Temporary Custody Orders Not Appealable (And a Note of Caution)

March 21, 2015April 26, 2015 ~ Andy Taylor

Strother v. Strother

In Strother v. Strother, 2015 Ark. App. 196, the Arkansas Court of Appeals recently held that a decree that “does not contain a final award of custody” is not an appealable order. A review of Strother, along with several other cases on this topic, reveals that the line between a final custody order and a temporary custody order is not always clear, so attorneys should be cautious before choosing not to appeal from what might appear to be a temporary custody order.

In Strother, the dad and mom had married in 2001, and the mom had filed for divorce in 2013. In her complaint for divorce, the mom sought joint legal custody, with her having primary physical custody. The court appointed an attorney ad litem, and eventually held a hearing “on the divorce and custody issues.” The court then issued a letter opinion in which it granted the couple joint legal custody, and granted the mom primary physical custody.

With respect to custody issues, the circuit court’s order stated as follows:

[T]his court finds that the aforesaid orders of this court in regards [to] custody and other issues concerning the aforesaid two (2) minor children are temporary in nature; that an attorney ad litem will be appointed to represent the aforesaid two (2) minor children; that Defendant shall be solely responsible for payment of all attorney fees and expenses which will [be] owed to the attorney ad litem; and that issues concerning permanent orders in regard [to] custody and other issues concerning the aforesaid two (2) minor children will be determined in the future by agreement of the parties or by order of the court.

The Court of Appeals in this case examined whether this was an appealable order. Rule 2(d) of the Arkansas Rules of Appellate Procedure–Civil provides that “[a]ll final orders awarding custody are final appealable orders.” In other words, even if an order granting divorce isn’t otherwise considered a final order, if the order is final with respect to custody, then it will be final for purposes of appealing the custody determination.

In Strother, the Court of Appeals held that the order was not a “final order[] awarding custody.” The Court of Appeals noted that “the order specifically states that issues of custody ‘are temporary in nature’ and that ‘issues concerning permanent orders in regard [to] custody . . . will be determined in the future.'” Therefore, the Court of Appeals dismissed the appeal until a final custody award is entered.

In its opinion in Strother, the Court of Appeals cited to an Arkansas Supreme Court case, Gilbert v. Moore, 364 Ark. 127, 216 S.W.3d 583 (2005). In that case, the trial court had entered an emergency ex parte order granting temporary custody of the couple’s child to the father. Four days later, the trial court held a short hearing and ordered the custody of the child remain with the father, and that the mother was to receive weekend visitation. The trial court stated from the bench:

I signed an Ex Parte Order a few days ago which placed the temporary custody in the Plaintiff, the father. I really don’t know where this child is better off long term. I guess that’s something that is going to have to be resolved at a later date. I presume both of these parties want long term custody of this child. I may or may not be right about that. In the meantime I’m going to leave the Ex Parte Order in effect; however, the child shall spend each weekend with his mother beginning 6:00 p.m. on Friday and ending on 6:00 p.m. on Sunday. And when counsel and the parties are ready for this case to be heard in its entirety on its merits thoroughly by myself or somebody, probably somebody else, and hopefully make the right decision on where this child should grow up, then that’s what will happen.

The trial court went on to state from the bench that the order would be “on a temporary basis the child should stay with the father during the week and the mother during the weekends until this case can be resolved on its merits.” The order itself was not quite as specific as to the temporary nature of the order, but did state that custody would remain with the father “at this time.”

In Gilbert, the Arkansas Supreme Court held that the custody order was a temporary order and therefore not appealable. This, however, is where the note of caution comes in. The Arkansas Supreme Court held that “[w]hether a custody order is final or temporary is not dependent upon the style of the order,” and that “custody orders styled as temporary may be nonetheless final for purposes of appeal if the issue of custody was decided on the merits and the parties have completed their proof.” In Gilbert, the basis of the holding appears to have been that “the issue of custody ha[d] yet to be determined on its merits and . . . the parties ha[d] not completed their proof on the issue.”

This seems to be consistent with previous cases cited by the Arkansas Supreme Court in Gilbert. Although those cases predate the addition of “final orders awarding custody” to the list of appealable orders (that amendment was adopted in 1999), the holdings are still informative. In those three cases, the key issue seems to whether there has been a final hearing on the merits. In Sandlin v. Sandlin, for example, the Arkansas Supreme Court held that the order in that case was not appealable because “the main issue, that of custody,” had not been decided. 290 Ark. 366, 719 S.W.2d 433 (1986). The Arkansas Supreme Court noted that it had previously held that “there can be no appeal . . . until the proof has been completed and the order entered.” Similarly, in Jones v. Jones, the Arkansas Court of Appeals held that a custody order “is final for purposes of appeal if the the issue of custody was decided on the merits and the parties have completed their proof.” 41 Ark. App. 146, 852 S.W.2d 325 (1993).

In Chancellor v. Chancellor, 282 Ark. 227, 667 S.W.2d 950 (1984), the Arkansas Supreme Court held, based on the following, that the custody order was not final:

The record reflects that appellant has not yet completed her proof. The order in the present case did not terminate any cause or right, dismiss any party from the action or conclude their rights. By its very terms it is a temporary order. The court ordered an investigation of the respective homes and ordered that a report be made to the court. It is obvious the court did not intend to take final action on this matter based solely upon the fact that the mother may be living in adultery.

This brings us back to Strother. In that case, it appears that there had, in fact, been a hearing on the merits. The order, however, appears to have left custody open until an attorney ad litem could be appointed and could report back to the court. In that sense, the issue of custody was still open.

The Takeaway

Based on these cases, attorneys should never assume that a custody order is temporary based solely on the fact that the order is styled as a “temporary” order. These cases make clear that there’s more to the analysis than simply what the order is styled. Sometimes, it might not be entirely clear to counsel whether or not a custody order constitutes a “final order[] awarding custody.” In those situations, the best course of action is probably to file a notice of appeal as a precaution. Otherwise, the attorney risks allowing what appears to be a temporary order become a permanent, nonappealable order.

Today’s Investiture Results in Arkansas’s First Majority Female Supreme Court

January 6, 2015January 6, 2015 ~ Tasha C. Taylor

An investiture ceremony is being held at the Arkansas Supreme Court today at 1:00 p.m. for the swearing in of three justices: Arkansas Supreme Court Justice Karen Baker, Arkansas Court of Appeals Judge Rhonda Wood, and Arkansas Court of Appeals Judge Robin Wynne.

Supreme Court Justice Karen Baker was originally elected to the Arkansas Supreme Court in 2010. She was re-elected last May to serve an eight-year term on that Court.

Court of Appeals Judge Rhonda Wood was elected to Position 7 on the Arkansas Supreme Court in May of 2014. Judge Wood replaces Justice Hoofman, who was appointed to fill that position with the retirement of Justice Robert L. Brown at the end of 2012. Justice Hoofman will, in turn, fill the vacancy left by Judge Wood on the Arkansas Court of Appeals.

Court of Appeals Judge Robin Wynne was elected to Position 2 on the Arkansas Supreme Court in May of 2014. Judge Wynne will replace Justice Donald Corbin, who has held that position since 1990. Governor Beebe has appointed Mike Kinard of Magnolia to replace Judge Wynne on the Arkansas Court of Appeals.

As we’ve previously discussed, the addition of Judge Rhonda Wood to the Arkansas Supreme Court will result in Arkansas being one of only a few states with a female majority court of last resort, which is a first for Arkansas as well.

Proceedings Under Trust Code (Rather than Probate Code) Not Appealable Unless Final

October 29, 2014December 29, 2014 ~ Andy Taylor

In Bank of the Ozarks v. Cossey, 2014 Ark. App. 581, the Arkansas Court of Appeals addressed the question of whether an order that appears to be a non-final order is still appealable under Ark. R. App. P. (2)(a)(12), which permits an appeal from almost all orders entered in probate cases.

Only a brief summary of the facts of this case is necessary. In sum, there was a dispute about who was the trustee of the Hamilton Family Trust. One of the beneficiaries of the trust, Ms. Cossey, filed a petition claiming that Bank of the Ozarks was the trustee and demanding an accounting from Bank of the Ozarks. Bank of the Ozarks claimed it was not the trustee of the trust. The circuit court held that Bank of the Ozarks had acted as trustee, and ordered Bank of the Ozarks to perform an accounting within 30 days. Bank of the Ozarks appealed from this order, along with a separate order awarding attorney’s fees and costs to Ms. Cossey.

On appeal, the Court of Appeals first addressed the question of whether the order requiring an accounting was a final order. The court held that “[a]n order that contemplates further action by a party or the court is not a final, appealable order.” Because this order required Bank of the Ozarks to perform an accounting, and because there would likely be additional oversight and rulings by the circuit court, the Court of Appeals held that this was not a final order.

The Court of Appeals then turned its attention to Ark. R. App. P. (2)(a)(12) and Ark. Code Ann. § 28-1-116, which together permit appeals from almost all orders in probate cases. In fact, the Court of Appeals held that “[w]e have interpreted section 28-1-116(a) to allow an immediate appeal from almost any probate order.” However, the issue in this case related to who should be the trustee of the Hamilton Family Trust, a question governed by Ark. Code Ann. § 28-73-701. The question, then, is whether this statute is part of the probate code. Based on the notes to Ark. Code Ann. § 28-1-101, which lists the statutes that make up the probate code, the Arkansas Court of Appeals held that the statute applicable to this case (which was not included in the list) was not part of the Arkansas Probate Code. The Court of Appeals also examined Ark. Code Ann. § 28-1-104, which lists the types of cases that are considered to be probate cases. Although this statute was originally designed to set the jurisdictional guidelines when there were separate circuit, chancery, and probate courts, the Court of Appeals held that the statute is still applicable when determining appellate jurisdiction. Because trust matters are not included in the list of matters considered to be probate matters, the Court of Appeals held that the issues in Bank of the Ozarks were not probate matters.

Having concluded that the trust dispute in Bank of the Ozarks was not a probate matter, a final order was required. Because there was no final order, the Court of Appeals dismissed the appeal. The Court did, however, give some guidance to the parties as to how to proceed. The Court suggested in its opinion that a Rule 54(b) certificate (pursuant to which the parties may appeal from a non-final order) might allow the order to become appealable, although the Court of Appeals was very careful not to “comment[] on the propriety of a Rule 54(b) certificate . . .” Nevertheless, it’s probably a safe bet that this case will soon be before the Court of Appeals again—this time with a Rule 54(b) certificate.

Future Obligations and Finality Problems: Nix v. Nix

March 25, 2014April 26, 2015 ~ Andy Taylor

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.

— Andy Taylor

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

March 4, 2014March 4, 2014 ~ Tasha C. Taylor ~ 2 Comments

Judge 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 Hoofman. Justice 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), Tennessee, Washington, 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, Arizona, California, 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:

–Tasha Taylor

New Arkansas Appellate Court Rules Effective August 1, 2013

August 1, 2013August 24, 2013 ~ Tasha C. Taylor ~ 1 Comment

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.

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):

Foxit Reader–http://www.foxitsoftware.com/Secure_PDF_Reader/
Cute PDF–http://www.cutepdf.com/

–Tasha Taylor

Judge Mike Maggio Announces for Arkansas Court of Appeals District 2

July 3, 2013August 24, 2013 ~ Andy Taylor ~ 1 Comment

Last week, Judge Mike Maggio announced his candidacy for Arkansas Court of Appeals District 2, Position 1. Judge Maggio is running for the seat currently held by Justice Bill Walmsley, who was appointed by Governor Mike Beebe to replace Justice Jo Hart after her election to the Arkansas Supreme Court.

Judge Maggio currently serves as a circuit judge for the 20th Judicial District. He was appointed to the bench in 2001 by Governor Mike Huckabee, and has been elected twice since then. Prior to serving as a circuit court judge, Judge Maggio spent eleven years in private practice. Judge Maggio is a graduate of the University of Arkansas at Little Rock School of Law.

Counties included in Arkansas Court of Appeals District 2 are: Baxter, Boone, Cleburne, Conway, Faulkner, Fulton, Independence, Izard, Jackson, Lawrence, Marion, Newton, Pope, Randolph, Searcy, Sharp, Stone, and Van Buren.

Andy Taylor

Ford Motor Company v. Washington (Ford III): The Third Time Is Not the Charm (and it ain’t over yet)

June 5, 2013March 12, 2014 ~ Andy Taylor ~ 2 Comments

Introduction

We have written two previous blog posts regarding this case: The first blog post discussed Ford Motor Co. v. Washington, 2012 Ark. 325 (“Ford I“), and the second blog post discussed Ford Motor Co. v. Washington, 2012 Ark. 354 (“Ford II“). In these two opinions, the Arkansas Supreme Court held that there was not a final order because a party that was orally dismissed by the Court was never dismissed in any written order. (Ford I was the original opinion, and Ford II was an opinion denying the petitions for rehearing.) In Ford Motor Co. v. Washington, 2013 Ark. 88 (“Ford III“), the Arkansas Supreme Court again held that there was no final order, this time for a completely different reason. A brief review of the factual and procedural history of this case is in order.

**Factual & Procedural History of the Ford Case**

The facts of the case are as follows: Mr. Johnny Ray Washington and his son were travelling in a 1994 Ford Explorer when Ms. Karah Allen Williams ran a stop sign, colliding with Mr. Washington’s Explorer. Ford I, 2012 Ark. 325, at 2. The Explorer flipped twice, killing Mr. Washington (his son survived). Id. Mr. Washington’s wife, Ms. Paulette Washington, sued (individually and as administratrix of Mr. Williams’s estate) the manufacturer of the vehicle, the dealership that sold the vehicle, and the driver who ran the stop sign (Ms. Williams). Id. Ms. Washington eventually settled with the driver, and an order was entered dismissing her. Id. Ms. Washington also nonsuited her claims against the dealership, and her attorneys announced the nonsuit to the trial court, but no written order was ever entered dismissing the dealership. Id.

At the conclusion of the trial, the jury returned verdicts based on special interrogatories. Ford III, 2013 Ark. 88, at 3-4. The jury found that Ford and Ms. Williams were both proximate causes of Mr. Williams’s death, and assigned 50% of the fault to each. Id. (Although Ms. Williams had been dismissed from the lawsuit, she was included on the verdict form for apportionment purposes.) Id. at 2. The jury awarded $4,652,125 in compensatory damages and $2,500,000 in punitive damages. Id. at 3-4. The trial court incorporated the special interrogatories into its judgment, and stated: “Therefore, judgment is awarded to the respective plaintiffs as set out above.” Id.

Ford appealed, asserting that the circuit court had erred by: (1) refusing to admit evidence that the plaintiff was not wearing a seatbelt; (2) refusing to hold that some of Ms. Williams’s claims were preempted by federal law; (3) refusing to grant JNOV with respect to the plaintiff’s punitive damages claim; and (4) refusing to reduce the compensatory damages by half. Ford I, 2012 Ark. 325, at 1.

In Ford I, the Court held that the judgment was not a final order because although the dealership had been orally dismissed from the case, no written order had ever been entered dismissing the dealership. Id. at 2. Both parties filed petitions for rehearing, arguing that language in the notices of appeal and cross-appeal (in which the parties had stated that they abandoned all pending but unresolved claims) made the order a final order. Ford II, 2012 Ark. 354, at 1. In Ford II, the Arkansas Supreme Court rejected this argument, holding that that language in the notice of appeal dismissed only claims and not parties. Id. at 1-2.

After the Court’s holdings in Ford I and Ford II, the case was remanded to the trial court so that a written order could be entered dismissing the party with whom the plaintiffs had settled (the dealership). Ford III, 2013 Ark. 88, at 4-5. Ford Motor Company appealed again, raising the same four points on appeal. Id. at 1-2.

**The Ford III Decision**

On appeal in Ford III, the Arkansas Supreme Court raised, sua sponte, the issue of finality. Id. at 5. The Court held that in order for a judgment to be final, “the amount of the judgment must be computed, as near as may be, in dollars and cents and . . . the judgment must specify clearly the relief granted or other determination of the action.” Id. (citing Thomas v. McElroy, 243 Ark. 465, 420 S.W.2d 530 (1967); Ark.Code Ann. § 16–65–103). The Court held that the problem with the judgment that had been entered by the circuit court was that it did not set forth a specific dollar amount owed by Ford. Id. at 6. The Court held that “[i]nstead, the circuit court merely reproduced the jury’s answers to the interrogatories and gave no further guidance.” Id. In support of its holding, the Arkansas Supreme Court noted that in Ford’s brief, Ford had requested that the Arkansas Supreme Court clarify the amount of money that it owed. Id. Because the Court held that the judgment did not constitute a final order, the Court dismissed the appeal without prejudice. Id.

The Ford III Dissent

This opinion is notable not just for its holding, but also for a rather vigorous dissent, written by Justice Hart. Id. at 7-8 (Hart, J., dissenting). The dissent seems to be based on two considerations. First, Justice Hart noted that the record in the case was “huge,” consisting of a 2,208-page abstract and a 1,201-page addendum. Id. at 7. She then noted that the Supreme Court had previously reviewed the same judgment, and had remanded the case for lack of a final order (for failure to dismiss a party by written order), but had not raised this particular finality issue until the case had been remanded and was back up on appeal. Id.

Second, the dissent argues that the judgment was, in fact, a final order. Id. at 7-8. The dissent noted that the jury interrogatories (and the judgment) set forth the exact amount of compensatory and punitive damages, and that the interrogatories then apportioned fault, with 50% of the fault attributed to the manufacturer, and 50% of the fault attributed to the driver. Id. at 7. The dissent then argues that “[i]t is simply not defensible to assert that this judgment is not final because this court does not deign to perform a simple arithmetical operation that is routinely taught in the second grade—division by two.” Id. at 7.

Practical Impact of Ford III

The practical impact of this decision is that an order or judgment involving money must state the exact amount owed, in dollars and cents. There can be no ambiguity. Although the judgment in Ford III did not specifically set forth a formula (it was implied that the compensatory damage award would be reduced by half because the jury had determined that Ford was only 50% responsible, but that was not explicitly stated in the judgment), the opinion in Ford III seems to imply that even a formula would not have been sufficient. Therefore, the safest route to obtain a final judgment is to ensure that any money judgment sets forth an exact amount owed, down to the penny.

Related Posts:

Andy Taylor

Circuit Judge Phillip Whiteaker Elected to Arkansas Court of Appeals

November 9, 2012August 25, 2013 ~ Tasha C. Taylor

Voters from the twelve east Arkansas counties that make up District 1 elected Lonoke County Circuit Court Judge Phillip Whiteaker to the Arkansas Court of Appeals to fill the vacant seat for District 1, Position 2 in the general election that was held on November 6, 2012. Judge Whiteaker defeated Jonesboro Attorney Jeannette Robertson with a margin of approximately 10% of the vote (53.83% to 43.81%).

In the May 2012 nonpartisan judicial election held during the primary on May 22nd, the field of three candidates for District 1, Position 2 was narrowed to two when Jonesboro Attorney Richard Lusby was eliminated from the race and the runoff election between Judge Whiteaker and Jeanette Robertson was set for November 6, 2012.

Arkansas Court of Appeals Position 2 for District 1 was previously filled by Judge Raymond Abramson, a Holly Grove attorney who was appointed by Governor Mike Beebe in 2010 to fill the vacancy left on the Arkansas Court of Appeals when Judge D. Price Marshall Jr. was appointed and confirmed as a federal judge to the United States District Court for the Eastern District of Arkansas. Raymond Abramson ran for the Arkansas Supreme Court in the May 2012 nonpartisan judicial election, but was defeated by Arkansas Court of Appeals Judge Josephine Hart, who will begin her first term on the Arkansas Supreme Court in January 2013.

–Tasha Taylor

2012 Judicial Election Results for Arkansas Supreme Court and Arkansas Court of Appeals

May 23, 2012August 24, 2013 ~ Tasha C. Taylor ~ 2 Comments

The 2012 nonpartisan judicial election in Arkansas has yielded one new Arkansas Supreme Court Justice, three new Judges on the Arkansas Court of Appeals, and one run-off for an Arkansas Court of Appeals position. The following are results with nearly all precincts reporting.