The Arkansas Rules of Appellate Procedure–Civil provide that “[a]n appeal may be taken from a circuit court to the Arkansas Supreme Court from . . . [a] civil or criminal contempt order, which imposes a sanction and constitutes the final disposition of the contempt matter.” Ark. R. App. P.–Civ. 2(a)(13). But what about an order that imposes sanctions, but doesn’t hold anyone in civil or criminal contempt?
In Hancook Tire Co., LTD v. Philpot, 2016 Ark. App. 386, the parties were involved in an ongoing discovery dispute. Eventually, the plaintiff (Philpot) filed a “Motion for Sanctions for Spoliation and Concealment of Evidence.” A hearing was held on the motion, and the trial court eventually issued a letter opinion in which it stated that, because of “the multiple hearings that have been necessitated because of the Defendants obtuse and unnecessary abuse of the discovery process,” the trial court would impose Rule 37 sanctions (in the form of attorney’s fees) “to deter any future similar conduct.”
The trial court then entered an order awarding a total of $43,025 in attorney’s fees because Hankook’s “conduct in obstructing discovery has been egregious . . . . [and] to deter further such obstruction of discovery in this matter.” In the order, the trial court stated that “[t]his Order is a final Order for purposes of appeal.” A purported Rule 54(b) certificate appeared at the end of the order. (The Rule 54(b) certificate was rejected by the Court of Appeals in this case because it merely tracked the language of the rule, rather than making specific factual findings; we have previously blogged on this topic, and so therefore will not go into detail on that issue in this blog post.)
The question in the Hancock case is whether an order that imposes sanctions rises to the level of an order of contempt that would make that order a final order for purposes of appeal. In Hancook, the Court of Appeals held that such an order was not an appealable order. Specifically, the Court of Appeals held as follows:
Hankook’s notice of appeal cited to the contempt-with-sanctions provision as the basis to invoke appellate jurisdiction, but the trial court here did not hold Hankook “in contempt,” although it could have so determined as an appropriate sanction under Rule 37(b)(2)(D). Rather, the trial court here entered an order for attorney fees for discovery obstruction. This is not a final, appealable order.
This distinction is a fine line, so counsel must be careful when making the decision whether or not to file a notice of appeal from an order imposing sanctions. It would appear that had the order simply added a few words (stating that one of the parties or counsel was being held “in contempt”), this order would have been considered a final, and, therefore, appealable order. This is yet another reason that it is vital for counsel to closely and carefully read every order before deciding whether or not to file a notice of appeal from that order.
A cautionary note is in order, however. As we have mentioned before, in light of the opinion in Massinelli v. Massinelli, 2016 Ark. App. 90 (and the cases upon which it relied), counsel should always be cautious about deciding not to file a notice of appeal from an order that is arguably final, even if it appears to be nonfinal.