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):

Maggio_PhotoLast 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.

The Arkansas Appeals Blog is pleased to welcome the newest blog to the Arkansas appellate practice blogging community: Reported Decisions (

Author Tim Cullen of Cullen & Company, PLLC created Reported Decisions to be “[a] blog about Arkansas appeals, new developments in appellate procedure, and other items of interest.”  Mr. Cullen’s blog will be an asset to Arkansas appellate practitioners as it will include a chronology of many of the more than 125 appeals he has handled before the Arkansas Court of Appeals, the Arkansas Supreme Court, and the United States Court of Appeals for the Eighth Circuit.

We look forward to following Mr. Cullen’s blog and learning from the insight his blog will provide to the Arkansas appellate community.  A link to Reported Decisions is included in our sidebar under “Blog Links.”


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 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 partiesId. 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:

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.

Related Posts:

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.

Related Posts:

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

« Newer Posts - Older Posts »



Get every new post delivered to your Inbox.

Join 53 other followers