You’ve Got To Name It To Claim It: Barton v. Arkansas Department of Human Services

April 30, 2019 ~ Andy Taylor

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.

Creating Hyperlinks in Adobe

May 9, 2018May 9, 2018 ~ Andy Taylor

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

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Electronic Filing of Appellate Briefs is now Mandatory in Arkansas Appellate Courts

February 14, 2018February 14, 2018 ~ Andy Taylor

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.

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The Arkansas Court of Appeals Holds that Sanctions and Contempt Are Not the Same

February 28, 2017 ~ Andy Taylor

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.

Child Visitation Order Not Final Where Contempt and Child Support Issues Were Left Undecided

October 26, 2016November 17, 2016 ~ Andy Taylor

If you’ve followed this blog for very long, one of the topics that arises quite frequently is the issue of whether or not an order is a final, appealable order. This question often arises in family law cases, because there are so many moving parts in those cases. The decision of the Arkansas Court of Appeals in John v. Bolinder, 2016 Ark. App. 357, provides an example of such a case.

In John, an unmarried couple had one child together in 2010. In 2012, the trial court awarded primary custody to mom, with dad to have visitation (one week per month plus extended summer visitation) and also to pay child support. In 2014, the trial court modified the order to decrease dad’s nonsummer visitation to one weekend per month.

In late 2014, dad filed a motion for release of mom’s medical and psychological records. A few months later, dad filed a motion to modify child support, confirm the length of summer visitation, or modify the summer visitation. Dad also requested that his summer visitation be expanded, and that child support be reduced during the summer visitation.

At some point during this timeline, mom filed a motion for contempt against dad. A hearing was held on these matter in May of 2015, at which hearing the parties mentioned that this contempt motion was unresolved.

In June 2015, the trial court entered an order denying dad’s motion seeking the medical/psychological records and denying the motion to modify summer visitation (although the trial court did slightly modify the summer visitation schedule). The order did not address mom’s contempt motion, and it specifically reserved the issue of child support.

The question, then, is whether an order deciding visitation is final in a situation where a contempt motion and a motion to modify child support are outstanding. Dad argued that these issues (contempt and child support) were merely collateral matters not affecting the finality of the order. The Court of Appeals rejected this argument, relying on two cases: Burton v. Templeman, 2015 Ark. App. 101 (holding that an order denying a motion to modify visitation was not final where it specifically reserved a ruling on a motion for contempt) and Mitchell v. Mitchell, 98 Ark. App. 47, 249 S.W.3d 847 (2007) (holding that an order on “various post-divorce disputes” was not final where it specifically reserved a ruling on child support).

In light of this decision, there are two things to keep in mind when deciding whether to file a notice of appeal from a decision involving child custody and visitation. First, keep in mind that had the facts been slightly different, this order likely would have been a final order pursuant to Rule 2(d) of the Arkansas Rules of Appellate Procedure-Civil, which provides that “[a]ll final orders awarding custody are final appealable orders.” Second, 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. The best option in this situation would probably be to try to obtain a Rule 54(b) certification to any order that leaves unfinished business.

The Arkansas Supreme Court Clarifies the Standard for Terminating Consensual Guardianships of Minors

October 9, 2016October 9, 2016 ~ Andy Taylor

Suppose a mother consented to a guardianship of her child because she had a drug problem and was seeking treatment.1 Now suppose the mother, after putting her life back together, walks into your office and wants to terminate the guardianship. What standard applies to her petition to terminate the guardianship? This article attempts
to answer that question.

The Arkansas statute governing guardianships provides that “[a] guardianship may be terminated by court order . . . [if] . . . the guardianship is no longer necessary or for the best interest of the ward.”2 While this statute might appear to be straightforward, there have been four major Arkansas Supreme Court cases in the last six years or so dealing with this issue, each of them with a concurrence, a dissent, or both.

Some of the complexity arises because of a 2000 case from the Supreme Court of the United States dealing with grandparent visitation. This article will begin with a short synopsis of that case, and then move to the evolution of this area of law in light of that opinion.

Troxel v. Granville: “There is a presumption that fit parents act in their children’s best interests.”3

In Troxel v. Granville, the United States Supreme Court examined a Washington statute that allowed courts to award visitation of a child to any person if the visitation was in the best interest of the child. The Supreme Court held that the statute was unconstitutional because it gave no deference to a parent’s decision regarding visitation. The Court held that “[t]here is a presumption that fit parents act in their children’s best interests.”

Although the Troxel decision would eventually become important in termination of consensual guardianship cases in Arkansas, the first major Arkansas case on point that began to move the needle in favor of parental rights did so without relying on Troxel.

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Arkansas Supreme Court Decision Clarifies Rule Regarding Termination of Consensual Guardianship, but Some Questions Remain

April 26, 2015October 9, 2016 ~ Andy Taylor ~ 1 Comment

In re Guardianship of S.H., 2012 Ark. 245, 409 S.W.3d 307 (“S.H. I“) and In re Guardianship of S.H., 2015 Ark. 75 (“S.H. II“) both address the rule that applies when a parent who originally consents to a guardianship later seeks to terminate the guardianship. In S.H. I (decided in 2012), the Arkansas Supreme Court set forth a two-step burden shifting analysis for determining whether to terminate a guardianship in such situations. In S.H. II (which was the second appeal of the same case, decided in February 2015), the Arkansas Supreme Court clarified the burdens of proof that apply to each step in the analysis. S.H. II was a split opinion, however, and for reasons that will be discussed in more detail below, there is some question as to which rule will apply in the future. Therefore, this blog post analyzes the rule from both the majority opinion (which technically appears to be a plurality opinion) and the concurring opinion, along with a note regarding which rule might apply in the future.

I. Legal Background

SH II addresses situations where a parent consents to another person (typically a family member) serving as the guardian of his or her child, and then later that parent seeks to terminate that guardianship. This can arise in a number of circumstances, such as when a parent must leave the country to serve in the military (Witham v. Beck, 2013 Ark. App. 351) or when a parent is overcoming a drug problem (Crenshaw v. Crenshaw, 2012 Ark. App. 695).

A. Abolition of the Material Change in Circumstances Standard

For many years, appellate courts in Arkansas had “equate[d] a petition to terminate a guardianship to a change of child custody among natural parents.” Smith v. Thomas, 373 Ark. 427, 432, 284 S.W.3d 476, 479 (2008). As a result, in order for a parent to terminate a guardianship, the parent was required to prove that there had been a material change in circumstances. Graham v. Matheny, 2009 Ark. 481, 6, 346 S.W.3d 273, 277 (2009). In Graham, the Arkansas Supreme Court recognized that “there is confusion regarding the standard to be used in termination-of-guardianship cases.” Id. at 14, 346 S.W.3d at 280-81. Therefore, the Arkansas Supreme Court took the opportunity to set forth five principles that apply in termination of guardianship cases. Perhaps the most significant of those principles was that “a change-of-custody analysis using the material-change-of-circumstances standard should not be done in termination-of-guardianship cases.” Id. at 15, 346 S.W.3d at 281.

The Court in Graham noted that the guardianship statute, which provides that “[a] guardianship may be terminated by court order . . . [if] the guardianship is no longer necessary or for the best interest of the ward,” is a disjunctive test. See Ark. Code Ann. § 28-65-401(b)(3). Nevertheless, the Arkansas Supreme Court still held that even if there is evidence that a guardianship is no longer necessary, the best interests of the child must still be examined. The concurrence in Graham, written by Justice Hannah, joined by Justice Danielson, made the point that the statute is a disjunctive statate and argued that “[u]pon remand, the circuit court should be ordered to determine whether if for any reason, the guardianship is no longer necessary or for some other reason it is no longer in the best interest of [the ward] that the guardianship continue.” Graham, 2009 Ark. 481, at 19, 346 S.W.3d at 283 (Hannah, C.J., concurring).

The concurrence, in a footnote, made one other point: That the parties had not raised the question of whether the guardianship statute as written violated parents’ constitutional rights to the custody and control of children. Id. at 18, 346 S.W.3d at 282 (Hannah, C.J., concurring). Specifically, the concurrence made reference to Troxel v. Granville, 530 U.S. 57, 120 Sup. Ct. 2054 (2000), in which the Arkansas Supreme Court had held in a grandparent visitation case that “there is a presumption that fit parents act in the best interests of their children.” The Arkansas Supreme Court had also recognized this principle in a grandparent visitation case, holding that “a fit parent is given a presumption that he or she is acting in a child’s best interests.” Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002).

Less than three years after the decision in Graham v. Metheny was handed down, the Arkansas Supreme Court would address head-on the issue of parental rights in the context of a termination of a consensual guardianship.

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Temporary Custody Orders Not Appealable (And a Note of Caution)

March 21, 2015April 26, 2015 ~ Andy Taylor

Strother v. Strother

In Strother v. Strother, 2015 Ark. App. 196, the Arkansas Court of Appeals recently held that a decree that “does not contain a final award of custody” is not an appealable order. A review of Strother, along with several other cases on this topic, reveals that the line between a final custody order and a temporary custody order is not always clear, so attorneys should be cautious before choosing not to appeal from what might appear to be a temporary custody order.

In Strother, the dad and mom had married in 2001, and the mom had filed for divorce in 2013. In her complaint for divorce, the mom sought joint legal custody, with her having primary physical custody. The court appointed an attorney ad litem, and eventually held a hearing “on the divorce and custody issues.” The court then issued a letter opinion in which it granted the couple joint legal custody, and granted the mom primary physical custody.

With respect to custody issues, the circuit court’s order stated as follows:

[T]his court finds that the aforesaid orders of this court in regards [to] custody and other issues concerning the aforesaid two (2) minor children are temporary in nature; that an attorney ad litem will be appointed to represent the aforesaid two (2) minor children; that Defendant shall be solely responsible for payment of all attorney fees and expenses which will [be] owed to the attorney ad litem; and that issues concerning permanent orders in regard [to] custody and other issues concerning the aforesaid two (2) minor children will be determined in the future by agreement of the parties or by order of the court.

The Court of Appeals in this case examined whether this was an appealable order. Rule 2(d) of the Arkansas Rules of Appellate Procedure–Civil provides that “[a]ll final orders awarding custody are final appealable orders.” In other words, even if an order granting divorce isn’t otherwise considered a final order, if the order is final with respect to custody, then it will be final for purposes of appealing the custody determination.

In Strother, the Court of Appeals held that the order was not a “final order[] awarding custody.” The Court of Appeals noted that “the order specifically states that issues of custody ‘are temporary in nature’ and that ‘issues concerning permanent orders in regard [to] custody . . . will be determined in the future.'” Therefore, the Court of Appeals dismissed the appeal until a final custody award is entered.

In its opinion in Strother, the Court of Appeals cited to an Arkansas Supreme Court case, Gilbert v. Moore, 364 Ark. 127, 216 S.W.3d 583 (2005). In that case, the trial court had entered an emergency ex parte order granting temporary custody of the couple’s child to the father. Four days later, the trial court held a short hearing and ordered the custody of the child remain with the father, and that the mother was to receive weekend visitation. The trial court stated from the bench:

I signed an Ex Parte Order a few days ago which placed the temporary custody in the Plaintiff, the father. I really don’t know where this child is better off long term. I guess that’s something that is going to have to be resolved at a later date. I presume both of these parties want long term custody of this child. I may or may not be right about that. In the meantime I’m going to leave the Ex Parte Order in effect; however, the child shall spend each weekend with his mother beginning 6:00 p.m. on Friday and ending on 6:00 p.m. on Sunday. And when counsel and the parties are ready for this case to be heard in its entirety on its merits thoroughly by myself or somebody, probably somebody else, and hopefully make the right decision on where this child should grow up, then that’s what will happen.

The trial court went on to state from the bench that the order would be “on a temporary basis the child should stay with the father during the week and the mother during the weekends until this case can be resolved on its merits.” The order itself was not quite as specific as to the temporary nature of the order, but did state that custody would remain with the father “at this time.”

In Gilbert, the Arkansas Supreme Court held that the custody order was a temporary order and therefore not appealable. This, however, is where the note of caution comes in. The Arkansas Supreme Court held that “[w]hether a custody order is final or temporary is not dependent upon the style of the order,” and that “custody orders styled as temporary may be nonetheless final for purposes of appeal if the issue of custody was decided on the merits and the parties have completed their proof.” In Gilbert, the basis of the holding appears to have been that “the issue of custody ha[d] yet to be determined on its merits and . . . the parties ha[d] not completed their proof on the issue.”

This seems to be consistent with previous cases cited by the Arkansas Supreme Court in Gilbert. Although those cases predate the addition of “final orders awarding custody” to the list of appealable orders (that amendment was adopted in 1999), the holdings are still informative. In those three cases, the key issue seems to whether there has been a final hearing on the merits. In Sandlin v. Sandlin, for example, the Arkansas Supreme Court held that the order in that case was not appealable because “the main issue, that of custody,” had not been decided. 290 Ark. 366, 719 S.W.2d 433 (1986). The Arkansas Supreme Court noted that it had previously held that “there can be no appeal . . . until the proof has been completed and the order entered.” Similarly, in Jones v. Jones, the Arkansas Court of Appeals held that a custody order “is final for purposes of appeal if the the issue of custody was decided on the merits and the parties have completed their proof.” 41 Ark. App. 146, 852 S.W.2d 325 (1993).

In Chancellor v. Chancellor, 282 Ark. 227, 667 S.W.2d 950 (1984), the Arkansas Supreme Court held, based on the following, that the custody order was not final:

The record reflects that appellant has not yet completed her proof. The order in the present case did not terminate any cause or right, dismiss any party from the action or conclude their rights. By its very terms it is a temporary order. The court ordered an investigation of the respective homes and ordered that a report be made to the court. It is obvious the court did not intend to take final action on this matter based solely upon the fact that the mother may be living in adultery.

This brings us back to Strother. In that case, it appears that there had, in fact, been a hearing on the merits. The order, however, appears to have left custody open until an attorney ad litem could be appointed and could report back to the court. In that sense, the issue of custody was still open.

The Takeaway

Based on these cases, attorneys should never assume that a custody order is temporary based solely on the fact that the order is styled as a “temporary” order. These cases make clear that there’s more to the analysis than simply what the order is styled. Sometimes, it might not be entirely clear to counsel whether or not a custody order constitutes a “final order[] awarding custody.” In those situations, the best course of action is probably to file a notice of appeal as a precaution. Otherwise, the attorney risks allowing what appears to be a temporary order become a permanent, nonappealable order.

Were Your Arguments Made in Chambers Preserved for Appeal?

November 21, 2014 ~ Andy Taylor

Arkansas Realtors Association v. Real Forms, LLC

Any attorney who has spent much time practicing in court knows that many arguments and rulings are made in chambers (and off the record). The question, then, is how to preserve arguments made in chambers. The Arkansas Supreme Court’s recent decision in Arkansas Realtors Association v. Real Forms, LLC provides some guidance. 2014 Ark. 385. Although the opinion does not include a definitive method to preserve such arguments, the takeaway is that attorneys must find a way to make the argument on the record.

The facts of Arkansas Realtors Association are a bit complicated and have been simplified for purposes of this blog post. In sum, the Arkansas Realtors Association (“ARA”) had been in a long-term contract with Robert Bodily to create desktop software that allowed ARA members to draft contracts electronically. The ARA later entered into a contract with Real Forms, LLC (technically, it was a predecessor company) to create an online version of the software. The two programs were apparently not compatible, so the ARA ultimately entered into a contract with Real Forms, LLC (“Real Forms”) to create both a desktop version and an online version of the software.

A number of disputes arose between the ARA and Real Forms, including disputes about the time of delivery, whether the software met the ARA’s needs, and regarding the fact that Real Forms had not obtained errors & omissions (E & O) insurance as required by the contract. The ARA ultimately sent a notice of termination to Real Forms. Real Forms sued the ARA, and the ARA filed a counterclaim. The jury ultimately returned a verdict in favor of Real Forms for $150,000.

The ARA raised several points in its appeal, but for purposes of this blog post, the relevant point that was raised related to the ARA’s motions in limine. Prior to trial, Real Forms filed two motions in limine (one to exclude lay-witness opinion testimony regarding whether the software was flawed, and another to exclude evidence of insurance), and the ARA filed three motions in limine (one to exclude evidence of Bodily’s contract with the ARA, one to exclude the interpretation of contract terms by a software development expert witness, and one to exclude evidence of the number of hours worked by the owners of Real Form.

On the first day of trial, the court held an off-the-record hearing in chambers regarding the motions in limine. After returning from chambers, the court ruled on-the-record regarding the insurance motion in limine, but did not make any reference to any of the four remaining motions in limine at that time.

On appeal, the ARA argued that the circuit court had erred by not making a record prior to trial regarding the motions in limine. The ARA relied on Administrative Order No. 4, which provides that, “[u]nless waived on the record by the parties, it shall be the duty of any circuit court to require that a verbatim record be made of all proceedings . . . pertaining to any contested matter before the court or the jury.” The Arkansas Supreme Court has previously held that this rule is “mandatory,” and that a party’s silence on this issue does not constitute an implied waiver of this requirement. Thompson v. Guthrie, 373 Ark. 443, 447, 284 S.W.3d 455, 457 (2008), George v. State, 356 Ark. 345, 151 S.W.3d 770 (2004). The Arkansas Supreme Court has also held, however, that the burden of bringing up a record sufficient to demonstrate error rests with the appellant. Hankins v. Dep’t of Fin. & Admin., 330 Ark. 492, 954 S.W.2d 259 (1997).

In this case, the Arkansas Supreme Court rejected the ARA’s argument that the case should be remanded to complete the record, holding that the ARA had not been prejudiced by the off-the-record discussion. In reaching its conclusion, the Arkansas Supreme Court looked at each of the ARA’s three motions in limine individually. With respect to the first motion in limine (to exclude evidence of Bodily’s contract with the ARA), there had been a sidebar (apparently on the record) regarding the Bodily contract and what counsel could and could not ask during testimony regarding that contract. With respect to the second motion in limine (to exclude testimony from the software expert regarding contract terms), the circuit court had actually sustained the ARA’s objection to such testimony during that expert’s testimony. With respect to the third motion in limine (to exclude the number of hours worked by the owners of the company), the ARA had never objected during trial when testimony was given on this point.

Based on this sequence of events, the Arkansas Supreme Court held that “given these specific circumstances, we adhere to our rule that Appellant was required to bring a record sufficient to demonstrate error, and we cannot say that Appellant was prejudiced by the circuit court’s failure to follow Administrative Order No. 4.”

The Takeaway

There are a few points worth making in light of this opinion. First, off-the-record discussions are quite commonplace, so the question is how to preserve the issue. In light of this opinion, it appears that even if a motion in limine has been filed and denied, counsel must object on-the-record once the evidence sought to be excluded is admitted. Although there would appear to be instances in which the Arkansas Supreme Court might remand a case to require the record to be completed in similar circumstances (the Arkansas Supreme Court appears to have limited the holding in this case to “these specific circumstances”), if the issue is important enough, an on-the-record objection is vital to preserving the issue. That leads to the second point, which is that this decision to object has to be balanced against the negatives of objecting (namely, irritating the jury). In this case, it appears that counsel did not consider the testimony in question to be vital to the case (this particular point was the fourth of four points on appeal in the ARA’s brief, and took up about 2 of the brief’s 30 pages). Therefore, the decision not to object was quite possibly a strategic decision in this five-day jury trial. If, however, a ruling in chambers is more important to a case, counsel should make every effort to make an objection on the record and to obtain a ruling on the record.

Proceedings Under Trust Code (Rather than Probate Code) Not Appealable Unless Final

October 29, 2014December 29, 2014 ~ Andy Taylor

In Bank of the Ozarks v. Cossey, 2014 Ark. App. 581, the Arkansas Court of Appeals addressed the question of whether an order that appears to be a non-final order is still appealable under Ark. R. App. P. (2)(a)(12), which permits an appeal from almost all orders entered in probate cases.

Only a brief summary of the facts of this case is necessary. In sum, there was a dispute about who was the trustee of the Hamilton Family Trust. One of the beneficiaries of the trust, Ms. Cossey, filed a petition claiming that Bank of the Ozarks was the trustee and demanding an accounting from Bank of the Ozarks. Bank of the Ozarks claimed it was not the trustee of the trust. The circuit court held that Bank of the Ozarks had acted as trustee, and ordered Bank of the Ozarks to perform an accounting within 30 days. Bank of the Ozarks appealed from this order, along with a separate order awarding attorney’s fees and costs to Ms. Cossey.

On appeal, the Court of Appeals first addressed the question of whether the order requiring an accounting was a final order. The court held that “[a]n order that contemplates further action by a party or the court is not a final, appealable order.” Because this order required Bank of the Ozarks to perform an accounting, and because there would likely be additional oversight and rulings by the circuit court, the Court of Appeals held that this was not a final order.

The Court of Appeals then turned its attention to Ark. R. App. P. (2)(a)(12) and Ark. Code Ann. § 28-1-116, which together permit appeals from almost all orders in probate cases. In fact, the Court of Appeals held that “[w]e have interpreted section 28-1-116(a) to allow an immediate appeal from almost any probate order.” However, the issue in this case related to who should be the trustee of the Hamilton Family Trust, a question governed by Ark. Code Ann. § 28-73-701. The question, then, is whether this statute is part of the probate code. Based on the notes to Ark. Code Ann. § 28-1-101, which lists the statutes that make up the probate code, the Arkansas Court of Appeals held that the statute applicable to this case (which was not included in the list) was not part of the Arkansas Probate Code. The Court of Appeals also examined Ark. Code Ann. § 28-1-104, which lists the types of cases that are considered to be probate cases. Although this statute was originally designed to set the jurisdictional guidelines when there were separate circuit, chancery, and probate courts, the Court of Appeals held that the statute is still applicable when determining appellate jurisdiction. Because trust matters are not included in the list of matters considered to be probate matters, the Court of Appeals held that the issues in Bank of the Ozarks were not probate matters.

Having concluded that the trust dispute in Bank of the Ozarks was not a probate matter, a final order was required. Because there was no final order, the Court of Appeals dismissed the appeal. The Court did, however, give some guidance to the parties as to how to proceed. The Court suggested in its opinion that a Rule 54(b) certificate (pursuant to which the parties may appeal from a non-final order) might allow the order to become appealable, although the Court of Appeals was very careful not to “comment[] on the propriety of a Rule 54(b) certificate . . .” Nevertheless, it’s probably a safe bet that this case will soon be before the Court of Appeals again—this time with a Rule 54(b) certificate.