

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Posted by: Andy Taylor | March 25, 2014

Future Obligations and Finality Problems: Nix v. Nix

Nix v. Nix

The Arkansas Court of Appeals recently handed down its decision in Nix v. Nix, 2014 Ark. App. 162.   Nix was a divorce case in which the husband appealed, arguing that the trial court had erred: (1) in finding that a car was his wife’s nonmarital property; and (2) in failing to equitably divide his pension payments.  The Arkansas Court of Appeals was not able to reach the merits of the husband’s arguments, however, because of a finality problem with the order.

In Nix, the Arkansas Court of Appeals found two paragraphs in the divorce decree to be problematic.  The first problematic paragraph stated as follows:

The Court further finds that the parties owned certain real estate which constitutes the marital home. This property should be listed for sale immediately with an agreed upon realtor and listing price. The parties shall be equally responsible for the major repairs pending a sale however Ms. Nix will be responsible for any ordinary wear and tear and utilities. . . .

The second problematic paragraph stated as follows:

The Court finds that all of the property including but not limited to the Montana Fifth Wheel, the 2012 Arctic Cat, Ranger Boat motor and trailer all of which are on Schedule C are marital property. The parties shall have thirty days to reach an agreement regarding the division of marital personal property listed in Schedule C, otherwise the property shall be sold at private auction.

In holding that the divorce decree was not a final order, the Arkansas Court of Appeals held that “[s]everal matters have been left undecided between the parties.”  In particular, the Court of Appeals highlighted the following unresolved questions:

  • whether the husband and wife will agree on a realtor and listing price;
  • whether the husband and wife will agree on what constitutes a major repair and what constitutes ordinary wear and tear;
  • whether the husband and wife will reach an agreement regarding the remaining personal property; and
  • whether the husband and wife will agree on a date, place, and terms of sale for a private auction.

In reaching its conclusion that the divorce decree in Nix was not a final order, the Court of Appeals relied on Wadley v. Wadley, 2010 Ark. App. 733.  In Wadley, the divorce decree had provided as follows:

Unless otherwise specified herein, the parties shall have sixty (60) days from entry of this DECREE OF DIVORCE to agree upon a disposition of the remaining items of marital property. Any property division not agreed upon within the sixty (60) days shall be sold by public auction, with the parties responsible for hiring an auctioneer and advertising said sale. Any and all proceeds from the sale of the property, after the costs of the auctioneer and advertising shall be equally divided between the parties.

As in Nix, the court in Wadley had determined that there were simply too many unresolved questions left open by the order.  Therefore, the Court of Appeals had held that the order in Wadley was not a final order.

The Takeaway

There have been a number of cases lately dealing with finality, and although lack of a final order means that there is still the opportunity to appeal (once the final order is entered), there are still significant costs involved in having to rebrief a case. Therefore, the best option when attempting to pursue an appeal is to try to make certain that the trial court enters a final order.

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Arkansas Rule of Civil Procedure 54(b)As we have discussed previously, Rule 54(b) of the Arkansas Rules of Civil Procedure allows a court to issue a final judgment as to certain claims or parties (when multiple claims or parties are involved).  By doing so, the trial court makes it possible for the court’s rulings as to the specific claims or parties to be appealed before the other claims are heard.  This option is available “only upon an express determination, supported by specific factual findings, that there is no just reason for delay.” Ark. R. Civ. P. 54(b).

Billingsley v. Benton NWA Properties, LLC

In the recent case of Billingsley v. Benton NWA Properties, LLC, 2014 Ark. 65, the Arkansas Supreme Court examined a Rule 54(b) certificate and held that it was not sufficient.  In that case, the plaintiffs owned a piece of property that flooded, which the plaintiffs alleged caused approximately $3,500,000 in damages (including loss of value to the property).  The plaintiffs sued “many defendants” for the damage caused by the flood, and ultimately reached a settlement agreement with Benton NWA Properties, LLC.  Prior to trial on the remaining claims against the remaining parties, a dispute arose between the plaintiffs and Benton NWA Properties, LLC regarding the terms of the settlement agreement.  Therefore, the plaintiffs and Benton NWA filed competing motions to enforce the settlement agreement, and the trial court granted Benton NWA’s motion to enforce.  The plaintiffs sought to appeal, and the trial court agreed to enter a judgment along with a Rule 54(b) certificate.

The Arkansas Supreme Court raised, sua sponte, the issue of the sufficiency of the Rule 54(b) certificate, noting that the sufficiency of such a certificate is jurisdictional.  The Court looked at Holbrook v. Healthport, Inc, 2013 Ark. 87, in which the court had held that a one-sentence explanation in the Rule 54(b) certificate was insufficient.  In Billingsley, the trial court had written a substantial certificate (it was over 5 paragraphs long, most with more than one sentence).  Nevertheless, the court held that the 54(b) certificate “fail[ed] to even include a one-sentence factual finding” regarding any danger of hardship or injustice that could be alleviated by an immediate appeal.  Therefore, the Arkansas Supreme Court dismissed the appeal without prejudice.

The Takeaway

Based on Holbrook and now Billingsley, the key to an effective Rule 54(b) certificate appears to be to explicitly state the hardship or injustice that will result if an immediate appeal is not allowed.  Simply laying out the procedural history is not enough, even if the implication from the history is that it would be inefficient to allow the trial to proceed without having the appeal heard first.  So, make sure that any Rule 54(b) certificate not only lays out the history of the case, but also the specific problems that will occur in the future if the appeal is not immediately heard.

Related Posts:

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Posted by: Tasha C. Taylor | March 4, 2014

History Made with Arkansas’s First Majority-Female Supreme Court

Judge Rhonda WoodJudge Rhonda Wood’s Unopposed Election Leads to First Female-Majority Arkansas Supreme Court

With the filing period officially closed and all judicial candidates announced, the Arkansas Supreme Court will, for the first time in history, be made up of a majority of female justices.  Court of Appeals Judge Rhonda Wood is running unopposed for Position 7 on the Arkansas Supreme Court, the seat being vacated by Justice Cliff HoofmanJustice Hoofman was appointed in 2012 by Governor Mike Beebe to fill the seat being vacated at that time by retiring Justice Robert L. Brown.  As an appointee, Justice Hoofman cannot run for that seat.

We reached out to Judge Rhonda Wood on Monday concerning her thoughts about her place in this historic moment for the Arkansas Supreme Court:

“It was during my first year of law school that Arkansas elected the first female justice—Justice Imber Tuck. I remember my female classmates feeling excited that we broke that glass ceiling. I never dreamed that I would be part of the election cycle to break the next glass ceiling of having a majority female court. My gender doesn’t change how I follow the law, but rather changes little girls’ dreams from possibilities to probabilities.” 

The 2014 judicial elections in Arkansas will take place on May 20, 2014, during the primary elections.  Justice Karen R. Baker is running unopposed for Position 6, the seat she currently holds.  The only other open seat on the Arkansas Supreme Court is Position 2, which is being vacated by retiring Justice Donald L. Corbin.  Two candidates have filed for that position: Little Rock attorney Tim Cullen and Court of Appeals Judge Robin F. Wynne.  Regardless of the outcome of that race, the Arkansas Supreme Court will be soon be comprised of four women and three men.

Appointed Female Members of the Arkansas Supreme Court

Elsijane Trimble Roy was the first female to serve as an Arkansas Supreme Court Justice.  She was appointed to Position 2 on the Arkansas Supreme Court in 1975 by Governor David Pryor.  In 1995, Andree Layton Roaf became the first African-American female to serve on the Arkansas Supreme Court after being appointed to that position by Governor Jim Guy Tucker.  Betty Dickey was appointed by Governor Mike Huckabee to become the first female Chief Justice on the Arkansas Supreme Court in 2004.  In 2008, Governor Mike Beebe appointed Elana Cunningham Wills to serve in Position 3 on the Arkansas Supreme Court.

Elected Female Members of the Arkansas Supreme Court

In 1997, Justice Annabelle Imber Tuck made history by becoming the first female to be elected to the Arkansas Supreme Court.  Since Justice Tuck’s retirement from the Arkansas Supreme Court in 2009, three other female Justices have been elected to serve on the Arkansas Supreme Court, all of whom are current members of that Court: Justice Karen R. Baker, Justice Courtney Hudson Goodson, and Justice Josephine L. Hart.

With the addition of Judge Rhonda Wood in 2015, Arkansas will join the ranks of only nine other majority-female state high courts in the country: California, Maryland, New York, North Carolina, Ohio, Texas (Court of Criminal Appeals), TennesseeWashington, and Wisconsin.

Although only nine state courts of last resort currently have a majority-female membership, sixteen state high courts are now led by female Chief Justices: Alaska, ArizonaCalifornia, Maryland, Minnesota, Missouri, New Mexico, North Carolina, Ohio, South Carolina, Texas (Court of Criminal Appeals), Virginia, Washington, West Virginia, Wisconsin, and Wyoming.

* Hat tip to Tim Cullen at ReportedDecisions.com for the suggestion to research this topic.

Related Posts:

Little Rock Attorney Tim Cullen

*Andy and I are excited to report that our good friend and mentor, Tim Cullen, has announced his candidacy for Arkansas Supreme Court.  

I have known Tim for the past seven years, more than three of which were spent working with him and learning from him as an Associate Attorney at Cullen & Co., PLLC.  Andy also spent a year working with Tim at his firm.  Tim is an excellent attorney and advocate for his clients, and his years practicing primarily as an appellate attorney give him the experience needed to serve on the Arkansas Supreme Court.

The press release follows.

Little Rock attorney Tim Cullen announced today his bid for the Arkansas Supreme Court to fill the seat being vacated by Justice Donald Corbin.  Cullen practices law in Little Rock and has been lead counsel on appeal in more than 150 cases before appellate courts including the U.S. Supreme Court, Arkansas Supreme Court, U.S. Court of Appeals for the Eighth Circuit, and the Arkansas Court of Appeals.

“I have a strong work ethic and a reputation for detail and efficiency, having recently been recognized by my peers as one of the best lawyers in Arkansas in the unique area of appeals,” he said.  “I have broad experience in handling all of the different types of appeals that the Arkansas Supreme Court decides.”

“I believe as a lawyer, people trust you with their lives, and attorneys have a moral responsibility to them,” Cullen added.

His firm has taken on some of the largest appeals in the state.

“I believe a voter needs to know I have a deep and personal respect of the virtues of hard work, very high personal standards for the judiciary, and strong view that we must enforce the rule of law to everybody, equally,” he added.

Cullen also serves on a task force appointed by the Arkansas Supreme Court to implement electronic filing of appeal records and appeal briefs, which he believes can reduce costs of producing appeals and could save money by reducing the infrastructure required to store thousands of appeal records and briefs every year.

He served as an adjunct instructor in the University of Arkansas at Little Rock, and he received the Golden Gavel Award from the Arkansas Bar Association.

A native of Little Rock, Cullen graduated from the University of Arkansas where he served as student body president and also graduated law school from Fayetteville.  He worked with the late Judge Terry Crabtree at the Arkansas Court of Appeals and later opened his private law practice representing clients in appellate matters.

He lives in Maumelle with his wife Sarah and three children. The nonpartisan judicial election will take place May 20, 2014.

We have discussed the dangers of post-trial motions in a previous blog post.  In fact, in a CLE we presented to the Arkansas Trial Lawyers Association in 2011, we listed the filing of a post-trial motion as one of the “Top Five Ways to Wreck Your Next Appeal.”  Fellow blogger Tim Cullen recently discussed the same problem in a blog post discussing Virgil v. Morgan, 2013 Ark. App. 675, and also recommended avoiding post-trial motions unless absolutely necessary.  Now, Evangelical Lutheran Good Samaritan Society v. Kolesar, 2013 Ark. App. 723, gives us yet another reason to avoid post-trial motions.

Kolesar is a nursing home negligence case.  The plaintiff, who had been a resident of the nursing home for approximately eight months in 2009, filed suit against the nursing home on December 2, 2010.  On January 3, 2011, the nursing home removed the case to federal court and filed an answer that, among other things, reserved the right to enforce any applicable arbitration agreement.  On April 15, 2011, the federal court remanded the case back to state court.

After the case was remanded back to state court, the nursing home filed a motion to compel arbitration, based on its allegation that the resident’s husband had signed an arbitration agreement on the resident’s behalf.  The trial court held an evidentiary hearing on the motion (there was a dispute as to whether the husband had actually signed the agreement, and as to whether he was acting as her agent at the time), and at the conclusion of the hearing, the trial court took the matter under advisement.

On May 21, 2012, the trial court entered an order denying the motion to compel arbitration, with the order stating that the decision had been announced in open court.  Eight days later (May 29, 2012), the nursing home filed a motion seeking specific findings of fact and conclusions of law.  Because the trial court never ruled on the motion, the motion was deemed denied on June 28, 2012, and the nursing home filed its Notice of Appeal on July 20, 2012.  The Arkansas Court of Appeals raised, sua sponte, the issue of timeliness of the Notice of Appeal, and dismissed the appeal.

Rule 4(b) of the Arkansas Rules of Appellate Procedure–Civil governs when a post-trial motion extends the time to file a Notice of Appeal.  Under that rule, the following motions extend the period during which to file a notice of appeal:

a motion for judgment notwithstanding the verdict under Rule 50(b) of the Arkansas Rules of Civil Procedure, a motion to amend the court’s findings of fact or to make additional findings under Rule 52(b), a motion for a new trial under Rule 59(a), or any other motion to vacate, alter, or amend the judgment made no later than 10 days after entry of judgment . . . .

The question, then, was whether the nursing home’s motion fit into one of these categories and, more specifically, whether it qualified as “a motion to amend the court’s findings of fact or to make additional findings under Rule 52(b).”  Based on the language of Rule 52(b), the Court of Appeals held that the motion in this case did not fall into this category, holding instead that the nursing home’s motion was a Rule 52(a) motion.

Rule 52(a) of the Arkansas Rules of Civil Procedure provides as follows:

If requested by a party at any time prior to entry of judgment in all contested actions tried upon the facts without a jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58 . . . .  Requests for findings are not necessary for purposes of review . . . .  If an opinion memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein.

Rule 52(b) of the Arkansas Rules of Civil Procedure provides as follows:

Upon motion of a party made not later than 10 days after entry of judgment, the court may amend its findings of fact or make additional findings and may amend the judgment accordingly…. If the court neither grants nor denies the motion within 30 days of the date on which it is filed or treated as filed, it shall be deemed denied as of the 30th day.

Relying in part on Ark. Dep’t of Human Servs. v. Dix, 94 Ark. App. 139, 227 S.W.3d 456 (2006), the Court of Appeals pointed out the differences between the two types of motions.  A Rule 52(a) motion must be filed before a judgment is entered, while a Rule 52(b) motion may be filed up to ten days after a judgment is entered.  A Rule 52(a) motion is mandatory on the trial court, while a Rule 52(b) motion is not.  The Court of Appeals also noted that Rule 52(a) anticipates that a trial court would state its facts and conclusions of law, while Rule 52(b) anticipates that a trial court would amend its findings of fact or make additional findings of fact.

The Court of Appeals held that the motion in Kolesar was a Rule 52(a) motion, in spite of the fact that the nursing home cited Rule 52(b) in its motion, and in spite of the fact that it was filed 10 days after the entry of the order denying the motion to compel arbitration.  The Court of Appeals noted that there had been no findings of fact by the trial court, so there were no findings to amend under Rule 52(b).  In addition, the nursing home’s motion sought “specific findings of fact and conclusions of law,” language that is found in Rule 52(a), but not Rule 52(b).

Because the Court of Appeals held that this was a Rule 52(a) motion, the deadline for the nursing home to file a Notice of Appeal was not extended, meaning that the Notice of Appeal would have been due 30 days after May 21, 2012.

The opinion in Kolesar was written by Judge Gladwin and joined by Judge Walmsley, and a concurring opinion was written by Judge Gruber.  In her concurrence, Judge Gruber acknowledged that the decision is correct, but she expressed concern about the outcome.  She indicated that in this case, the outcome was not too harsh because it simply meant that the case would go to trial rather than be arbitrated.  She expressed concern, however, that there could be “a harsh result under slightly different circumstances,” and suggested that the Arkansas Supreme Court revisit Rule 52.

This case is yet another example of why, generally speaking, a post-trial motion simply is not worth the risk.  There is not much upside (trial courts often don’t rule on them anyway, causing them to be deemed denied, and when they do rule on them, they often “bullet-proof” their earlier order), but there is a lot of downside.  Therefore, our general recommendation is to avoid post-trial motions unless absolutely necessary.

In a December 2012 blog post, we questioned whether Bayer Cropscience LP v. Schafer, 2011 Ark. 518, represented a “possible departure from Arkansas’s strict preservation rules.” See Procedural Lessons from a $48 Million Dollar Appeal.  As readers of this blog will likely recall, the Arkansas Supreme Court in Schafer addressed whether the punitive damages cap, enacted by the legislature as part of the Civil Justice Reform Act of 2003, was constitutional.  The trial court had ruled from the bench that the cap was unconstitutional, and in its written order had implicitly held that the cap was unconstitutional (by upholding a jury verdict in excess of the cap).  However, the trial court had not addressed the constitutional argument in its written ruling, and in its ruling from the bench, the trial court had not stated which of two arguments it accepted in holding that the cap was unconstitutional.

In Schafer, the Arkansas Supreme Court held that the oral ruling from the bench was adequate.  The Court also held that the lack of an explanation for the trial court’s decision in its written opinion did not prevent the Arkansas Supreme Court from addressing the merits of the constitutional argument.  In our blog post from 2012, we noted that “[i]t will be interesting to see whether the Schafer preservation rule is followed by the Court in decisions to come.”  Last week, in Hardin v. Bishop, 2013 Ark. 395, the Arkansas Supreme Court fully embraced the ruling in Schafer, and overruled a handful of cases in the process.

The Facts

Although the more interesting part of the Hardin opinion (at least for appellate attorneys) is procedural in nature, a simplified summary of the facts is provided for context.  Hardin involved a brush fire that got out of control, damaging a tire shop and some electrical equipment owned by Entergy.  The fire had been started by Mr. Randy Wardlaw, who was burning brush on property that belonged to Ms. India Bishop.  The owner of the tire shop, along with Entergy, sued Mr. Wardlaw and Ms. Bishop (on the theory that Mr. Wardlaw was acting as Ms. Bishop’s agent).  In addition to compensatory damages, the plaintiffs sought to recover double damages under a fire prevention statute, Ark. Code Ann. § 20-22-304.

Ms. Bishop filed a motion for summary judgment, arguing that there was no question of material fact that Mr. Wardlaw had caused the damage, and further arguing that Mr. Wardlaw was not acting as her agent when he started the fire.  She also argued, in the alternative, that the fire prevention statute (which allowed the recovery of double damages) did not apply to her.  After a hearing, the trial court granted Ms. Bishop’s motion for summary judgment, but did not state a specific basis for the ruling.  The plaintiffs appealed to the Arkansas Court of Appeals, and the Arkansas Supreme Court accepted certification of the case to address the question of whether the plaintiffs’ arguments had been preserved for appeal, given that the trial court had not offered a specific basis for its ruling.

The Opinion: Hardin v. Bishop

In its opinion (written by Justice Courtney Hudson Goodson, who also wrote the majority opinion in Schafer), the Arkansas Supreme Court acknowledged that “the circuit court generally granted Bishop’s motion for summary judgment without ruling specifically on the arguments presented in the parties’ motions, briefs, and oral arguments.”  The Supreme Court pointed out, however, that the “primary argument” made by Ms. Bishop in her motion for summary judgment was that Mr. Wardlaw was not acting as her agent, and the plaintiffs’ primary argument was that there was a genuine issue of material fact with respect to whether he was acting as her agent.

The Arkansas Supreme Court next looked at the text of two rules.  First, the Court examined Rule 56(c)(2) of the Arkansas Rules of Civil Procedure, which provides that summary judgment is appropriate if the pleadings show that there is no genuine issue of material fact and that “the moving party is entitled to judgment as a matter of law on the issues specifically set forth in the motion.”  Second, the Court examined Rule 52(a) of the Arkansas Rules of Civil Procedure, which provides that “[f]indings of fact and conclusions of law are unnecessary on decisions of motions under these rules.”  (The Court also relied on this rule in reaching the merits of the case in Schafer.)  The Supreme Court appears to have drawn a distinction here between preservation when motions are involved and preservation in other types of cases, holding that “when a case does not involve a motion, we typically adhere to our well-established principle that the failure to obtain a ruling on an issue at the trial court level precludes a review of the issue on appeal.”

Based on these rules, the Supreme Court held that the agency issue was adequately preserved for appeal.  The agency issue had been raised by the parties in their motions and in their oral arguments before the trial court.  The trial court’s order stated that it was “[b]ased upon the adopted pleadings and argument of counsel,” and so the trial court’s order “encompassed the sole issue of agency presented to it . . . .”  Therefore, the agency issue was preserved.

Before moving to the merits of the plaintiffs’ argument regarding agency, the Arkansas Supreme Court acknowledged a line of cases in which the trial court had granted a motion for summary judgment and the Supreme Court had held that, in the absence of specific rulings on numerous claims, that the issue was not preserved for appeal.  In Hardin, the Arkansas Supreme Court held that “[t]o the extent that those cases and their progeny are inconsistent with the holding in the present case, we overrule them.”

The Takeaway: Appellate Practice Tips

This decision definitely relaxes the court’s prior strict preservation rules, and seems to adopt a more common-sense approach to preservation than perhaps has been used in the past.  In Hardin, the trial court had clearly based its decision on the agency issue.  In fact, the agency issue was the only issue raised in the briefs, other than Ms. Bishop’s argument that the statute allowing for double damages did not apply to her.  Because the trial court completely dismissed Ms. Bishop from the case (rather than simply limiting the amount of damages that could be awarded against her), it was clear that the trial court based its decision on Ms. Bishop’s agency argument.

This practical approach to preservation is certain to be welcomed by both trial counsel and appellate counsel.  Nevertheless, a word of caution is in order.  The Court in Hardin was examining a motion for summary judgment that examined only one issue.  In fact, the Arkansas Supreme Court noted two different times that the issue of agency was the “sole” issue raised in the motion for summary judgment, while noting that in the previous decisions that were inconsistent with Hardin, the motions involved “numerous claims.”  In addition, the Supreme Court noted that Hardin involved a motion, and seemed to draw a distinction with cases that do not involve a motion.  Therefore, the safest route still is to obtain a written ruling (along with a basis for the ruling, when the trial court will accommodate such a request) on any important argument that needs to be preserved for appellate review.

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Posted by: Tasha C. Taylor | August 1, 2013

New Arkansas Appellate Court Rules Effective August 1, 2013

Arkansas attorneys filing briefs and motions in the Arkansas Supreme Court or Arkansas Court of Appeals should be aware that two new rules go into effect beginning today (August 1, 2013) that change the procedure for filing briefs and pleadings in Arkansas’s appellate courts.  Arkansas Supreme Court Rule 3-7 requires that a cover sheet now be included with case initiating documents (the initial record or pleading) and Rule 1-8 requires that briefs and pleadings now be submitted electronically in addition to the paper copies also required by the Court’s rules.  The following is a summary of the two new rules.  Of course, we advise that you review these rules in full prior to filing anything in Arkansas’s appellate courts.

Rule 3-7. Cover Sheet

Rule 3-7 of the Rules of the Arkansas Supreme Court and Court of Appeals requires that a case initiating cover sheet be filed with the Clerk of the Supreme Court and Court of Appeals whenever an initial record or pleading is filed in one of Arkansas’s appellate courts. See In Re Adoption of Supreme Court and Court of Appeals Rule 3-7. Cover Sheet, 2013 Ark. 277.

The following is an image of the new appellate court cover sheet—a link to the cover sheet form on the Supreme Court’s website (as well as instructions for completing the form) can be found here.

Appellate Court Cover Sheet

Rule 1-8. Courtesy Electronic Copies

In an effort to move toward electronic filing in Arkansas’s appellate courts, the Arkansas Supreme Court and Court of Appeals are now requiring appellate attorneys to provide a courtesy electronic copy in PDF format of essentially all pleadings and briefs filed in those Courts. See In Re Adoption of Supreme Court and Court of Appeals Rule 1-8. Courtesy Electronic Copies, 2013 Ark. 256.  Note that this is in addition to the paper copies that are required by the Courts’ rules.  This new rule will apply to all motions, petitions, writs, briefs, responses, and replies. See Ark. Sup. Ct. R. 1-8(a).

Filing of the PDF document by email is not permitted under Rule 1-8.  Rather, appellate attorneys will be required to submit the PDF documents on external media (CD, flash drive, etc.) and will also be required to serve a copy on the other party.

It is important to note that compliance with Administrative Order 19 is still required with the PDF versions of documents that will be filed.  Furthermore, a very specific file naming convention is mandated by the rule.

Rule 1-8 also requires that appellate attorneys include in the paper version of the documents filed a Certificate of Compliance and Identification of Paper Documents not in PDF Format.

Anyone filing documents in the Arkansas Supreme Court or Arkansas Court of Appeals beginning today will need to carefully review this new rules before doing so.

PRACTICAL TIP: If you do not already have software installed on your computer that will allow you to easily convert Word documents to PDF format, there is free software available for download at the following two sites (our firm currently uses the Cute PDF software, which works great):

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