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.