Category: Appellate Practice Tips

Rule 54(b) Certification Requires Showing of Undue Hardship Without Interlocutory Appeal

~ Tasha C. Taylor ~ 5 Comments

Arkansas Rule of Civil Procedure 54(b) requires that a Rule 54(b) certification include a showing that “undue hardship would likely result if an interlocutory appeal were not allowed.” Thompson v. The City of Bauxite, Arkansas, et al., 2010 Ark. App. 338 (April 21, 2010).  The Arkansas Court of Appeals dismissed the appeal in Thompson today because of a lack of such a showing of undue hardship in the 54(b) certification:

 This court, however, must dismiss the appeal. The Rule 54(b) certification found in the circuit court’s order is defective because it does not state any factual reason to support the conclusion that there was no just cause to delay entry of a final judgment even though there remain outstanding claims. Instead, the certification merely explained why the allegation relating to the signatures had been dismissed and did not show that undue hardship would likely result if an interlocutory appeal were not allowed, which is what Rule 54(b) requires.  Cruse v. 451 Press, LLC, 2010 Ark. App. 115. Accordingly, we dismiss the appeal.

Thompson, 2010 Ark. App. 338, at 3.

Insight Into Binding the Appellant’s Addendum

~ Andy Taylor ~ 1 Comment

A few weeks ago, I argued a case before the Arkansas Court of Appeals.  The biggest insight I gained was actually with respect to a judge’s comment concerning our Addendum in that case.  Before asking his first question, Judge Price Marshall complimented me for binding the Addendum separately from the remainder of the brief.  We typically bind Addenda separately from briefs when the Addenda are fairly large.  Judge Marshall said that he appreciated it because it made it easier to refer to the Addendum while reading the brief.

A few caveats.  First, this was a very big Addendum (approximately 400 pages), and our argument in this case relied heavily on the documents included in the Addendum.  In cases where the Addendum is extremely small, I still intend to bind the Addendum with the brief.  Second, while the Addendum may be bound separately, the abstract must be bound in the same volume as the brief unless the abstract exceeds 250 pages. See Ark. Sup. Ct. R. 4-2(a)(5)(C)(ii).  Third, I recognize that this was the opinion of one of twelve judges on the Court of Appeals, and I am not intending to suggest that he necessarily was speaking for the entire Court.

The Court’s rules concerning the Addendum to an Appellant’s brief can be found at Arkansas Supreme Court Rule 4-2(a)(8).

Appellant’s Addendum in Appeal From Summary Judgment Decision Must Include, Inter Alia, the Documents on Which That Decision Was Based

~ Tasha C. Taylor ~ 1 Comment

In an appeal from a summary judgment order, the Appellant must include all documents upon which the circuit court’s summary judgment decision was based. See Dachs v. Hendrix, 2009 Ark. 322, — S.W.3d — (2009) (per curiam) (holding that “an order of a circuit court cannot be reviewed for error when the addendum fails to include the documents on which the order was based.”).

An Appellant is required, for example, to include in his Addendum the motions and briefs supporting and opposing summary judgment. See Snowden v. JRE Investments, Inc., 2010 Ark. 80, — S.W.3d — (February 18, 2010) (per curiam).  In an appeal from a summary judgment decision, those motions will be “essential to an understanding of the case.” See Snowden, supra; see also  Ark. Sup. Ct. R. 4-2(a)(8).

Arkansas Supreme Court Rule 4-2(a)(8) provides the following concerning the Appellant’s Addendum:

 The appellant’s brief shall contain an addendum after the signature and certificate of service. The addendum shall contain true and legible copies of the non- transcript documents in the record on appeal that are essential for the appellate court to confirm its jurisdiction, to understand the case, and to decide the issues on appeal. The addendum shall not merely reproduce the entire record of trial court filings, nor shall it contain any document or material that is not in the record.

While the rule provides that not every document from the record of trial court filings should be included in the Appellant’s Addendum, it is necessary to include all documents in the record “that are essential for the appellate court to confirm its jurisdiction, to understand the case, and to decide the issues on appeal.” Ark. Sup. Ct. R. 4-2(a)(8).

Civil Practice Rule Changes On The Way–Comments on Suggested Rule Changes Due By March 30, 2010

~ Tasha C. Taylor ~ 1 Comment

The Arkansas Supreme Court handed down a per curiam decision on January 21, 2010, outlining proposed rule changes suggested by the Arkansas Supreme Court Committee on Civil Practice. 

The multiple proposed changes to the Arkansas Rules of Civil Procedure, the Arkansas Rules of the Supreme Court and the Court of Appeals, and the Arkansas Rules of Appellate Procedure–Civil are outlined in the Court’s per curiam order. 

Comments concerning the suggested rule changes must be submitted in writing to the Supreme Court Clerk’s office before March 31, 2010.

Denial of Motion to Intervene in a Dependency-Neglect Matter is Not Governed by Ark. Sup. Ct. R. 6-9

~ Tasha C. Taylor

The Arkansas Supreme Court defined the issue in Schubert v. Arkansas Department of Human Services, 2009 Ark. 596 (Dec. 3, 2009), as whether an appeal from the denial of a motion to intervene in a dependency-neglect matter is governed by Arkansas Supreme Court Rule 6-9 or whether it falls under Arkansas Rules of Appellate Procedure-Civil 2(a)(2).  Arkansas Supreme Court Rule 6-9 was adopted in 2006 as a Rule governing appeals only in dependency-neglect cases.  The rules for taking an appeal from a decision in a dependency-neglect cases vary from other appeals that may be appealed to the Arkansas Supreme Court pursuant to Rule 2 of the Arkansas Rules of Appellate Procedure-Civil.

The Court held that “the denial of a motion to intervene in a dependency-neglect matter is not governed by Rule 6-9,” but is instead governed by Rule 2(a)(2).

The determination of which rule applied significantly impacted that case where the appellants had failed to sign the notice of appeal along with their attorney.  That is because Rule 6-9(b)(1)(B) provides that “[t]he notice of appeal and designation of record shall be signed by the appellant, if an adult, and appellant’s counsel.”  Arkansas Rules of Civil Procedure–Civil 2(a)(2), however, includes no such signature requirement for the appellants.

The Arkansas Supreme Court concluded that because the appeal was “governed by Rule 2(a)(2), the [appellants’] failure to sign the notice of appeal was not a fatal defect[.]”

Failure to Sign Complaint Does Not Render Service of Process Defective

~ Tasha C. Taylor

The Arkansas Supreme Court has recently held that there is no signature requirement in Rule 4 of the Arkansas Rules of Civil Procedure that would require a complaint to be signed. See Jones v. Turner, 2009 Ark. 545 (Nov. 5, 2009).  As such, an unsigned complaint served with  proper summons does not render service of process defective.  For more analysis of this decision, visit the Downtown Lawyer legal blog.

Appellate Court Rule Changes Effective January 1, 2010

~ Tasha C. Taylor ~ 3 Comments

The Arkansas Supreme Court handed down a per curiam decision on October 29, 2009, that makes several changes to various Arkansas Supreme Court Rules.  Two  significant changes include: (1) the change in the font size for appellate briefs to 14 points and (2) the change in the page length for opening briefs to 30 pages.  Note that there is no change to the limit of 15 pages for an appellant’s reply brief.

Justice Danielson, concurring in the per curiam decision, expresses his hope that the enforcement of the Court’s rules is made a high priority.

View the per curiam here to read the  full text of the new Arkansas Supreme Court Rules rules that take effect January 1, 2010.

Arkansas Supreme Court Proposes Rule Changes as Possible Solution to Brief Deficiencies

~ Tasha C. Taylor ~ 2 Comments

The per curiam handed down by the Arkansas Supreme Court on June 4, 2009—In Re: Arkansas Supreme Court and Court of Appeals Rules 4-1 and 4-2–voices the Court’s frustration with deficiencies in appellate briefs that have been filed over the past few years:

Two years ago, this court highlighted problems relating to attorneys’ failure to comply with the rules for appellate briefs. In re Appellate Practice Concerning Defective Briefs, 369 Ark. App’x 553 (2007). Our warning apparently went unheeded. We continue to have to order rebriefing. In the 2006-07 court term, we ordered rebriefing in eleven cases, in the 2007-08 term, nine, and thus far in the current term, nineteen. In an attempt to aid appellate attorneys, we asked our Committee on Civil Practice to review Supreme Court and Court of Appeals Rule 4-2, which governs the contents of briefs, abstracts and addendums, and to submit a special and expedited report suggesting amendments to the rule.

The Committee has discharged its assignment. We have reviewed the Committee’s work and have made some revisions of our own. . . . 

The Court’s proposed changes to Rules 4-1 and 4-2 include the following:

  • A change to the font size for briefs from 12 points to 13 points;
  • More guidance concerning the content of abstracts;
  • Requirement that a court reporter “shall provide the appellant at a nominal charge an electronic copy of the transcript;”
  • More guidance concerning the contents of addendums;
  • Requirement that brief covers must now include the facsimile numbers and e-mail addresses of the attorneys preparing the briefs.

Perhaps the most significant changes are those proposed rule changes concerning brief deficiencies.

In its 2007 per curiam decision, In re Appellate Practice Concerning Defective Briefs, the Court warned that it might return to its former rule of affirmance based on deficient briefs:

Six years ago, this court amended its Supreme Court Rules to eliminate the harshness of an affirmance based on deficient appellate briefs. With this current raft of nonconforming briefs, and the time wasted and expense incurred, this court may be forced in the near future to return to its former rule of affirmance.

The Court’s 2009 per curiam proposes the following addition to Rule 4-2: “When an abstract or addendum is insufficient, the appellate court shall not go to the record to affirm or reverse the trial court’s decision.” In Re: Arkansas Supreme Court and Court of Appeals Rules 4-1 and 4-2.

The Court’s proposed rules provide for sanctions for attorneys who have been given the opportunity to cure deficiencies, but fail to do so: 

(c) Noncompliance. (1) Briefs not in compliance with the format required in Rules 4-1 and 4-2 shall not be accepted for filing by the Clerk. When a party submits a noncompliant brief on time that substantially complies with the these Rrules governing briefs, the Clerk shall mark the brief “tendered,” grant the party a seven-day compliance extension, and return the brief to the party for correction. If the party resubmits a compliant brief within seven (7) calendar days, then the Clerk shall accept that brief for filing on the date it is received.   

(2) If after a brief has been accepted for filing, it is determined that an appellee’s brief is deficient or an appellant’s brief is deficient in areas not addressed in Rule 4-2(b)(3), the court may give the party fifteen days to cure the noncompliance under the procedure described in Rule 4-2 (b)(3). If the problem is not timely corrected, then the court will take appropriate action, including affirming the judgment or decree at cost to the appellant, or otherwise giving judgment according to the requirements of the case.

(3) After the opportunity to cure deficiencies has been afforded pursuant to Rule 4-2(b)(3) or (c)(2), attorneys who fail to comply with the requirements of this rule shall be referred to the Office of Professional Conduct, and in addition, may be subject to any of the following: (A) contempt, (B) suspension of the privilege to practice before the Supreme Court or Court of Appeals for a specified time or until the attorney can demonstrate a satisfactory competency of the rules, or (C) imposition of any of the sanctions listed in Rule 11(c) of the Rules of Appellate Procedure-Civil.

In Re: Arkansas Supreme Court and Court of Appeals Rules 4-1 and 4-2, (June 4, 2009) (emphasis added).

For a complete list of proposed changes to Rules 4-1 and 4-2, view the Court’s June 4, 2009 per curiam–In Re: Arkansas Supreme Court and Court of Appeals Rules 4-1 and 4-2.

Anyone wishing to comment on the suggested rule changes must submit your comments before August 1, 2009 to: Leslie W. Steen, Clerk, Supreme Court of Arkansas, Attn.: Civil Procedure Rules, Justice Building, 625 Marshall Street, Little Rock, Arkansas 72201.