The Court of Appeals in Jackson, et al v. Iberiabank, 2020 Ark. App. 372, reiterated a prior holding: That the bankruptcy of one defendant does not create a final order as to another defendant. But, as discussed below, that can create a trap for attorneys if the bankrupt defendant gets dismissed later.

In Jackson, a bank sued two defendants (an individual and a corporation) for defaulting on a promissory note. After the complaint was filed, the corporation filed for bankruptcy. This, of course, caused the corporation to receive the protections of the automatic bankruptcy stay, preventing the bank from proceeding against the corporation. The bank then filed–and prevailed on–a motion for summary judgment against the individual defendant, and the individual defendant appealed.

On appeal, the Arkansas Court of Appeals raised sua sponte a jurisdictional issue: Was the summary judgment order against the individual defendant a final order for purposes of appeal? Relying on prior similar cases, the Arkansas Court of Appeals held that one defendant’s bankruptcy “does not affect the lack of finality.” The Arkansas Court of Appeals further held that “while [the bank’s] claims against [the corporation] were stayed by the bankruptcy court when the summary-judgment order on appeal was entered, those claims remained pending and the trial court could reacquire the ability to rule on them at any time.” Therefore, the court dismissed the appeal. The dismissal was without prejudice, so the appellant will have another shot at this once the finality issue can be resolved at the trial court.

For an example of a nightmarish scenario where the Arkansas Court of Appeals dismissed an appeal with prejudice, one need look no further than Ballard v. Allied Financial, Inc., 2016 Ark. App. 539, which was cited in Jackson. In Ballard, a bank sued a couple for replevin to recover a vehicle, and later added the repair facility that had actual possession of the vehicle as a defendant. The couple filed bankruptcy, giving them the protection of the automatic stay. The repair facility did not timely file an answer, and an order of default was entered against the repair facility. The repair facility then filed a notice of appeal. After the repair facility filed its notice of appeal, the court dismissed the couple without prejudice. The repair facility did not file a notice of appeal from that dismissal order.

On appeal, the Arkansas Court of Appeals held that the default judgment against the repair facility was not a final order. However, once the dismissal was entered as against the couple, a final order was created, even though the dismissal as to the couple was without prejudice. Because the repair facility did not file a notice of appeal from the order dismissing the couple, the Court of Appeals held that it did not have jurisdiction to hear the appeal. The court’s reasoning was that the appeal from the first order wasn’t effective because that order was a nonfinal order, and there was no notice of appeal from the second order (and, of course, it was too late to file a notice of appeal by the time the Court of Appeals considered the case). Therefore, the Court of Appeals dismissed the appeal with prejudice.

Probably the cleanest solution to this problem is to try to get the circuit court to attach a Rule 54(b) certificate to the order against the non-bankrupt party. We have previously blogged about Rule 54(b) certificates. And the safest thing to do whenever multiple orders are being entered is to file notices of appeal (and amended notices of appeal) early and often.

Posted by: Andy Taylor | March 26, 2020

Creating Bookmarks in Adobe

We are often asked about creating bookmarks in Adobe, so this post provides a brief explanation of the basics of creating bookmarks. PLEASE NOTE that under the current rules, you must create hyperlinks in your appellate briefs. For instructions on how to do that, visit our previous blog post on the topic.

So, why would anyone need to know about bookmarks? Two reasons come to mind. First, the proposed rules regarding electronic filing require the use of bookmarks. So, if you’re planning to participate in the pilot project, you’ll need to know how to use bookmarks. Second, for ease of navigation, we usually add bookmarks even when we’re proceeding under the current rules (in addition to the required hyperlinks). We do this because we’ve heard anecdotally that some judges prefer bookmarks to hyperlinks, and we think the proposed rule changes (which mandate bookmarks) support that view.

With that background in mind, we move now to the directions. (Note that in the screenshots below, we have simply used the Arkansas Supreme Court’s model appellant’s brief.)

Step 1: Open the bookmarks pane

Click the icon on the left side of the screen that looks like an old-school bookmark. (If you cannot see that icon, there is a very small right-facing arrow that you’ll need to click first.)

Step 2: Browse to the portion of the brief that you are bookmarking

At this point, you’ll simply browse to the part of the brief you want to bookmark. If you want to make Step 4 slightly easier, highlight the text at the beginning of that portion of the brief.

Step 3: Click the “New Bookmark” button

Once you’ve browsed to the page you’re bookmarking, click the “New Bookmark” button.

Step 4: Name your bookmark

If you highlighted the text in Step 2, then your bookmark will already be named. Otherwise, just type the name of the bookmark.

There are more advanced features to bookmarking (such as nesting), but those are outside the scope of this blog post.

Posted by: Andy Taylor | March 23, 2020

Covid and the Courts

Introduction

Courts in Arkansas (both state and federal) have taken a number of steps to deal with the COVID-19 crisis.  This post seeks to be a repository of information relating to court closings, cancellations, and other changes relating to courthouse operations.  There are a few additional resources at the very bottom of this post that might be of particular interest to attorneys (such as links to the executive orders and ADH rules relating to restaurant closures in Arkansas, for example).  If you see anything that needs to be updated, please let us know!

Notarizing Documents Via Video Conference

On March 30, 2020, Governor Hutchinson issued Executive Order 20-12, which applies to notaries public who: (1) are licensed attorneys or title agents (or who are supervised by attorneys or title agents); or (2) work for a financial institution registered with the Arkansas State Bank Department.  Eligible notaries public may notarize documents via video conference, and doing so meets the “in person” or “in the presence of” requirement.  There are more details in the executive order, so please read it before beginning to notarize documents via video conference.

Arkansas State Courts

The Arkansas Supreme Court has released several per curiam decisions relating to court operations in Arkansas.

June 11, 2020 Per Curiam

The June 11, 2020 per curiam “announce[s] . . . new protocols to resume some in-person proceedings while maintaining the safety of the proceedings’ participants, along with the safety of the greater public.”  Those protocols include:

  •  A limit of 50 people in the courtroom/venue where court is conducted.  The per curiam also requires adherence to Arkansas Department of Health Guidelines (face masks/coverings, 6-feet social distancing, temperature checks, health questionnaires, hand soap/sanitizer available, and frequent sanitization of high-touch areas. 
  • An end to the suspension of jury trials as of June 30, 2020, meaning that jury summonses may be issued immediately for jury trials that begin on or after July 1, 2020.
  • Authorization to conduct civil jury trials, in whole or in part, via videoconference.  Criminal jury trials must be conducted in person, except that voir dire may be conducted by videoconference if all parties agree.
  • Continuation of the suspension of Rule 4(i) (service of process).

The Arkansas Supreme Court made clear that the per curiam does not mandate the resumption of in-person proceedings; it merely permits the resumption of in-person proceedings.  The decision of whether to resume in-person proceedings is left up to individual judges.

Justice Robin F. Wynne dissented from the per curiam decision with respect to the resumption of jury trials, arguing that “[t]his is simply too soon in light of the rise in the number of COVID-19 cases in Arkansas in recent days.”

May 8, 2020 Per Curiam

The May 8, 2020 per curiam announces that all courts may resume hearings (subject to certain restrictions) on May 18, 2020.  The preferred method is by video conference, but the hearings may also be conducted in-person or by audio conference (or a combination of methods). The manner in which the hearing is to be conducted is at the discretion of the presiding judge. Any party may object to the type of hearing, with the objection to be ruled on by the presiding judge. Courthouses and courtrooms must comply with Arkansas Department of Health guidelines. 

The Arkansas Supreme Court also updated the suspension of deadlines that had been announced in the April 28, 2020 per curiam.  The suspension of the deadline for service of process is still in effect.  However, the suspension of deadlines for discovery responses (interrogatories, requests for production, and requests for admission) has been rescinded. All discovery that was suspended during that time is due the later of: (1) ten business days of today; or (2) the original due date of the discovery.

April 28, 2020 Per Curiam (Evictions)

The April 28, 2020 per curiam relating to evictions requires that all eviction/failure-to-vacate complaints/charges plead affirmatively that the property in question is not covered by the CARES Act.  This per curiam drew a dissent from Justice Womack (joined by Justice Wood).  Justice Womack’s dissent argues that: (1) the per curiam violates separation of powers; (2) the per curiam is “a solution in search of a problem” (because the number of evictions cases is down); and (3) the per curiam “tip[s] the scales of justice” in favor of tenants.

April 28, 2020 Per Curiam (Deadlines)

The April 28, 2020 per curiam relating to court rules suspends certain time requirements contained in the Arkansas Rules of Civil Procedure.  The following deadlines are suspended:

  • Service of Process (Ark. R. Civ. P. 4(i) (circuit court)) (Ark. Dist. Ct. R. 3) (district court)
  • Responses to Interrogatories (Ark. R. Civ. P. 33(b))
  • Responses to Requests for Production/Inspection (Ark. R. Civ. P. 34(b))
  • Responses to Requests for Admission (Ark. R. Civ. P. 36(a))

These deadlines are suspended until further notice from the court.  Justice Wood (joined by Justice Womack) dissented from this per curiam.  Her arguments were that: (1) this is a “late in the game” change; (2) the rules already permit extensions on a case-by-case basis; (3) rule changes should go through a deliberative process; and (4) the extension leads to uncertainty for courts trying to clear their dockets and for defendants who have not been served.

April 23, 2020 Per Curiam Opinion

The April 23, 2020 per curiam contains two important updates:

  • Extends the suspension of in-person proceedings through May 15, 2020.
  • Continues to allow the excepted provisions from the May 17, 2020 per curiam, but requires that they be held remotely unless doing so is “not possible or feasible.”  If the proceedings are held in person, then: (1) no more than 10 persons may gather in the courtroom or in areas around the courtroom; (2) participants must wear face coverings when possible; and (3) participants in the courtroom must follow social distancing guidelines.

April 3, 2020 Per Curiam Opinion

This per curiam is similar to the prior per curiam opinions, but extends some of the dates:

  • Suspension of in-person proceedings (with the exceptions previously announced) now extended through May 1, 2020.
  • Suspension of juror summons is extended through June 30, 2020.

March 20, 2020 Per Curiam Opinion (2020 Ark. 125)

This per curiam institutes three big changes from the prior per curiam (which was issued on March 17 and which is explained in detail further down in this post).

  1. Extends the suspension of in-person proceedings (announced in the March 17, 2020 per curiam decision [see below]) through Friday, April 17, 2020.
  2. Closes the Justice Building in Little Rock (except the clerk’s office) until further notice.  NOTE: Even though the clerk’s office is open, it is our understanding that the clerk’s office is not requiring paper briefs to be filed until 5 days after the Justice Building reopens.
  3. Delegates to the Clerk authority to grant COVID-19 extensions.  The exact language is as follows:

In addition to the existing authority of the Clerk of the Supreme Court and Court of Appeals to grant filing extensions, the Clerk may also grant extensions in response to this pandemic. A request for a filing extension will be granted by the Clerk if the grounds for the extension relate to COVID-19 and the length of the extension is reasonable under the circumstances. Such requests should indicate whether any opposing party has an objection.

We’re going to dig a little deeper into point three because it directly affects appellate practice.  Recall that the Clerk already has authority to grant a 7-day extension (basically, an automatic extension) under Arkansas Supreme Court Rule 4-4(f)(1).  This extends that expansion authority to any case that is affected by COVID-19.  The appellate courts are likely to be faced with a significant number of these requests, and this appears to be an effort by the Arkansas Supreme Court to streamline that process.  This, in our opinion, is a positive move by the court.  The court is always extremely timely in dealing with extension requests, but this will expedite the process even more and give those attorneys dealing with COVID-19 one less thing to worry about.

Read More…

As we noted in our original post (below), the Arkansas Supreme Court has proposed a set of rule changes that abolish the abstracting and addendum requirement.  In the original post, we promised to provide updates and more details, so we’re doing that now. Before delving into those details, please note that these are proposed revisions, so they are subject to change.  However, if you can get your record in electronic format, you may participate in a pilot project using these rules.  So, with that said, here are the major changes (and, of course, review the per curiam before filing your brief; this is just a general overview):

The Biggest Change: Abolition of the Abstracting and Addendum Requirement

This, of course, is the biggest change.  Attorneys are no longer required to prepare an abstract or an addendum.  Rather, attorneys will refer to the relevant page number in the record.  As mentioned below, the record will now be comprised of two separate portions: a pleading portion and a transcript portion.  If you cite to the pleading portion of the record, use the format (RP 10), and if you cite to the transcript portion, use the format (RT 10).  The court has a computer program that converts those citations to links to the relevant portion of the record.

Preparation and Filing of the Record

As mentioned above, there will now be two portions of the record: pleadings and transcripts.  The record must be in electronic format (PDF), and each portion of the record must be sequentially numbered such that the first page of the PDF is the first page of the record.  This means that whatever the first page of the PDF is (cover page, table of contents, etc.), it must be page 1.Under the proposed rule, attorneys are still responsible for filing the record, but unlike in the past, the record can now be filed electronically.  

Brief Components

In addition to the elimination of the abstract and addendum, the informational statement (the form that included questions about the appeal and the brief) has been eliminated.  The jurisdictional statement has more specific requirements under the proposed rule than under the current rule.  There are also a couple of new sections: a request for relief and a certificate of compliance with Administrative Order No. 19 (relating to confidential information) and with the word-count limitations (discussed in more detail below).  Finally, the “statement of the case” has been replaced with the “statement of the case and facts.”  

Length Limitations

There are two significant changes to the length of the brief.  First, rather than limiting the statement of the case to a certain number of pages and the argument to a certain number of pages, the limitation is a global limitation that can be allocated in whatever way makes the most sense.  Second, the limitation is converted to a word limit, rather than a page limit. The word count includes the jurisdictional statement, the statement of the case and the facts, the argument, and the request for relief. All other portions of the brief are disregarded for purposes of the word count. Here are the limits:

Brief TypeWord Count Limit
Appellant’s Brief8,600
Appellee’s Brief8,600
Reply Brief2,875
Appellee’s/Cross-Appellant’s Brief14,325
Reply/Cross-Appellee’s Brief11,475

 

ORIGINAL POST

As Justice Rhonda Wood described it on Twitter, there was some “HUGE” news from the Arkansas Supreme Court this morning:

Arkansas Supreme Court

We’re still reading the per curiam, and it’s full of changes, 

but here’s a brief synopsis (you can expect a more detailed examination later).

 

First, effective immediately, attorneys may begin requesting electronic records from the circuit clerk, and the circuit clerk is required to provide the record in electronic format.

Second, the Arkansas Supreme Court published for comment revisions to the rules that accommodate these electronic records.  Those rules abolish the requirements of an abstract and addendum.  

Third—and here’s the best part—even though those rules are currently only published for comment (meaning they are not in effect yet), attorneys who choose to file their records electronically are permitted to file under the new rules as part of a pilot project.

As the Supreme Court noted in its per curiam, the abstracting requirement (and, to a lesser extent, the addendum requirement) had outlived their usefulness.  In our opinion, the abstract adds needless time and expense (both in attorney’s fees and printing costs) to the appellate process, it is confusing, and even a well-done abstract can’t effectively capture what occurred at trial.  This is a good move, and we look forward to seeing it fully implemented.  And you can rest assured that we will never order another paper record again!

In Barton v. Arkansas Department of Human Services, 2019 Ark. App. 239, the Arkansas Court of Appeals affirmed a circuit court’s termination of a mother’s parental rights to her three children. In doing so, the Court of Appeals gave an example of just how specific they expect objections to be at trial.

One of the pieces of evidence used against the mother in Barton was a psychological evaluation that recommended that the mother could not care for the children by herself. In the order terminating parental rights, the circuit court specifically stated that it had relied, at least in part, on the psychological evaluation.

On appeal, the mother argued that the psychological evaluation was inadmissible hearsay. The mother’s attorney had objected at trial, stating: “I will object unless the psychologist testifies,” and “[I]t’s my position that the psychologist needs to be here to testify.” Nevertheless, the Arkansas Court of Appeals refused to address the issue.

In refusing the address the issue, the Court of Appeals held that this objection was “vague.” Specifically, the Court of Appeals held that this objection could have been a hearsay objection, but it also could have been an authentication objection or a right-to-cross-examine objection.

This case shows the importance of being as specific as possible when raising objections. In fact, it is quite possible that this is one of those instances where everyone in the courtroom knew and understood what the objection was about, but it’s just not reflected in the record. Because Arkansas appellate courts are often very strict about objections, we always urge extreme caution when trying to preserve an objection for appeal.

The Second Annual 2019 Justice Donald L. Corbin Appellate Symposium will be held at the University of Arkansas School of Law in Fayetteville on Thursday, March 28th through Friday, March 29th, 2019.

Speakers this year include a number of federal and state court judges from courts across the country.  The speakers for the event are as follows:

  • Mr. Howard Bashman, Offices of Howard J. Bashman
  • Mr. Kannon Shanmugam, Williams & Connolly
  • Judge Ralph R. Erickson, Eighth Circuit Court of Appeals
  • Chief Judge Lavenski Smith, Eighth Circuit Court of Appeals
  • Judge Duane Benton, Eighth Circuit Court of Appeals
  • Judge Jane Stranch, Sixth Circuit Court of Appeals
  • Mr. A. Clifford Edwards, Edwards, Frickle & Culver
  • Judge James Graves, Fifth Circuit Court of Appeals
  • Judge Michael Brown, Arizona Court of Appeals
  • Judge Lucinda Jesson, Minnesota Court of Appeals
  • Judge Robert Gladwin, Arkansas Court of Appeals
  • Judge Mary Briscoe, Tenth Circuit Court of Appeals
  • Joe Regalia, King & Spalding
  • Lee Rudofsky, Wal Mart
  • Tasha Taylor, Taylor & Taylor Law Firm
  • Abigail Perdue, Wake Forest University School of Law
  • Tim Cullen
  • Brian Brooks

The event website where you can find more information about the event and the speakers is https://customxm.lpages.co/pcbf-symposium-registration-em/.

If you register to attend the event by March 1st, you will receive a $50 discount on your registration fee.

Posted by: Tasha C. Taylor | January 11, 2019

2019 Release: Timeline of an Arkansas Civil Appeal

The updated 2019 Timeline of an Arkansas Civil Appeal has just been released by Taylor & Taylor Law Firm, P.A.  We have edited the timeline to include rule changes that have occurred since the last release.

To receive your very own timeline card in the mail, just email us at Attorney@TaylorLawFirm.com to request yours today.

TT-AppealsInfographic-Blog2019

Posted by: Andy Taylor | May 9, 2018

Creating Hyperlinks in Adobe

One of the questions we receive quite frequently is about creating hyperlinks to the sections of a brief.  With electronic filing of briefs now required, and with hyperlinks required as part of electronic filing, this is something every attorney filing appellate briefs in Arkansas must know.

We’ve put together a short set of instructions for hyperlinking.  For this example, we are using the Supreme Court’s model brief.  We use Adobe Acrobat Pro DC, but any modern PDF editing program (such as Foxit PhantomPDF; Nuance Power PDF) has the same functionality, and works basically the same way.

Step 1: Open the Hyperlinks Toolbar

In the “Find Your Tools Here” box (which is in the upper right-hand corner), type “link.”

Creating Hyperlinks in Arkansas Appellate Briefs - Step 1

Read More…

The Pulaski County Bar Foundation is presenting the first annual Justice Donald L. Corbin Appellate Symposium at the UA Little Rock Bowen School of Law on Thursday, March 29, 2018 and Friday, March 30, 2018.  The complete brochure and online registration form can be found here.

The planning committee–consisting of Dorcy Kyle Corbin, Jennifer Corbin, and Judge Herbert T. Wright, Jr.–has put together an outstanding program, which includes an impressive list of speakers, as shown in the lineup below:

2018 Corbin Symposium Speakers

 

The Arkansas Supreme Court has recently issued a per curiam opinion making electronic filing of appellate briefs mandatory as of January 1, 2018.  In its per curiam, the Court made a few changes and clarifications to the pilot project (which had been in place since September 15, 2016).  The Court also slightly modified the method for requesting clerk’s extensions.  We’ve posted the details of these changes (along with a couple of forms) below.  As always, this is just a summary, so please refer to the text of the rules themselves when filing a brief.

Overview of Electronic Filing of Briefs

Here are the key points you need to know if you are filing a brief electronically:

  • Briefs are filed through the eFlex system.
  • The brief must be electronically filed prior to midnight on the due date.
  • The table of contents must contain hyperlinks to the beginning of each major section of the brief.  The “major sections” are:
    • Informational statement and jurisdictional statement;
    • Points on appeal;
    • Table of authorities;
    • Abstract;
    • Statement of the Case;
    • Argument; and
    • Addendum.
  • After the brief is accepted by the court, you must file six paper copies of the brief with the clerk’s office.  In our discussions with the clerk’s office, they have indicated that they prefer that attorneys simply print the file-marked copies (rather than printing clean copies and having the clerk’s office file-mark them).
  • The paper copies are due five calendar days after the brief is filed.  Note that this time period begins with the brief is filed, and not when the brief is accepted by the clerk’s office.
  • We are still serving paper copies of the brief on opposing counsel.  We believe that there is some ambiguity about this in the rules.  Rules 4-4(b)-(e) discuss “service upon opposing counsel,” and seem to imply that the service will be in paper format.  Administrative Order 21, on the other hand, states that “[r]egistered users of the electronic filing system consent to electronic service of electronic documents as the only means deemed to constitute service and such notice of filing is valid and effective service of the document on the registered users and shall have the same legal effect as service by conventional means.”  Until there is some clarity on this, we are continuing to serve opposing counsel in paper format.  We have included a sample of our certificate of service below.

Read More…

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