Category: Appellate Practice

Arkansas Democrat Gazette: Two Appellate Court Races Settled, One Headed to November Runoff

~ Tasha C. Taylor ~ 3 Comments
The Arkansas Democrat Gazette reports the following election results from the May 18, 2010 elections for Arkansas’s contested appellate court seats:

 

Supreme Court Position 3
2,434 of 2,516 precincts – 97 percent
Courtney Henry, 243,995 – 58 percent
John Fogleman, 178,838 – 42 percent

Appeals Court District 2 Position 1
511 of 557 precincts – 92 percent
Jo Hart, 40,312 – 52 percent
Rhonda Wood, 37,618 – 48 percent

Supreme Court Position 6
2,434 of 2,516 precincts – 97 percent
Karen Baker, 201,778 – 48 percent
Tim Fox, 153,723 – 37 percent
Evelyn Moorehead, 62,132 – 15 percent

The runoff between Judges Fox and Baker for position 6 on the Arkansas Supreme Court will be held at the general election on November 2, 2010.

May 18, 2010 Judicial Election Results

~ Tasha C. Taylor ~ 1 Comment

Today’s judicial elections included elections for three contested seats on Arkansas’s appellate courts.  For up-to-the-minute election results for those positions, follow these links:

  1. Arkansas Supreme Court Position 3: John Fogleman, Courtney Henry
  2. Arkansas Supreme Court Position 6: Karen Baker, Tim Fox, Evelyn Moorehead
  3. Arkansas Court of Appeals District 02, Position 01: Josephine Linker Hart (incumbent), Rhonda Wood

West No Longer Publishing All Reported Decisions in South Western Reporter

~ Andy Taylor

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.

Continue reading “West No Longer Publishing All Reported Decisions in South Western Reporter” →

Appellate Court Updates

~ Tasha C. Taylor

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. 

The Appellate Update can be found on the Court’s website each month.  The March volume is currently available.

Below is a sample of the case highlights included by topic in the March volume of the Appellate Update:

Arkansas Supreme Court Overrules Previous Arkansas Appellate Court Decisions Inconsistent with the Court’s Strict Preservation Rule

~ Tasha C. Taylor ~ 2 Comments

Today, the Arkansas Supreme Court overruled two previous decisions that were in conflict with the Court’s holdings that require a party to make a “contemporaneous objection at trial” in order to preserve an argument for appellate review. Lamontagne v. Arkansas Department of Human Services, 2010 Ark. 190, at 7, Case No. 09-859 (April 22, 2010). 

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.” see Roberts v. Yang, 2010 Ark. 55, at 6, ___ S.W.3d ___; see also Lamontagne, 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.

Lamontagne, 2010 Ark. 190, at 13 (Wills, J., Danielson, J., concurring).

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.

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).