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:


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 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.

Related Posts:

Watkins v. City of Paragould, 2013 Ark. App. 539, involves a long-running dispute (dating back to 2006) between landowners and a city that wanted to trim trees near the landowners’ property.  As a result of a problem with a Rule 54(b) certificate in the case, it looks like the dispute will last at least a little bit longer.

The case began when the City filed a petition in the Greene County Circuit Court claiming that the City was entitled to an easement over the landowners’ property, and seeking an injunction to prohibit the landowners from interfering with the City’s maintenance of its electrical lines.  The landowners filed a counterclaim (with 27 counts) against the City.  Many of the counts were dismissed, and others were set for trial (separately from the City’s request for an injunction).

On May 10, 2012, after a multi-day hearing, the trial court entered an injunction prohibiting the landowners from interfering with the maintenance of the City’s electrical lines.  The order did not address the landowner’s counterclaims which, as mentioned above, were set for a separate trial.  Nevertheless, the landowners filed a notice of appeal, purporting to appeal from the order granting the injunction, as well as several other orders.  The City moved to strike the notice of appeal for lack of a final order (because of the pending counterclaims). A subsequent hearing was held, and the landowners requested a Rule 54(b) certificate.  The court was open to the idea, but rather than attach the certificate to the original order, the trial court prefered to enter a separate order.  Therefore, on August 7, 2012, the trial court entered a nunc pro tunc “Addendum,” which contained a Rule 54(b) certificate.  The landowners filed additional notices of appeal, but did not reference the Addendum.

On appeal, the Court of Appeals refused to hear the case, dismissing the case without prejudice.  The Court based its holding on the language of Rule 54(b), which provides that the certificate “shall appear immediately after the court’s signature on the judgment . . . .” Ark. R. Civ. P. 54(b)(1).  The Court also noted that it was important to have the certificate appear within the order itself because doing so: (1) grants finality to the order; (2) establishes the identity of the order appealed from; and (3) establishes the date from which to calculate the deadline for the notice of appeal.

There are a couple of items to note with respect to this opinion.  First, the Court noted that the “Addendum” entered by the trial court on August 7, 2012 “was not attached to the court’s May 10, 2012 order; nor did it reiterate the findings and conclusions of law from the order, or incorporate or replicate the order in any way.”  From this, it seems at least possible that the Court of Appeals might have heard the appeal had the trial court taken one of these steps.

Second, in a footnote, the Court of Appeals pointed out the the landowners’ notice of appeal did not include a statement abandoning all pending but unresolved claims, which is required in most notices of appeal. Ark. R. App. P.–Civ. 3(e)(vi).  It appears that the Court of Appeals pointed this out simply to make 100% clear that the order from which the landowners had appealed was not a final order (had the landowners included the language, the order would have been a final order, because the landowners would have been abandoning the pending but unresolved counterclaims).  Please note that the abandonment language in Rule 3(e)(vi) is not required in cases involving a Rule 54(b) certificate.  In fact, doing so defeats the purpose of the Rule 54(b) certificate, because in many cases the abandonment language would make the order with the Rule 54(b) certificate a final order.

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.

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