Appellate Practice Tip Summary: Arrange the Appellant’s Addendum Chronologically rather than Thematically.
For Arkansas appellate attorneys who have wondered how Arkansas’s appellate courts would like for an appellant’s addendum to be arranged in an appellant’s brief, we want to highlight a 2007 opinion from the Arkansas Court of Appeals that provides some guidance on this issue. Lackey v. Mays, 100 Ark. App. 286, 269 S.W.3d 397 (Ark. App. 2007).
In Lackey, former Arkansas Court of Appeals Judge D.P. Marshall, Jr. wrote for the majority. He explained that the appellant’s addendum in that case was unusual because the documents were arranged thematically rather than chronologically, which the Court interpreted as a biased approach: “This tactic makes it appear that Lackey is trying to persuade this court by organizing the documents to his advantage, giving emphasis by placement.” The Court of Appeals emphasized that “[t]he addendum–like the abstract–must be impartial.”
According to the Court, although there is no rule mandating a specific arrangement of the Addendum, “[a]rranging the documentary part of the record chronologically is the best practice.”
Without further guidance from the Arkansas Supreme Court in the Rules governing the appellant’s addendum, we suggest following the advice from the Arkansas Court of Appeals suggesting that appellants arrange their addenda in chronological order.
The Arkansas Court of Appeals ordered rebriefing today in the following two cases:
In Fowler v. State, 2010 Ark. App. 811, the Arkansas Court of Appeals ordered rebriefing because a portion of the judgment was excluded from the addendum.
In Snyder v. State, 2010 Ark. App. 817, the Arkansas Court of Appeals ordered rebriefing because petitions for revocation were not included in the addendum.
Concurring in the Fowlerdecision, Judge David M. Glover wrote separately to “emphasize our supreme court’s mandated consequences of noncompliance with our appellate briefing rules.” For attorneys who engage in appellate practice in Arkansas, Judge Glover’s opinion is a reminder that “you can only play the game by the rules.” He warns appellate attorneys to be careful when filing appellate briefs in Arkansas’s appellate courts:
Arkansas Supreme Court Rule 4-2(a)(8) (2008) is the fulcrum for both of our rebriefing orders. Our supreme court, in City of Cotter, 2009 Ark. 172, by per curiam order, enunciated the bright-line rule to which our panel today respectfully adheres. It really does not matter that in that case, Justice Brown, in dissent, finding that the court had become far too strict in its application of the abstract rule, stated, “We have crafted yet another procedural pitfall for the appellate lawyer, which in my judgment is largely unnecessary.” Quite simply, the rule must be followed.
Twenty years ago, United States Magistrate Judge Jerry W. Cavaneau (Recalled) referenced that lawyers love to talk about “pitfalls for the unwary” in an article addressing Rule 54(b) of the Arkansas Rules of Civil Procedure. When abstracting for the Arkansas appellate courts, copier jams, basic oversights, and not adhering to the rules can be such pitfalls. I did not make the rules, but I know you can only play the game by the rules. Our rules are found in our Court Rules – Volumes 1 and 2. You really have to be careful out there, and wary.
In an attempt to put an end to the growing number of deficient briefs it had been receiving, the Arkansas Supreme Court amended Arkansas Supreme Court Rule 4-2 just last year. Among other things, that amendment was meant to provide appellate attorneys in Arkansas with more guidance concerning the contents of the appellant’s addendum. SeeArkansas Supreme Court Proposes Rule Changes as Possible Solution to Brief Deficiencies. The amended version of Rule 4-2 went into effect on January 1, 2010.
Over the past several years, “APPEAL DISMISSED WITHOUT PREJUDICE” has been a recurring disposition in opinions handed down by the Arkansas Supreme Court and the Arkansas Court of Appeals in cases where the order being appealed from was not final and failed to contain a Rule 54(b) certificate. See, e.g.,Grand Valley Ridge, LLC v. Metropolitan National Bank, 2010 Ark. 402.
Arkansas Rule of Civil Procedure 54(b) deals with the finality of orders when there are judgments relating to multiple claims or involving multiple parties. Where there has not been a final judgment with respect to all claims and all parties involved in a particular case, then an appeal from an otherwise non-appealable interlocutory order is improper unless it contains a proper Rule 54(b) certificate.
The relevant portion of Rule 54(b) provides:
(1) Certification of Final Judgment. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination, supported by specific factual findings, that there is no just reason for delay and upon an express direction for the entry of judgment.
Rule 54(b) also provides that when the circuit court finds that an otherwise non-final order should be immediately appealable, the circuit court is required to include the following certificate within the order, immediately after the court’s signature on the judgment. That certificate is required to set forth the factual findings upon which the determination to enter the judgment as final is based. Rule 54(b) sets out the language to be included in the certificate as follows:
Rule 54(b) Certificate
With respect to the issues determined by the above judgment, the court finds:
[Set forth specific factual findings.]
Upon the basis of the foregoing factual findings, the court hereby certifies, in accordance with Rule 54(b)(1), Ark. R. Civ. P., that it has determined that there is no just reason for delay of the entry of a final judgment and that the court has and does hereby direct that the judgment shall be a final judgment for all purposes.
Certified this ________ day of ________, ________.
As shown above, Rule 54(b) includes the language that is to be included to transform what would normally be an uappealable interlocutory order into an order from which a party can properly appeal prior to a ruling by the circuit court that pertains to all claims and/or all parties. However, it is worth noting that “merely tracking the language of Rule 54(b) will not suffice; the record must show facts to support the conclusion that there is likelihood of hardship or injustice that would be alleviated by an immediate appeal rather than at the conclusion of the case.” Bank of Arkansas v. First Union National Bank, Ark. (00-1113) (Nov. 16, 2000).
Appeals are also frequently dismissed without prejudice due to the circuit court’s failure to include within the Rule 54(b) certificate the specific specific factual findings upon which a decision to enter a final judgment was based. See, e.g., Kowalski v. Rose Drugs, 2009 Ark. 524.
Failure to Include 54(b) Certificate in an Otherwise Non-Final Order
When the Rule 54(b) certificate is not attached to an order that is otherwise non-final, that order is not appealable. Appellate courts simply do not have subject-matter jurisdiction to consider the merits of an appeal where the order being appealed from is not final. See Zolliecoffer v. Mike Beebe,2010 Ark. 329; see also Ark. R. App. P. – Civil 2(a)(1). Because the lack of finality creates a jurisdictional problem, that issue is frequently raised by the appellate courts sua sponte. See Grand Valley, supra. Such appeals are dismissed without prejudice. Once the issue of the non-final order has been dealt with below (by dismissing claims and/or parties or by obtaining an order with a proper Rule 54(b) certificate), then a valid Notice of Appeal can be filed and the appeal can properly be brought before the appropriate appellate court (assuming no other procedural impediments affecting jurisdiction exist).
In Grand Valley, which was handed down by the Arkansas Supreme Court last month, there was no Rule 54(b) certificate within the otherwise non-final order. The order in that case was not final because it did not resolve all the claims that had originally been raised by Grand Valley and Terminella. Those parties had filed a motion to voluntary nonsuit without prejudice claims for negligence and interference-with-business-expectancies. The circuit court granted that motion, rendering the order that was subsequently entered in that case non-final and, therefore, not appealable.
The following are examples of cases where orders were held to be non-final and, therefore, non-appealable absent a Rule 54(b) certificate:
Voluntary nonsuit of claims–An order that is final with respect to some claims but where other claims were previously dismissed without prujudice (via a voluntary nonsuit) is not final for purposes of Rule 54(b). See, Grand Valley Ridge, supra.
Claims dismissed as to some parties and transferred as to others—An order where the claims against one defendant were dismissed and the claims against another defendant were transferred to another court. See Zolliecoffer, supra; see also Downen v. Redd, 367 Ark. 551 (2006) (holding that an order dismissing claims as to two defendants and transferring the claim as to a third defendant to another circuit court was not final for purposes of Rule 54(b)).
Unresolved claims against multiple parties—An order granting summary judgment in favor of only on defendant in a case where there are multiple defendants is not a final and appealable order unless it contains a proper Rule 54(b) certificate. See Chapman v. Wal-Mart, 351 Ark. 1 (2002).
Rule Change: Appellants Now Required to Abandon Stray Claims in Notice of Appeal
Effective July 1, 2010 Arkansas Rule of Appellate Procedure-Civil 3(e)(vi) requires a notice of appeal to state, among other things, that “the appealing party abandons any pending but unresolved claim.” The new rule causes the abandonment of any unresolved claims in the notice of appeal to operate as a dismissal with prejudice of any stray claims in a case where the order being appealed from would otherwise be final.
The comments to the rule change further explain its purpose:
This amendment will cure a recurring finality problem. Too often—after the parties have paid for the record, filed it, and filed all their briefs on appeal—the appellate court will discover that what appears to be a final order or judgment is not final because a pleaded claim, counterclaim, or cross-claim remains unadjudicated. This kind of stray claim destroys finality and renders an otherwise final order or judgment unappealable. E.g., Ramsey v. Beverly Enters., Inc., 375 Ark. 424, 291 S.W.3d 185 (2009); Rigsby v. Rigsby, 340 Ark. 544, 11 S.W.3d 551 (2000); Brasfield v. Murray, 96 Ark. App. 207, 239 S.W.3d 551 (2006). These stray claims often appear to have been forgotten by the parties or abandoned even though no order resolved them. It wastes parties’ and courts’ scarce resources to have two appeals in these situations.
A party taking an interlocutory appeal or cross-appeal authorized by the Arkansas Rules of Appellate Procedure, the Rules of the Supreme Court and Court of Appeals, or precedent, should not make this statement in the parties’ notice. Nor is this statement required in a notice of appeal or cross-appeal from a judgment certified by the circuit court as final under Rule of Civil Procedure 54(b). In all these situations, which are in essence interlocutory appeals, some claims remain pending and viable in the circuit court during the appeal.
These comments don’t address what happens where the party who did not bring the lingering claims (usually the defendant) is the party appealing from the non-final order. Presumably a defendant who chooses to appeal from a non-final order could not abandon claims that were originally brought by the plaintiff. It seems that in those situations, the defendant should obtain a Rule 54(b) certificate in order to appeal from an otherwise non-final order.
It is also worth noting that this statement doesn’t help cure finality problems deriving from the failure to obtain a final order with respect to all parties. A prior change to Rule 54 alleviates that problem with respect to John Doe defendants who were named in the lawsuit but who were never known and, thus, never served during the litigation. Effective January 1, 2009, the Arkansas Supreme Court amended Rule 54 to provide that “[a]ny claim against a named but unserved defendant, including a ‘John Doe’ defendant, is dismissed by the circuit court’s final judgment or decree.” Ark. R. Civ. P. 54(b)(5); see Jackson v. Sparks Regional Medical Center, 375 Ark. 533 (2009) (holding that Rule 54(b)(5) could be applied retroactively).
Along with its decision to publish opinions handed down after July 1, 2009 in an electronic-only format, the Court also implemented a new citation rule for those electronically published decisions. SeeArk. Sup. Ct. R. 5-2(d)(2).
As shown in the chart below, Arkansas’s new citation rule for electronically reported decisions is somewhat different from the traditional citation rule for decisions published in the bound volumes of the Arkansas Reports and the Arkansas Appellate Reports.
The new citation format for electronically published decisions permits parallel citations to unofficial sources, including unofficial electronic databases, but only when the regional reporter citation is unavailable. (Parallel citations are highlighted in green in the chart below). Notice also that, the new citation format omits the parenthetical with the year the case was issued because the year is now the first number in the citation.
Additionally, the new citation rule requires a different format for pinpoint citations. Arkansas Supreme Court Rule 5-2(d) strongly encourages the use of pinpoint citations for citations to all Arkansas opinions. The use of pinpoint citations with the new citation format differs from the traditional citation format in two respects. (Pinpoint citations are highlighted in yellow in the chart below).
First, the use of pinpoint citations with the new format always requires the use of the word “at.” When citing to cases that are published in the printed version of the Arkansas Reports, the traditional citation rule requires the use of the word “at” only when using short cites, and never when using full citations of a case.
Second, the pinpoint citation will always refer to the page of the opinion itself rather than a page in a published reporter. Unlike opinions published in the Arkansas Reports, every opinion published electronically begins with page 1. Providing the correct pinpoint citation under the new citation format now requires attorneys to find the decision online and then refer to the specific page of that decision where the information being cited is found.
The following chart, based on Arkansas Supreme Court Rule 5-2(d), illustrates the differences between the traditional citation format and the new citation format:
Citing to Arkansas Opinions (Rule 5-2(d))
Locating Page Numbers for Pinpoint Citations to Arkansas’s Electronically Reported Decisions
The Arkansas Judiciary Website
Arkansas’s electronically reported decisions can be found on the Arkansas Judiciary website. Although not as powerful as the search tools provided by electronic legal research databases such as Westlaw, LexisNexis, and fastcase, a search tool is available on the Arkansas Judiciary’s website that allows attorneys to search for electronically reported cases handed down by the Arkansas Supreme Court and the Arkansas Court of Appeals.
Electronic Legal Research Databases: Westlaw vs. Fastcase
While the electronically published decisions are available on the Arkansas Judiciary’s website, most appellate attorneys who subscribe to online legal research databases–such as Westlaw and fastcase–will begin their legal research with those tools. Surprisingly, Westlaw does not seem to provide the page numbers for Arkansas opinions that are available in the electronic-only format. Fastcase, however, does include the specific page numbers for those decisions.
As an appellate attorney who subscribes to Westlaw Next, I typically begin my legal research with Westlaw. When I need to cite to a recent Arkansas decision (handed down since February of 2009) in an appellate brief, however, I also now have to find that decision using either the Arkansas Judiciary website or fastcase to find the specific page number to include as a pinpoint citation.
To make sense of all of this, if you are a Westlaw subscriber, then conduct a Westlaw search for the case of W.E. Pender & Sons, Inc. v. Lee, 2010 Ark. 52, 2010 WL 391332, a February 4, 2010 decision of the Arkansas Supreme Court (type “2010 Ark. 52” in your Westlaw search box for this result). You should notice that Westlaw does not provide the official page numbers for that case–(Although Westlaw sometimes provides star pages, I have not found a recent decision where Westlaw provides official page numbers for that decision).
If you have access to fastcase, now conduct a search for the same case within your fastcase search box, and notice how the material included on each page is clearly labeled by page numbers along the left side of the page (“Page 1,” “Page 2,” etc.). If you do not subscribe to fastcase, you should know that if you are a member of the Arkansas Bar Association, your membership includes a free subscription to fastcase. Contact the Arkansas Bar Association for details.
As a subscriber to Westlaw, I am hopeful that it will eventually catch up with Arkansas’s new electronic opinion format and include page numbers to those opinions so that Arkansas appellate attorneys who subscribe to Westlaw can more easily include pinpoint citations in their appellate briefs. Until then, Arkansas appellate attorneys who subscribe to Westlaw will be required to access other online tools to find the pinpoint citations for decisions issued in Arkansas’s new electronic format.
If anyone has had a different experience using Westlaw than what I have described, I would be interested in knowing that—please e-mail me at Tasha@TaylorLawFirm.com to share your experience. I would also be interested in knowing whether LexisNexis provides page numbers that correlate to those published in the official electronic reports, as we do not subscribe to that database.
Authored by Jess Askew III of Williams & Anderson, The Arkansas Appellate Cycle Blog combines information about appellate practice and procedure with Mr. Askew’s more than twenty years of experience as an appellate attorney in Arkansas. In his blog posts, Mr. Askew creatively weaves his love for cycling with his passion for appellate practice to provide a helpful frame of reference outside of the law that often helps him explain legal minutiae. Mr. Askew describes his goal with the blog as follows:
My goal is to have a conversation about appellate practice in the state courts of Arkansas, and the cycling perspective can help make a point or two along the way. There is also the natural metaphor between the journey of a bike trip and the life of a lawsuit, from trial through appeal. I hope the cycling perspective will make this blog more accessible and enjoyable.
Check out Mr. Askew’s most recent blog post entitled Final Orders & The Addendum for an example of how he creatively connects the cycling process to Arkansas’s appellate cycle.
Mr. Askew’s resume as an appellate practitioner is impressive. He began his legal career as a law clerk to the late Richard S. Arnold, who sat as a judge and later as Chief Judge on the United States Court of Appeals for the Eighth Circuit. Mr. Askew has been involved in numerous cases on appeal, including the recent cases of Arkansas Blue Cross v. Little Rock Cardiology Clinic, 551 F. 3d 812 (2009), dealing with federal ancillary jurisdiction in a health-care case; Arkansas Democrat-Gazette v. District Court, Ark. S. Ct. No. 08-1435 (Dec. 18, 2008), establishing the availability of a writ of certiorari from a circuit court to an inferior court under Amendment 80 to the Arkansas Constitution; and Cox v. Daniels, 374 Ark. 437 (2008), rejecting a ballot-title challenge to the Arkansas College Scholarship Lottery Amendment under Amendment 7 to the Arkansas Constitution. Additionally, Mr. Askew was a contributor to the Arkansas Bar Association’s treatise on Handling Appeals in Arkansas. Mr. Askew is listed in Best Lawyers in America under appeallate practice.
The experience and knowledge Mr. Askew brings to The Arkansas Appellate Cycle Blog makes it a great new resource for Arkansas appellate lawyers. To follow the blog, click on the links provided in this post or click on the link to The Arkansas Appellate Cycle Blog in our list of Blog Links included in the sidebar to the right.
In a recent per curiam, the Arkansas Supreme Court adopted all but three of the proposed appellate rule changes that were proposed and made available for public comment earlier this year.
The rule change that was adopted by the Court that probably has the greatest impact on practicing appellate attorneys is the addition of Ark. R. App. P.–Civ. 3(e)(vi). That rule requires that in a notice of appeal, the appealing party must state that it abandons any pending but unresolved claims. There are, of course, some circumstances in which this statement isn’t required, such as in the case of an interlocutory appeal, for example. The purpose of the rule is to prevent a finality problem that often arises at the appellate level. This often occurs when there is some unresolved claim that was, for all practical purposes, abandoned by a party but never formally abandoned by an order entered at the trial court level.
In addition to that change, the following is a summary of the other changes made to the Arkansas Rules of the Supreme Court and Court of Appeals:
An 18-day limit to file a motion to reconsider any order or decision on any motion (2-1(g)).
An increase in the number of briefs that must be filed in certain circumstances (2-4(e), 4-1(d), 4-4(a)-(c)).
A change in the way oral arguments are scheduled (5-1(a), (b)).
A limit of 15 pages for certain petitions (6-1(e)).
A change to the way extensions are handled in dependency-neglect cases (6-9(d), (e))
The Court also made a change to Arkansas Rules of Appellate Procedure 2, adding a subsection (13) that allows civil or criminal contempt orders to be appealed from the circuit court directly to the Arkansas Supreme Court.
The Court declined to adopt three proposed changes that relate to appellate practice. First, the Court declined to adopt the proposed addition of section(d) to Ark. R. App. P.–Civ. 5, which would have made the untimely filing of a record a disciplinary issue for the attorney, but would have removed the jurisdictional element (meaning that the appellate courts would still hear the appeal, even if the record was not timely filed). The second change that the Court declined to adopt was the proposed addition of subdivision (e) to Rule of the Supreme Court and Court of Appeals 4-1, which would have mandated color-coding of briefs. (As a side note, we had begun color-coding briefs [the current rules do not prohibit this], but are reconsidering that decision. It is our understanding that there are logistical reasons that the Court prefers not to have color-coded briefs at the current time.) Third, rather than completely rewriting Rule of the Supreme Court and Court of Appeals 2-1 (relating to motion practice), the Court simply adopted proposed subdivision (g), which, as mentioned above, sets an 18-day time limit for filing a motion to reconsider a ruling on any motion covered by that rule.
Attention appellate attorneys: recognizing that you might already feel a bit like Goldilocks–somewhat lost while meandering through a forest of rules and requirements to attempt to create the perfect brief–you will probably not feel as comforted as she was to hear the characterization “just right” with respect to creating the perfect appellant’s addendum. That was the message at the conclusion of yesterday’s decision in West Memphis Adolescent Residential, LLC v. J.T. Compton, et al., 2010 Ark. App. 450, — S.W.3d — (2010), which includes a notice “[f]or the benefit of the appellate bar” calling appellate attorneys to create addenda that are neither too big nor too small.
The Arkansas Court of Appeals explained that Rule 4-2(a)(8) requires that the documents contained in the appellant’s addendum not be too many or too few. Rather, an addendum must contain only those documents necessary to an understanding of the issues on appeal or the appellate court’s jurisdiction:
For the benefit of the appellate bar, we note that WMAR has included many unnecessary documents in its addendum, such as multiple copies of the various contracts and leases; motions to dismiss and orders denying the motions; motions and orders on discovery disputes; motions in limine; scheduling orders; orders extending the time to respond to summary judgment motions; and protective orders. None of these documents were necessary to the arguments made on appeal. They total more than 150 pages of an addendum that contains 742 pages. Under Supreme Court Rule 4-2(a)(8), the contents of the addendum are to be limited to only those items necessary to an understanding of the issues on appeal or our jurisdiction. We have pointed out that an abstract and addendum can be deficient for containing too much material, as well as too little.See American Transp. Corp. v. Exchange Capital Corp., 84 Ark. App. 28, 129 S.W.3d 312 (2003); Miller v. Hometown Propane Gas, Inc., 82 Ark. App. 82, 110 S.W.3d 304 (2003).
Arkansas Supreme Court Rule 4-2(a)(8) specifically requires that the addendum “shall not merely reproduce the entire record of trial court filings” but that it should contain those documents “that are essential for the appellate court to confirm its jurisdiction, to understand the case, and to decide the issues on appeal.”
For those who are still wondering how to create an addendum that is “just right,” the first place to start is by reviewing Arkansas Supreme Court Rule 4-2(a)(8), which provides much more advice to attorneys than the rule previously did. For example, Rule 4-2(a)(8) now contains a bulleted list of the documents that the addendum absolutely must contain, which provides a great starting point for determining which documents to include in an addendum. Of course, each case is unique so there will most likely be other documents, outside of that list, that also must be included in order to create an addendum that includes all the documents in your case “that are essential for the appellate court to confirm its jurisdiction, to understand the case, and to decide the issues on appeal.” SeeArk. Sup. Ct. R. 4-2(a)(8).
The following article, which originally appeared in the Arkansas Real Estate Review of the Arkansas Bar Association Real Estate Section, will be of interest to those who practice appellate law in Arkansas. In the article, Professor Lynn Foster, Arkansas Bar Foundation Professor of Law at the UALR William H. Bowen School of Law, writes that West is no longer publishing all reported decisions of the Arkansas Court of Appeals or Arkansas Supreme Court in the South Western Reporter (recall that all Arkansas Court of Appeals and Arkansas Supreme Court decisions are now reported pursuant to Rule 5-2). In addition, a rather confusing header that appears at the top of these cases in Westlaw gives the impression that the cases have no precedential value, when, in fact, they do. The fact that decisions of the Arkansas Court of Appeals and Arkansas Supreme Court are not being published in the South Western Reporter is yet another reason that we believe using electronic research databases is the better method of researching these days (we use Westlaw at Cullen & Co.). The full text of the article is available after the jump (click the “More” link).
Incidentally, I highly recommend that you join the Real Estate Section of the Arkansas Bar Association, if for no other reason than to receive the Arkansas Real Estate Review.
The Administrative Office of the Courts provides a monthly Appellate Update to assist with finding published decisions of the Arkansas Supreme Court and the Arkansas Court of Appeals. The Appellate Update is not meant to provide a summary of each case, but rather provides highlights of the issues involved in each case mentioned in the publication.
In its decision, the Court overruled its previous decision in Jones v. Abraham, 341 Ark. 66, 15 S.W.3d 310 (2000), and the Court of Appeals’s previous decision in Morrow v. Morrow, 270 Ark. 31, 603 S.W.2d 431 (Ark. App. 1980). See Lamontagne.
In 1980, the Court of Appeals observed and held in Morrow that “[t]raditionally appeals from the chancery court are reviewed de novo and there is no requirement of objections to the findings, conclusions and decree of the court to obtain review on appeal.” 270 Ark. at 33, 603 S.W.2d at 432.
In its 2000 decision in Jones, the Arkansas Supreme Court relied on the Court of Appeals’s decision in Morrow to hold that there was no requirement that a contemporaneous objection be made in order to preserve an issue for appeal. Jones, 341 Ark. at 72, 15 S.W.3d at 314.
Today, in Lamontagne, the Court pointed out that while the Jones decision relied on Morrow, the Morrow decision–as noted by Judge Newbern in his dissent to Morrow–did not rely on any authority for its proposition that an argument can be raised in an appeal from a chancery court decision that was not made below. In overruling Jones and Morrow, the Court relied, in part, on its 1951 decision in Umberger v. Westmoreland, 218 Ark. 632, 645, 238 S.W.2d 495, 502 (1951), in which the Court held: “we unanimously hold that in cases hereafter tried, all objections to evidence and witnesses must be made in a timely manner in the trial court, and if not so made, such objections will be considered as waived when the case reaches us on appeal.”
From the time the Umberger decision was handed down, more than fifty years ago, the Arkansas Supreme Court has consistently held that “it is incumbent on the parties to raise arguments initially to the circuit court and to give that court an opportunity to consider them.” seeRoberts v. Yang, 2010 Ark. 55, at 6, ___ S.W.3d ___; see alsoLamontagne, supra. The Court’s decision today overruling previous appellate court decisions inconsistent with this position confirms that the Court has no plans to waiver from this well-settled rule, as it is frequently requested to do by attorneys.
Judge Wills, in a concurring opinion, which was joined by Judge Danielson, expresses some concern that the Court had to deal with this issue:
It is both remarkable and troubling that this question persists and this court must again clarify the necessity of raising issues below to preserve them for appeal. I write separately to “call attention of the Bench and Bar” to this issue, as this court did in Umberger over half a century ago.
It is hopeful that the Court’s opinion today will alleviate any confusion that caused concern on the part of the concurring justices–a confusion that, at least in part, was caused by the appellate courts’ decisions in Jones and Morrow.
ArkansasAppeals.com 