ArkansasAppeals.com

In McKelvey v. McKelvey, 2020 Ark. App. 536, the wife filed a complaint for divorce, and the husband filed a counterclaim. They both sought custody of the minor child, and in addition, they both made various claims regarding marital property, child support, and disability payments paid to the child.

At the beginning of the divorce hearing, the parties announced that they had agreed to share joint legal and physical custody of the minor child. The circuit court subsequently entered a divorce decree that awarded the husband a divorce from the wife. The divorce decree also approved a separate property settlement agreement and stated that the property settlement agreement would be incorporated into a future order:

A little over a month later, the circuit court entered an amendment to the divorce decree that resolved the property issues and other contested issues. That amended order, however, did not incorporate the property settlement agreement. Further, although the parties had stated on the record that they had reached an agreement as to custody, neither the divorce decree nor the amended order addressed custody.

The husband appealed from some of the circuit courts financial rulings. Based on this record, however, the Court of Appeals held that “custody of [the minor child] is an issue the circuit court has not yet resolved.” Therefore, the Court of Appeals dismissed the appeal for lack of jurisdiction (because there was no final order).

Interestingly, the Court of Appeals noted that “the PSA is not included in the record, making it impossible for this court to ascertain its contents.” It is not entirely clear whether the property settlement agreement addressed custody. This language from the Court of Appeals seems, however, to leave open the possibility that had the property settlement agreement been included in the record, and had the property settlement agreement addressed custody, that perhaps the Court of Appeals would have addressed the merits. Nevertheless, the safest bet would be to make sure that property settlement agreement is not only included in the record, but also incorporated into a formal order.

In Lancaster v. Rogers Construction, Inc. (Lancaster I), 2019 Ark. App. 582, the Arkansas Court of Appeals dismissed an appeal without prejudice for lack of a final order. In that case, the Plaintiffs (Mr. Lancaster and, later, Ms. Lancaster) filed suit against Rogers Construction, Inc., Roger E. Rogers, Rustan K. Rogers, and John/Jane Does 1-99 for breach of express contract, breach of implied contract, breach of implied warranty, negligence, strict (product) liability, and fraud. Through a series of motions and orders, the circuit court dismissed the breach of express contract and strict (products) liability claims against the individual defendants, and also dismissed the complaint as to the corporation. The circuit court’s disposition of the remaining claims was, as the Court of Appeals put it, “not clear,” so the Court of Appeals dismissed the plaintiff’s appeal without prejudice.

The Plaintiffs then filed a motion to dismiss their claims against the individuals and the John/Jane Doe defendants with prejudice. That motion was granted, and the following language appeared in the order:

This language might have been sufficient to resolve the finality problem, but, as the Court of Appeals pointed out in Lancaster v. Rogers Construction, Inc. (Lancaster II), 2020 Ark. App. 582, there was still a problem. As it turns out, the Court of Appeals handed down its decision in Lancaster I on December 11, 2019. The plaintiffs’ motion to dismiss was filed on December 18, and the order dismissing the claims (quoted above) was entered on December 19. The problem is that the mandate didn’t issue until January 10, 2020.

Because the order predated the mandate being issued, the Arkansas Court of Appeals held that “the circuit court’s December 19 order was entered without jurisdiction and is considered null and void.” Therefore, the court again dismissed the appeal without prejudice.

We’ll be watching for Lancaster III, and will update this post accordingly.

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.

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.