In Ford Motor Company v. Washington, 2012 Ark. 354 (“Ford II“), the Arkansas Supreme Court addressed whether a party’s statement in its notice of appeal that it abandons all pending but unresolved claims is effective as a dismissal against a stray party.  Ford II is the Court’s opinion on a petition for rehearing, so before examining that case, we need to discuss the original case first.

We addressed the case of Ford Motor Company v. Washington, 2012 Ark. 325, (“Ford I“) in a previous blog post.  As discussed in that post, the plaintiff in that case sued three parties: the driver of a vehicle, the manufacturer of the vehicle, and the dealership that sold the vehicle.  The plaintiff settled with the driver, and an order was entered dismissing the driver with prejudice.  The plaintiff moved for a voluntary nonsuit against the dealership, and the motion was granted orally, but no order was ever entered dismissing the dealership.

In Ford I, the plaintiff prevailed at the trial level against the manufacturer, but when the manufacturer appealed, the Arkansas Supreme Court refused to hear the appeal for lack of a final order.  (Although not mentioned in Ford I, the Ford II opinion indicates that both parties filed notices of appeal/cross-appeal.)  The Arkansas Supreme Court held that the nonsuit against the dealership was ineffective because there was no written order dismissing the dealership.  In response to this decision, the plaintiff and the manufacturer-defendant jointly petitioned the Court for a rehearing, basing their argument on Searcy County Counsel for Ethical Gov’t v. Hinchey, 2011 Ark. 533.

In Hinchey, the plaintiffs alleged that the county judge had sold a piece of equipment to two buyers without following the statutory requirements for such a sale.  The lawsuit named both the county judge and the buyers as defendants.  The county judge filed a motion for summary judgment, which was granted.  The plaintiffs appealed, but the Arkansas Supreme Court refused to hear the appeal because the circuit court’s order granting the county judge’s motion for summary judgment did not dismiss the complaint against the buyers.

In its opinion in Hinchey, the Arkansas Supreme Court observed that the plaintiff had failed to include a statement in its notice of appeal that it abandoned any pending but unresolved claim.  Rule 3(e)(vi) of the Arkansas Rules of Appellate Procedure–Civil requires that this statement be included in all notices of appeal.  The rule provides that such a statement in the notice of appeal “operate[s] as a dismissal with prejudice effective on the date that the otherwise final order or judgment appealed from was entered.”

The Reporter’s Notes to the amendment to the rule state the purpose as follows:

This amendment will cure a recurring finality problem.  Too often–after the parties have paid for the record, filed it, and filed all their briefs on appeal–the appellate court will discover that what appears to be a final order or judgment is not final because a pleaded claim, counterclaim, or cross-claim remains unadjudicated.  This kind of stray claim destroys finality and renders an otherwise final order or judgment unappealable. E. g., Ramsey v. Beverly Enters., Inc., 375 Ark. 424, 291 S.W.3d 185 (2009); Rigsby v. Rigsby, 340 Ark. 544, 11 S.W.3d 551 (2000); Brasfield v. Murray, 96 Ark. App. 207, 239 S.W.3d 551 (2006). These stray claims often appear to have been forgotten by the parties or abandoned even though no order resolved them. It wastes parties’ and courts’ scarce resources to have two appeals in these situations.

In Hinchey, the Arkansas Supreme Court stated that if the plaintiff had included this statement in its notice of appeal, the statement “would have operated as a dismissal with prejudice of its claim against [the buyers],” meaning there would have been a final order and the court would have been able to hear the appeal.

With this background in mind, we now move back to a discussion of Ford II.  In Ford II, the plaintiff had included the required abandonment language in its notice of cross-appeal.  Therefore, both parties argued that the language operated as a dismissal of all of the plaintiff’s claims against the dealership.

The Arkansas Supreme Court disagreed.  The Court noted that both the text of the rule itself and the Reporter’s Notes refer to unresolved and/or stray “claims,” but not “parties.”  The Court also noted that the cases cited in the Reporter’s Notes addressed unresolved claims, and that none of those cases involved stray parties.  Based on this, the Arkansas Supreme Court held that “[t]he Rule does not . . . allow an appealing party to dismiss a party from the action by such a statement in a notice of appeal or notice of cross-appeal.”  The Court further held that “Rule 3 requires appellants and cross-appellants to abandon pending and unresolved claims, but it does not permit appellants and cross-appellants to dispose of parties in the same fashion.”

Finally, the Arkansas Supreme Court addressed its prior statement in Hinchey that seemed to indicate that such a statement in the notice of appeal would act as a dismissal of any stray parties.  Rather than attempting to distinguish the two cases, the Court simply held that the “statement in Hinchey was merely dicta.”

The result of this decision is that even if an appealing party includes the abandonment language (from Rule 3(e)(vi) of the Arkansas Rules of Appellate Procedure–Civil) in its notice of appeal, stray parties must have been dismissed in writing in order for the order to be final.  The abandonment language simply will not operate to dismiss stray parties from a lawsuit.

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Posted by: Tasha C. Taylor | November 9, 2012

Circuit Judge Phillip Whiteaker Elected to Arkansas Court of Appeals

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.

The first round of decisions from the Arkansas Supreme Court for its 2012-13 term included a holding on a familiar issue concerning the finality of decisions.  In Ford Motor Company v. Washington, 2012 Ark. 325, the Arkansas Supreme Court again reiterated that a written order is required in order for the voluntary nonsuiting of a party to be effective.

The case involved an automobile accident that involved a Ford Explorer and a Nissan Sentra.  The driver of the Explorer was killed, and the passenger (the driver’s son) was injured.  The plaintiff (the driver’s wife) sued individually, and on behalf of her son and her husband’s estate.  The plaintiff filed claims against the manufacturer of the vehicle (Ford Motor Company) and the dealership that sold the vehicle (Freeway Ford Lincoln Mercury, Inc.) for negligence, strict liability, failure to warn, and breach of warranties.  The plaintiff also filed a negligence claim against the driver of the Sentra (Karah Allen Williams).

The plaintiff eventually settled the claim against Ms. Williams.  Then, at trial, the plaintiff moved to nonsuit her claims against Freeway.  The trial court granted the motion orally, but the dismissal was never reduced to a written order.

At trial, the plaintiff prevailed on her claims against Ford and was awarded compensatory and punitive damages.  Ford appealed, arguing that certain evidence had been improperly excluded, that certain claims were preempted by federal law, that the punitive damages award should be reversed, and that the compensatory damages should be reduced.

The Arkansas Supreme Court held that the order in the case was not a final order.  Quoting from Arkansas Rule of Civil Procedure 41(a), the Court held that “[a] voluntary nonsuit is ‘effective only upon entry of a court order dismissing the action.’” Ford Motor Co., 2012 Ark. 325, at 2.  Because there was no written order dismissing Freeway, the order in the case did not adjudicate all claims against all parties.  Therefore, the order was not a final order, and the Arkansas Supreme Court dismissed the appeal without prejudice.

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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.

Arkansas Supreme Court

Arkansas Supreme Court Justice Position 4

Arkansas Court of Appeals

District 1 Position 2

*Runoff will be held November 6, 2012.

District 2 Position 2

District 3 Position 2

District 4 Position 1

Posted by: Tasha C. Taylor | April 6, 2012

In Memory of Justice Thomas Glaze

The Arkansas Supreme Court released a per curiam opinion yesterday entitled In Memory of Justice Thomas Glaze.  As a former law clerk at the Arkansas Supreme Court, I consider it an honor to have worked at the Court when Justice Glaze was on the bench.  It was always enjoyable to listen to Justice Glaze’s stories about his work to end election fraud in Searcy County, a history I had not been aware of as a child growing up in that county.  I admired and respected Justice Glaze for his years of service to our state.  He will be greatly missed.

For an excerpt from Justice Glaze’s book about “The day vote-buying stopped” click here to read the Arkansas Times issue from June 29, 2011.

Posted by: Tasha C. Taylor | April 3, 2012

2012 Arkansas Appellate Court Election Roundup

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

Elections for seven positions on Arkansas’s appellate courts will be held during the preferential primary next month, on May 22, 2012.

One position on the Arkansas Supreme Court is open along with six positions on the Arkansas Court of Appeals.  For more information about the candidates for each position, click on the links below.

Arkansas Supreme Court

Arkansas Supreme Court Justice Position 4

Arkansas Court of Appeals

District 1 Position 2

District 2 Position 2

District 3 Position 2

District 4 Position 1

District 4 Position 2

District 5 Position 1

Posted by: Tasha C. Taylor | December 14, 2011

Procedural Lessons from a $48 Million Dollar Appeal

On December 8, 2011, the Arkansas Supreme Court handed down its decision in Bayer Cropscience LP v. Schafer, 2011 Ark. 518.  The Court’s decision is significant for a number of reasons, not the least of which are a couple of procedural issues that might be easily overlooked upon first glance in light of the Court’s holding overruling Arkansas’s punitive damages caps.

Punitive Damages Cap Declared Unconstitutional

“We hold that section 16-55-208 is unconstitutional under article 5, section 32 as it limits the amount of recovery outside the employment relationship.”

In a decision that affirmed a $48 million dollar judgment in favor of Arkansas rice farmers, the Arkansas Supreme Court ruled that the punitive damage limitations contained in Arkansas Code Annotated section 16-55-208 are unconstitutional. Schafer, 2011 Ark. 518, at 12.

That statute, passed by the Arkansas General Assembly as part of the Civil Justice Reform Act of 2003, provided for each plaintiff a cap on punitive damages in the amount of $250,000 or three times the amount of compensatory damages (not to exceed $1,000,000). See Ark. Code Ann. § 16-55-208.

In its opinion, the Arkansas Supreme Court observed that the Arkansas Constitution gives the Arkansas General Assembly the power to limit the amount of recovery “only in matters arising between employer and employee.” Schafer, 2011 Ark. 518, at 12.  Article 5, section 32 of the Arkansas Constitution, as amended by amended 26, provides the following:

The General Assembly shall have the power to enact laws prescribing the amount of compensation to be paid by employers for injuries to or death of employees, and to whom said payment shall be made.  It shall have power to provide the means, methods, and forum for adjudicating claims arising under said laws, and for securing payment of the same. Provided that otherwise no law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property; and in case of death from such injuries the right of action shall survive, and the General Assembly shall prescribe for whose benefit such action shall be prosecuted.

Ark. Const art. 5, § 32.

On appeal, Bayer argued that article 5, section 32 of the Arkansas Constitution referred only to compensatory damages and not to punitive damages.  The Arkansas Supreme Court, however, disagreed: “Although compensatory and punitive damages serve differing purposes, an award of punitive damages is nonetheless an integrant part of ‘the amount recovered for injuries resulting in death or for injuries to persons or property.’” Schafer, 2011 Ark. 518, at 12 (quoting Ark. Const art. 5, § 32).  Accordingly, the Arkansas Supreme Court held that section 16-55-208 is unconstitutional under the Arkansas Constitution because it limits the amount of recover outside the employment relationship, which is expressly prohibited by article 5, section 32.

Possible Departure from Arkansas’s Strict Preservation Rules?

The ruling on the punitive damages caps is monumental in and of itself, but what makes it even more interesting is the Court’s analysis of how it was able to reach the merits of that decision, which was an issue that split the Court 6-1.

In her concurring opinion, Justice Karen Baker explained that while she agrees with the outcome reached by the majority, she would not have reached the merits of the constitutionality of Arkansas Code Annotated section 16-55-208 because she did not believe that issue was preserved for appellate review. Schafer, 2011 Ark. 518, at 24–25 (Baker, J., Concurring).  Justice Baker argued that because the circuit court ruled on the constitutionality of that statute from the bench and entered no written opinion concerning that issue, it was not preserved for appellate review. Id.  In support of her opinion, Justice Baker cited to a number of cases in which the Arkansas Supreme Court has previously declined to rule on constitutional issues that had been ruled on from the bench only and that had not been included in the written orders. See, e.g., Boellner v. Clinical Study Ctrs., LLP, 2011 Ark. 83, at 23, ___ S.W.3d ___, ___ (holding that the constitutional issue presented in that case was not preserved for appellate review because “[a]lthough the circuit court ruled on this issue from the bench, the final, written order did not address this issue.”).

In footnote 5, Justice Courtney Hudson Goodson, writing for the majority, responded to Justice Baker’s concurring opinion concerning the issue of the constitutionality of the punitive damages cap: “Despite the concurring justice’s protestations to the contrary, it is without question that the issue concerning the constitutionality of the statutory cap on punitive damages is preserved for appeal.”  Schafer, 2011 Ark. 518, at 14 n.5.  In this case, the constitutional issue was raised in a pretrial motion and discussed in a hearing, at which time the circuit court orally declared from the bench that the statute in question was unconstitutional.  According to the Arkansas Supreme Court, its preservation rules “require nothing more.”  Id.

The majority went on to explain that “[a]lthough considered the better practice for a circuit court to explain its decision, findings of fact and conclusions of law are not necessary with regard to decisions on motions.” (emphasis added). Id.  In footnote 5, the majority further explained that if the concurrence was correct in its view, then the Court would also have been precluded from reaching the merits of the circuit court’s decisions in a couple of other issues regarding motions in this appeal, as the circuit court also disposed of those other motions by ruling from the bench. Id.  The Court’s conclusion is that “the circuit court’s failure to specify the ground upon which it found the statute unconstitutional does not deter us from performing our duty to review the circuit court’s decision.” Id.

Although couched as a decision rooted in precedent, Justice Baker seemed to view the Arkansas Supreme Court’s decision to reach the merits of the constitutional issue in this case as a departure from the Court’s strict preservation rules.  It will be interesting to see whether the Schafer preservation rule is followed by the Court in decisions to come.  Regardless of whether it is cited in future decisions, there can be no doubt that it will be cited in numerous appellant’s briefs in the months and years to come.

Perfecting the Notice of Appeal in Light of Posttrial Motions

“A notice of appeal must be judged by what it recites and not what it was intended to recite.” 

Among other arguments on appeal, Bayer also challenged the $42,000,000 punitive damages award as excessive under the U.S. Constitution.  The Arkansas Supreme Court refused to reach this issue because it held that it was not preserved for appellate review. Schafer, 2011 Ark. 518, at 23.

Bayer made its arguments to the circuit court concerning the excessiveness of the damages award in its posttrial motion for new trial and remittitur. Id.  Because the circuit court did not take action on the posttrial motion within the 30-day window allowed pursuant to Rule 4(b)(1) of the Arkansas Rules of Appellate Procedure—Civil, that motion was deemed denied at the expiration of the 30-day period. Id. at 23–24.  When the Bayer defendants filed their notices of appeal (all of which were identical), they failed to state in the notices of appeal that the appeal was being sought from both the judgment that was entered as well as the denial of the motion for new trial and remittitur. Id.  The Arkansas Supreme Court held that it is necessary to file a notice of appeal from the denial of the posttrial motion in order to appeal from the issues raised therein. Id. at 24.  According to the Court, unless the notice of appeal references both the final judgment and the deemed-denied ruling, the only appealable matter will be the original order. Id.

The following is a timeline of the post-trial procedural events that occurred in this case:

  • May 5—Judgment Entered
  • May 19—Bayer timely filed motions for judgment notwithstanding the verdict, new trial, and remittitur.
  • June 18—Motions deemed denied.
  • July 19—Each Bayer defendant filed separate and timely notices of appeal from the judgment entered on May 5, 2010.

See Schafer, 2011 Ark. 518, at 8.

To have preserved this issue for appeal, each of the Bayer defendants could have explained in their notices of appeal that they were appealing from both the May 5th judgment and the lower court’s denial of its motion for new trial and remittitur in the notice of appeal it filed on July 19th.  Another option would have been to file a notice of appeal within 30 days of the date the judgment was entered in this matter.  Then, following the deemed-denied date of June 18th, Bayer could have filed an amended notice of appeal within 30 days of June 18th that indicated that it was appealing from both the May 5th judgment and the denial of its motion for new trial and remittitur.

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Fort Smith Attorney Brandon Harrison
Fort Smith Attorney Brandon Harrison

Fort Smith Attorney Brandon Harrison, a former law clerk to U.S. District Judge D.P. Marshall Jr., has officially announced his candidacy for Arkansas Court of Appeals, District 4, Position 1.  Currently Judge John Robbins holds that position, but plans to retire in 2012.

Harrison, a published legal writer, is currently a practicing attorney at his own firm in Fort Smith, concentrating on civil and criminal appeals and civil litigation.

In announcing his candidacy, Mr. Harrison stated, “Our greatest responsibilities are to ensure access to the courts in the first instance and see that parties have their appeals decided on the merits as often as possible.”

Mr. Harrison has been published in The Arkansas Lawyer, the Arkansas Law Review, and the newsletter of the Pretrial Practice and Discovery Committee of the American Bar Association, and he also authored a chapter of the Arkansas Bar Association’s Handling Appeals in Arkansas.

Harrison’s Press Release is available here.

Circuit Court Judge Looney of Mena has also announced his candidacy for District 4, Position 1.

UPDATE: Attorney Brandon Harrison’s announcement letter to attorneys in his district is attached here.

Searcy County District Court Judge Mitch Cash has joined the race for the Arkansas Court of Appeals seat for District 2, Position 2.  Circuit Court Judge Rhonda Wood has previously announced her candidacy for this position.

Prior to being elected District Court Judge, Judge Cash was a trial lawyer for more than 10 years.  In addition to his role as a judge and maintaining a law practice, Judge Cash owns a title insurance agency, a car wash, and a beef cattle operation.  Judge Cash and his family were recently selected as this year’s Searcy County Farm Family of the year.

View Judge Cash’s announcement letter here.

Judge Rhonda Wood Announces Candidacy for Arkansas Court of Appeals
Circuit Court Judge Rhonda Wood

Earlier this month, Judge Rhonda Wood announced her decision to run for the Arkansas Court of Appeals seat for District 2, Position 2, which is currently held by Cliff HoofmanHoofman was appointed to that seat in January of this year when newly elected Justice Karen Baker left that position to begin her term on the Arkansas Supreme Court.  Because he was serving by appointment, Hoofman cannot run for that seat in the 2012 election.

Judge Rhonda Wood is a Judge for the 20th District Circuit Court of Arkansas.   She was appointed by Governor Mike Huckabee to that position in 2006 to serve  a two-year term, and in 2008 she was elected to remain in the position for another six-year term.

Prior to taking the bench, Judge Wood was the Assistant Dean of Student Development at the UALR Bowen School of Law.  Before her tenure at the law school, Judge Wood owned a private law practice in Conway.  She was also a former Associate Attorney at Williams & Anderson, LLP.

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