Category: Appellate Practice

Arkansas Court of Appeals Dismisses Case without Prejudice for Lack of Final Order; Court Notes that Only Documents From the Record May be Included in an Appellant’s Addendum

~ Tasha C. Taylor ~ 5 Comments

Today’s unpublished per curiam from the Court of Appeals (en banc)–Bank of the Ozarks v. Jim Wood Co., Case No. CA08-1488–serves as a reminder to practitioners of the necessity of appealing from a final order: 

The finality problem arises because the Bank’s claim against Capital has not been adjudicated, non-suited, or otherwise resolved by the circuit court. Under Ark. R. Civ. P. 54(b), an order that fails to adjudicate all of the claims as to all of the parties is not final for purposes of appeal. Although the circuit court may direct entry of a final judgment as to fewer than all of the parties by executing a Rule 54(b) certificate, that was not done here. In the absence of a final order, we must dismiss the appeal for lack of jurisdiction. See generally Hodges v. Huckabee, 333 Ark. 247, 968 S.W.2d 619 (1998).

The Court dismissed the appeal without prejudice.

In addition to the lack of a final order, the Court noted that the appellant’s addendum contained documents that were not included in the record on appeal.  The Court’s per curiam also reminds practitioners that Arkansas Appellate Courts do not consider documents included in an appellant’s addendum that are not contained in the record.  See, e.g., Union Pac. R.R. v. Barber, 356 Ark. 268, 149 S.W.3d 325 (2004); Barnett v. Monumental Gen. Ins. Co., 354 Ark. 692, 128 S.W.3d 803 (2003); Clark v. Pine Bluff Civ. Serv. Comm’n, 353 Ark. 810, 120 S.W.3d 541 (2003).

Rule 5-2 Rewritten: (1) Arkansas Becomes First State with Electronic Official Reports; (2) Court Abandons Use of “Unpublished” Decisions

~ Tasha C. Taylor ~ 2 Comments

In today’s per curiam (dated May 28, 2009), the Arkansas Supreme Court announces two significant changes to appellate practice in Arkansas with the adoption of the Court’s new Rule 5-2.

(1) Arkansas Becomes First State with Electronic Official Reports
First, “effective July 1, 2009, the electronic version of appellate decisions posted on the Arkansas Judiciary website will be the official report of those decisions.”  With this decision, Arkansas will become “the first state in the nation to publish and distribute the official report of its appellate decisions electronically.”  

When the Court launches the new format for its official reports this summer, the searchable database maintained by the Reporter of Decisions will include all opinions issued after February 14, 2009, which is the closing date for the final volumes of the Arkansas Reports and the Arkansas Appellate Reports (375 Ark./104 Ark. App.).  Arkansas Supreme Court Rule 5-2 has been rewritten to reflect these changes.

(2) Court Abandons Use of “Unpublished” Decisions
Second, the Court’s change to Rule 5-2 “abandons the distinction between published and unpublished opinions and makes every Supreme Court and Court of Appeals opinion issued after July 1, 2009, precedent.”

In adopting this change, the Court notes that the General Assembly had expressed its view on this matter in Act 162 of 2009.  For a discussion of the effects of the passage of Act 162 of 2009 earlier this year, see Arkansas General Assembly Revives Anastasoff Controversy–Pondering the Effect of Act 162.

For more about today’s per curiam and Act 162, view Rep. Steve Harrelson’s May 28, 2009 blog post at www.underthedome.com.

Arkansas Supreme Court Voices Concern About Deficiency Problems in Appellate Briefs

~ Tasha C. Taylor

In a per curiam handed down on May 21, 2009, the Arkansas Supreme Court ordered rebriefing due to a deficiency in the appellant’s abstract.  See Roberts v. Roberts, Case No. 08-740.  According to a majority of the Court, the appellant’s abstract failed to comply with Arkansas Supreme Court Rule 4-2.  

While Justice Brown opined, in his dissent, that the case should not be sent back for rebriefing due, in part, to the additional delay and expense to the appellant, the majority of the Court disagreed.  

Justice Corbin wrote, in his concurring opinion, which Justice Imber joined, that he “must write separately to voice [his] concern about the problems arising from the increased number of appeals with deficiency problems.”  Justice Corbin blamed both practitioners and the Court of Appeals for the current deficiency problems:

In fact, I believe the inconsistency of our appellate courts has contributed greatly to the
current dilemma we face. I do not believe the problem stems from confusion over our rules.
If it were simply a matter of the rules being confusing, we would have had more problems
back in 2001 when the current rule was adopted, not eight years later. I believe the real
problem is the fact that attorneys are being held to two different standards. This court expects
the work product submitted to us to be in compliance with our rules. The court of appeals,
-7- 08-740
however, is less stringent in enforcing those same rules.

In fact, I believe the inconsistency of our appellate courts has contributed greatly to the current dilemma we face. I do not believe the problem stems from confusion over our rules.  If it were simply a matter of the rules being confusing, we would have had more problems back in 2001 when the current rule was adopted, not eight years later. I believe the real problem is the fact that attorneys are being held to two different standards. This court expects the work product submitted to us to be in compliance with our rules. The court of appeals, however, is less stringent in enforcing those same rules.

According to Justice Corbin, “attorneys need to know that the briefs they submit are acceptable to both the court of appeals and this court.”  He adds that “such consistency is the only way to resolve this problem.”

District Court Judgment is Final Where Appeal to Circuit Court is Not Made Within 30 Days

~ Tasha C. Taylor ~ 1 Comment

The Arkansas Supreme Court dismissed the appeal presented in Arkansas State University v. Professional Credit Management, Inc. on March 19, 2009.

The Court determined, sua sponte, that the appeal that was taken from the district court to the circuit court was untimely because the district court record was not filed in the circuit court within 30 days of the district court’s judgment as is required by Rule 9 of the Arkansas District Court Rules.

The 30-day requirement for filing appeals from district court to circuit court is both mandatory and jurisdictional.  Thus, a circuit court has no authority to accept an untimely appeal from district court.  The Court held that where the time has passed for filing an appeal in circuit court, the district court order becomes final because the circuit court is whthout jurisdiction to hear the appeal that is untimely filed.  Where the circuit court did not have jurisdiction to take the appeal, the appellate court also lacked subject matter jurisdiction.

The Arkansas Supreme Court also emphasized that the rules governing post trial motions for appeals from district court to circuit court “are in marked contrast to the rules governing appeals from circuit court to this court and the court of appeals.”  As noted by the Court, “Rule 4 of the Arkansas Rules of Appellate Procedure–Civil provides that the deadline for filing an appeal may be extended depending on the particular posttrial motion that is filed, but there is certainly no such extension of time when filing appeals from district court to circuit court.”  Rather, District Court Rule 9(a) expressly provides that the 30-day period for filing appeals from the district court to the circuit court can not be extended. 

For other accounts of the Arkansas Supreme Court’s ruling in this case, see the following discussions:

Comment Period for Proposed Civil Practice Rule Changes Ends May 15, 2009

~ Tasha C. Taylor

ark-judiciarySee the Arkansas Supreme Court’s March 5, 2009 Per Curiam outlining the proposed rule changes that have been recommended by the Arkansas Supreme Court Committee on Civil Practice.

According to the Per Curiam, comments on the suggested rule changes should be directed, in writing, to Clerk Les Steen prior to May 15, 2009.

Note the proposed changes to rules affecting appellate practice:

  • Arkansas Supreme Court Rule 4-8. Procedure for no-merit briefs, pro se points, and responses in involuntary-commitment cases (the proposed rule change outlines this procedure).
  • Arkansas Supreme Court Rule 6-7. Taxation of Costs (the proposed rule change increases the filing fee awarded to an appellant who obtains a reversal to reflect the actual cost of the filing fee).
  • Arkansas Rules of Appellate Procedure–Civil, Rule 6. Record on Appeal (the proposed rule change affects the time frame for appellee to designate additional record materials; harmonizes rule with Rule of Appellate Procedure-Civil 4(a)). 

Arkansas General Assembly Revives Anastasoff Controversy–Pondering the Effect of Act 162

~ Tasha C. Taylor ~ 2 Comments

273659781_159The ability of courts to hand down “unpublished decisions” has long been the subject of much debate in Arkansas, as well as in other jurisdictions. See, e.g., Williams v. State, 351 Ark. 215, 91 S.W.3d 54 (2002) (holding that appellant lacked standing to challenge constitutionality of the the Court Rule permitting the publication of unpublished decisions), cert. denied, 539 U.S. 907 (2003); see also Anastasoff v. U.S., 223 F.3d 898, (8th Cir. 2000), vacated on rehearing en banc, 235 F.3d 1054 (8th Cir. 2000).

The Arkansas 87th General Assembly recently passed SB33 (by Senator R. Thompson and Representative Harrelson), now Act 162, which might very well put an end to this debate in Arkansas.

This new law purports to amend Arkansas Supreme Court Rule 5-2(d), which provides that opinions rendered by the Court of Appeals as “not designated for publication . . . shall not be cited, quoted, or referred to by any court or in any argument, brief, or other materials presented to any court[.]” Ark. Sup. Ct. R. 5-2(d) (2009).

The adoption of this Act as law by the Arkansas General Assembly comes on the heels of the Arkansas Supreme Court’s rejection of a similar change to the Rule just last year.  In a per curiam released on January 10, 2008, the Court announced that it was declining “by a vote of 4 to 3” to approve the proposed change to Rule 5-2 that was recommended by the Arkansas Supreme Court Committee on Civil Practice.  The per curiam stated that Chief Justice Hannah, Justice Brown, and Justice Imber would approve the Committee’s proposed change to the rule.

While the legislature’s action might seem to create a separation of powers issue, note that the Act provides that it was passed with the authority granted to the legislature by Amendment 80 to the Arkansas Constitution.  Section 9 of Amendment 80 provides the following:

§ 9. Annulment or amendment of rules.

Any rules promulgated by the Supreme Court pursuant to Sections 5, 6(B), 7(B), 7(D), or 8 of this Amendment may be annulled or amended, in whole or in part, by a two-thirds (2/3) vote of the membership of each house of the General Assembly.

Furthermore, the Arkansas Supreme Court has recognized that its authority to promulgate rules of procedure is not exclusive:

The Arkansas Constitution confers upon the courts the inherent authority to promulgate rules of procedure. Miller v. State, 262 Ark. 223, 555 S.W.2d 563 (1977). However, Article 7, sections 1 and 4, “do not expressly or by implication confer on this Court exclusive authority to set rules of court Procedure.” Jackson v. Ozment, 283 Ark. 100, 101, 671 S.W.2d 736, 738 (1984) overruled on other grounds by Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992). The court shares this authority with the General Assembly. St. Clair v. State, 301 Ark. 223, 783 S.W.2d 835 (1990); Curtis v. State, 301 Ark. 208, 783 S.W.2d 47 (1990). Thus, it is not a violation of separation-of-powers principles for the legislature to enact statutes pertaining to rules of procedure, St. Clair v. State, supra, although such statutes may be superseded by the rules promulgated by the judiciary. See Casement v. State, 318 Ark. 225, 884 S.W.2d 593 (1994); Weidrick v. Arnold, supra.

State v. Lester, 343 Ark. 662, 668, 38 S.W.3d 313, 316 (2001).

It seems that on the 91st day following the legislature’s adjournment, Act 162’s amendment to the Supreme Court Rule might very well have the intended effect of permitting attorneys to rely on unpublished decisions . . . unless the Arkansas Supreme Court promulgates a rule superseding it. See Reeves v. State, Reeves v. State, 374 Ark. 415, — S.W.3d —- (2008) (recognizing that Amendment 7 to the Arkansas Constitution provides that Acts of the General Assembly not containing an emergency clause or a specified effective date become effective on the ninety-first day after the legislature adjourns).  With the recent retirement of Justice Glaze and the appointment of Justice Wills to the Court, it might very well be that the decision of the Arkansas General Assembly is now favored by a majority of the Arkansas Supreme Court.

Arkansas Supreme Court Ignores Argument in Appeal of Lower Court Decision Where Only One Basis for the Lower Court Ruling Was Properly Challenged on Appeal

~ Tasha C. Taylor

In its January 15, 2009 decision in Emilia Duke v. Shinpaugh (Case No. 08-311), the Arkansas Supreme Court ruled that “where the circuit court based its decision on two independent grounds and appellant challenges only one on appeal, the appellate court will affirm without addressing either.”

It was clear in that case that the circuit court judge had based its decision on two clearly independent grounds.  The Arkansas Supreme Court clarified that  its standard of review on appeal from a bench trial is whether the lower court’s findings were clearly erroneous or clearly against the preponderance of the evidence.  Under that standard of review, the Arkansas Supreme Court determined that it was precluded from addressing the appellant’s assertions of error because the appellant had failed to challenge both independent grounds for the circuit court’s decision.

Appellate Court Rule Changes for Criminal Appeals–Effective October 1, 2008

~ Tasha C. Taylor ~ Leave a comment

The Arkansas Supreme Court handed down a per curiam decision today (September 18, 2008), that will result in changes to the following three rules, effective October 1, 2008: (1) Rule 4-3 of the Rules of the Supreme Court and Court of Appeals; (2) Rule 4 of the Arkansas Rules of Appellate Procedure-Criminal; and (3) Rule 24.3 of the Rules of Criminal Procedure.

Changes to Ark. Sup. Ct.R. 4-3–Briefs in Criminal Cases: The addition of subsection (f) provides that briefs containing “photographs, DVDs, or any other visual medium” that is alleged by either party to be child pornography must be sealed.  It is the responsibility of counsel on appeal to file a motion to seal the brief that must accompany the brief when it is filed with the Clerk of the Court.  Subsection (f) also prohibits anyone other than the court, its personnel, and the attorneys of record from receiving a copy of the brief that contains the materials to be sealed.

* The addition of subsection (f) resulted in the renumbering of the subsequent subsections–this means that the Court’s review of errors in death or life imprisonment cases will now be referred to as a Rule 4-3(i) review rather than a 4-3(h) review.

Changes to Ark. R. App. P.–Crim. R. 4–Time for filing record, contents of record: Three subsections have been added to this rule–(b), (c), (f).  Subsections (b) and (c) provide a method for obtaining an extension of time to file a record in a criminal appeal.  This method now allows a circuit court to grant a motion by a Defendant/Appellant who requests an extension to file the record where both sides consent to the extension.  Pursuant to subsection (f), the same extension is not so easily obtained where the state is the Appellant, as subsection (f) provides that subsections (b) and (c) don’t apply to an appeal by the state.

Change to Ark. R. Crim. P. 24.3–Pleading by the Defendant: The only change here is the addition of a new Conditional Plea Form for use with Rule 24.3(b).