Rule 54(b) Strikes Twice . . . in the Same Case.

February 10, 2011March 12, 2014 ~ Andy Taylor ~ 5 Comments

Case: Beverly Enterprises Inc. v. Keaton (Beverly II)

Appellate Practice Tip: Before appealing, make certain that all claims against all parties are either properly dismissed (meaning that a court order is entered) or adjudicated. Otherwise, the order from which you are appealing is a non-final order, and the Supreme Court will refuse to reach the merits of the appeal. See Ark. R. Civ. P. 54(b).

Case Explanation: The Arkansas Supreme Court’s recent decision in Beverly Enterprises Inc. v. Keaton (Beverly II) represents the second time that the same case has been dismissed without prejudice as a result of a Rule 54(b) problem. 2011 Ark. 7; see also Beverly Enterprises, Inc. v. Keaton, 2009 Ark. 431 (Beverly I).

The Plaintiff in Beverly filed suit both individually and in her capacity as administratrix of the estate. Beverly I, 2009 Ark. 431, at 1. In the original lawsuit, there were three defendants, all of which were business entities that were affiliated with Beverly Enterprises, Inc. (the “Beverly Defendants”). Beverly I, at 2. There were five claims alleged in the original complaint:

Violation of the duty of care under the Arkansas Medical Malpractice Act;
Violation of the general duty to provide adequate and appropriate custodial care and supervision;
Violation of the Arkansas Long Term Care Resident’s Rights Statute;
Deception in representing that they could provide proper care; and
Violation of the Arkansas Deceptive Trade Practices Act.

Id. at 2.

The plaintiff later amended her complaint to add a breach of fiduciary claim against the Beverly Defendants, and also added an additional Beverly entity and nine Beverly executives as defendants on that claim. Id. at 2. The amended complaint also added a claim for violation of the Uniform Fraudulent Transfer Act against all of the above defendants, as well as one other individual and five other entities. Id. at 2-3.

The claims and parties are somewhat complicated, so they are summarized in the table below. To add some level of clarity, the parties referred to in this blog post as the “Beverly Defendants” are indicated in orange.

Source Document	Claim	Defendants
Original Complaint	Violation of Arkansas Medical Malpractice Act	Beverly Enterprises, Inc. Beverly Health and Rehabilitation Services, Inc. Beverly Enterprises – Arkansas, Inc., d/b/a Beverly Healthcare – Camden)
Original Complaint	Violation of General Duty To Provide Adequate and Appropriate Custodial Care	Beverly Enterprises, Inc. Beverly Health and Rehabilitation Services, Inc. Beverly Enterprises – Arkansas, Inc., d/b/a Beverly Healthcare – Camden)
Original Complaint	Violation of Arkansas Long Term Care Resident’s Rights Statute	Beverly Enterprises, Inc. Beverly Health and Rehabilitation Services, Inc. Beverly Enterprises – Arkansas, Inc., d/b/a Beverly Healthcare – Camden)
Original Complaint	Deception by Representing Ability To Provide Proper Care	Beverly Enterprises, Inc. Beverly Health and Rehabilitation Services, Inc. Beverly Enterprises – Arkansas, Inc., d/b/a Beverly Healthcare – Camden)
Original Complaint	Violation of Arkansas Deceptive Trade Practices Act	Beverly Enterprises, Inc. Beverly Health and Rehabilitation Services, Inc. Beverly Enterprises – Arkansas, Inc., d/b/a Beverly Healthcare – Camden)
Amended Complaint	Breach-of-Fiduciary Claim	Beverly Enterprises, Inc. Beverly Health and Rehabilitation Services, Inc. Beverly Enterprises – Arkansas, Inc., d/b/a Beverly Healthcare – Camden) Beverly Indemnity, Ltd. William R. Floyd Douglas J. Babb David R. Devereaux Jeffrey P. Freimark Cindy H. Susienka Patrice K. Acosta James M. Griffith Patricia C. Killing Richard Skelly, Jr.
Amended Complaint	Violation of Uniform Fraudulent Transfer Act	Beverly Enterprises, Inc. Beverly Health and Rehabilitation Services, Inc. Beverly Enterprises – Arkansas, Inc., d/b/a Beverly Healthcare – Camden) Beverly Indemnity, Ltd. William R. Floyd Douglas J. Babb David R. Devereaux Jeffrey P. Freimark Cindy H. Susienka Patrice K. Acosta James M. Griffith Patricia C. Killing Richard Skelly, Jr. Rubin Schron Fillmore Capital Partners, LLC Fillmore Strategic Investors, LLC Pearl Senior Care, Inc. PSC Sub, Inc. Geary Property Holdings, LLC

At a pretrial hearing, the plaintiff’s attorney acknowledged that no wrongful death claim had ever been alleged against any defendant, and also announced to the court that an agreement had been reached under which the plaintiff would nonsuit all claims against all defendants, except for the claims against the Beverly Defendants. Beverly I, 2009 Ark. 431, at 3. On the first day of trial, an order was entered dismissing with prejudice the plaintiff’s wrongful death claim.

After a jury trial, a judgment was entered against the Beverly Defendants on the negligence claims, and a punitive damages award was entered against two of those defendants. Id. at 3. A separate judgment was entered the same day declaring the Civil Justice Reform Act’s limitation on punitive damages unconstitutional. Id. at 3. However, no order was entered adjudicating the other claims or the other defendants. Id. at 3.

The Beverly Defendants appealed, but the Arkansas Supreme Court refused to reach the merits of the case. Id. The Court quoted Arkansas Rule of Civil Procedure 41(a), which provides that a dismissal without prejudice by a plaintiff “is a matter of right, it is effective only upon entry of a court order dismissing the action.” Id. at 4. Based on this, and based on Rule 54(b), the Court held that “a judgment is not final if it has not adjudicated all the claims against all the parties.” Beverly I, 2009 Ark. 431, at 4.

In Beverly I, only the negligence claims against the Beverly Defendants had been adjudicated. Id. at 5. The other claims and other parties had been neither properly adjudicated nor dismissed. Id. at 5. In essence, all of the claims and all of the parties in the chart above remained unadjudicated and not dismissed, except for the negligence claims against the Beverly Defendants. Therefore, the Supreme Court dismissed the appeal without prejudice.

Beverly II represented the second attempt to appeal the case. After the dismissal without prejudice in Beverly I, the trial court entered an order dismissing “with prejudice all of the Plaintiff’s claims against the Defendants save and except for the Beverly Defendants.” Beverly II, 2011 Ark. 7, at 1-2. It appears that this order properly dismissed all of the claims against the defendants who were added in the amended complaint (the defendants listed in the table above in black text). However, there were still claims remaining against the Beverly Defendants that still had not been adjudicated or dismissed. Id. at 2. Therefore, the Supreme Court held that the “remaining claims against Beverly must be properly adjudicated or dismissed before this court acquires jurisdiction to hear the appeal.” Id. at 2.

Arkansas appellate attorneys should be very careful about Rule 54(b) problems, as both the Arkansas Supreme Court and Arkansas Court of Appeals are very particular about compliance with the rule. Even where a plaintiff intends to waive certain claims, and even where it is clear from the transcript that the plaintiff intended to waive the claims, it is important to review the pleadings and orders to make certain that all claims against all parties have been adjudicated or dismissed.

–Andy Taylor

Arkansas Court of Appeals Orders Rebriefing in Two Cases; Warns Appellate Attorneys of Pitfalls of Not Strictly Adhering to Rules

December 8, 2010August 24, 2013 ~ Tasha C. Taylor ~ 4 Comments

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 Fowler decision, 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.

Fowler v. State, 2010 Ark. App. 811, at 2–3 (Glover, J., concurring) (emphasis added) (footnotes omitted).

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. See Arkansas 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.

For more on this topic, view our previous posts:

–Tasha Taylor

The Rule 54(b) Trap: Dealing with Non-final Orders in Cases with Multiple Claims or Multiple Parties

November 15, 2010March 12, 2014 ~ Tasha C. Taylor ~ 8 Comments

Recurring Rule 54(b) Issues

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.

Ark. R. Civ. P. 54(b) (2010).

The Rule 54(b) Certificate

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 ________, ________.

_________________________________________
Judge

Ark. R. Civ. P. 54(b) (2010).

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)).
Conditional orders—As a general rule, a conditional order, becoming final upon contingencies, which may or may not occur, is not a final appealable order. See Coleman v. Regions Bank (Case No. 04-750) (Ark. Nov. 3, 2005).
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.

Ark. R. App. P. – Civil 3 (Addition to Reporter’s Notes, 2010 Amendment).

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).

–Tasha Taylor

UPDATE: Arkansas Supreme Court Clarifies Original and Appellate Jurisdiction for Constitutional Amendments: Forrester v. Daniels.

October 22, 2010June 6, 2025 ~ Andy Taylor

UPDATE Below the Jump:

The Arkansas Supreme Court handed down its decision today in Forrester v. Daniels, clarifying that it has original jurisdiction over challenges to constitutional amendments that are initiated by the citizens, but appellate jurisdiction over challenges to constitutional amendments referred by the legislature. Forrester v. Daniels, 2010 Ark. 397. This has been the rule for many years, but had been called into question after amendment 80 to the Arkansas Constitution became effective on July 1, 2001. See Becker v. McCuen, 303 Ark. 482, 708 S.W.2d 71 (1990).

Because the Court did not reach the merits of the Petitioner’s case, this blog post will not discuss the merits in detail, but will only address them briefly. The proposed amendment at issue here deals with the maximum interest rate that can be charged by various entities, and also deals with the power of governmental units to issue bonds. Forrester, 2010 Ark. 397, at 2-4. The gist of the challenge is that the legislature attempted to cover too many issues in a single proposed amendment. Id. at 3-4.

The importance of this case, however, is more procedural in nature. Because, as discussed above, the status of the Supreme Court’s jurisdiction (original or appellate) was in doubt after the enactment of Amendment 80, the Petitioner filed nearly identical actions in the Pulaski County Circuit Court and the Arkansas Supreme Court, both on the same day.

A proposed constitutional amendment may appear on the ballot by one of two methods. The first is by referral from the legislature, the requirements of which are provided in at Arkansas Constitution Article 19, § 22. The second method is through the initiative and referendum power reserved to the people. This procedure is outlined at Arkansas Constitution Amendment 7.

Amendment 7, dealing with amendments resulting from initiatives of the people, provides that “[t]he sufficiency of all state-wide petitions shall be decided in the first instance by the Secretary of State, subject to review by the Supreme Court of the State, which shall have original and exclusive jurisdiction over all such causes.” Ark. Const. Amend. 7. Article Nineteen, Section 22 of the Arkansas Constitution has no such provision, so the Arkansas Supreme Court in Becker held that it did not have original jurisdiction, but had only appellate jurisdiction pursuant to Article 7, § 4 of the Arkansas Constitution. See Becker, 303 Ark at 482, 708 S.w. 2d at 71.

The reason this is an issue in Forrester is that Article 7 was repealed by Amendment 80 of the Constitution. Amendment 80 provides, in part, that “[t]he Supreme Court shall have . . . [o]riginal jurisdiction to determine sufficiency of state initiative and referendum petitions and proposed constitutional amendments.” Ark. Const. Amend. 80, § 2(D)(4). Because the provision conferring original jurisdiction on the Arkansas Supreme Court includes the phrase “and proposed constitutional amendments,” the Petitioner argued that the Arkansas Supreme Court now has original jurisdiction over all proposed constitutional amendments, and not just those resulting from initiatives. See Forrester, supra.

In a unanimous opinion, the Arkansas Supreme Court disagreed. The Court held in Forrester that the phrase “and proposed constitutional amendments” must be read in the context of the phrase “to determine sufficiency of.” Forrester, 2010 Ark. 397, at 8-9. According to the Court, that phrase only makes sense if “proposed constitutional amendments” refers only to amendments that result from initiatives from the people, as those are the only types of amendments subject to a sufficiency challenge. Id. For proposed amendments referred from the legislature, the only question is “whether the procedures governing the method for the legislature to propose an amendment have been followed.” Id.

In an interesting paragraph at the end of the opinion, the Court then seemed to look at its own rules to help it interpret the constitutional issue. The Court noted that it had amended its rules to conform to the changes resulting from Amendment 80. After the changes, Rule 6-5 read as follows:

(a) Original Jurisdiction. The Supreme Court shall have original jurisdiction in extraordinary actions as required by law, such as suits attacking the validity of statewide petitions filed under Amendment 7 of the Arkansas Constitution or, where the Supreme Court’s contempt powers are at issue.

Ark. Sup. Ct. R. 6-5(a) (2010).

In Forrester, the Court held its conclusion was “further bolstered” by the fact that it had amended the rules in response to Amendment 80, but had done so “in a way to indicate that our jurisdiction of the instant challenge is now original.” Id. at 9-10. Arkansas appellate lawyers should bear this in mind when dealing with procedural issues before the Arkansas Supreme Court, as the Court seems willing to look to its own rules to help it interpret constitutional provisions.

Continue reading “UPDATE: Arkansas Supreme Court Clarifies Original and Appellate Jurisdiction for Constitutional Amendments: Forrester v. Daniels.” →

Using Arkansas’s New Citation Format (Ark. Sup. Ct. R. 5-2(d)(2))

October 7, 2010August 24, 2013 ~ Tasha C. Taylor ~ 1 Comment

Arkansas’s New Electronic Database of Opinions

In May of 2009, the Arkansas Supreme Court handed down a per curiam decision that made Arkansas the first state in the nation to publish its official reports in electronic format only. See Rule 5-2 Rewritten: (1) Arkansas Becomes First State with Electronic Official Reports; (2) Court Abandons Use of “Unpublished” Decisions. The Court ordered that the official report of decisions issued after February 14, 2009, “shall be an electronic file created, authenticated, secured, and maintained by the Reporter of Decisions on the Arkansas Judiciary website.” Ark. Sup. Ct. R. 5-2(b)(1).

Arkansas’s New Citation Format

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. See Ark. 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.

You can also locate the page numbers for this case by finding the pdf file for W.E. Pender & Sons, Inc. on the Arkansas Judiciary website (type “2010 Ark. 52” into the search box).

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.

–Tasha Taylor

Watch Arkansas Supreme Court Oral Arguments Live Online From Your Computer This Morning

September 16, 2010August 25, 2013 ~ Tasha C. Taylor

Tune in on your computer this morning to become part of Arkansas history as the Arkansas Supreme Court launches its live video feed of oral arguments at 9:00 a.m., CST.

Two cases are set for oral argument this morning. Click here to view Arkansas appellate attorneys present arguments to the Arkansas Supreme Court in the following cases:

1. Tim S. Parker v. Honorable Gerald K. Crow, Circuit Judge, from an Original Action, Case No. 10-327. The attorney of record for the appellants is Timothy Steven Parker and the attorney for appellee is Colin R. Jorgensen from the Attorney General’s office.

2. Baptist Health v. Bruce Murphy, M.D., from Pulaski Circuit, hireenth Division, Case No. 09-1070. The attorneys of record for Baptist Health are Robert Lee Henry III and Seth Ward III. The attorney of record for Bruce Murphy, M.D. is Janet Lynn Pulliam.

–Tasha Taylor

The End of an Era: Final Bound Volume of Arkansas Reports Issued

June 28, 2010August 25, 2013 ~ Tasha C. Taylor

In a press release dated June 28, 2010, the Administrative Office of the Courts announces that the final bound volume of the Arkansas Reports and Arkansas Appellate Reports has been issued.

The final issue of the Arkansas Reports comes one hundred and seventy-three years after its first publication. Arkansas is the first state in the country to eliminate the use of bound volumes of the appellate courts’ opinions. See Act 221 of 2009. The final bound volume of the Arkansas Reports includes decisions from November 5, 2008 to February 12, 2009. All opinions of the Arkansas Supreme Court and Court of Appeals handed down on or after February 14, 2009 are officially published as electronic versions, which can be found on the judiciary’s web site.

–Tasha Taylor

Arkansas Supreme Court Adopts Rule Changes

June 15, 2010August 24, 2013 ~ Andy Taylor

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.

–Andy Taylor

Arkansas Supreme Court To Permit Cameras In Appellate Proceedings

May 27, 2010August 25, 2013 ~ Tasha C. Taylor ~ 2 Comments

Today’s per curiam from the Arkansas Supreme Court–In Re Amendment to Administrative Order No. 6–permits broadcasting, recording, and photography in appellate proceedings in the Arkansas Supreme Court and the Arkansas Court of Appeals.

This big change in the way Arkansas’s appellate courts do business comes with a lengthy set of rules governing the use of cameras in the courtrooms–the following is a summary of some of the highlights from the amendments to Administrative Order Number 6 that govern the use of cameras and electronic devices in all courtrooms across the state:

Judges may authorize broadcasting, recording, or photographing in the courtroom and the areas adjacent to the courtroom throughout the proceedings, recesses, etc., as long as the participants will not be distracted and the dignity of the proceedings will not be impaired.With a timely objection, parties or attorneys can preclude broadcasting, recording, or photographing of the proceeding.
Witnesses have a right to refuse to be broadcast, recorded, or photographed.
Jurors, minors without parental or guardian consent, victims in cases involving sexual offenses, and undercover police agents or informants shall not be broadcast, recorded, or photographed.
Juvenile matters, probate matters, and domestic relations matters shall not be subject to broadcasting, recording, or photographing.
Judges will retain ultimate control of the application of the rules and their decisions will be final and not subject to appeal. At any time, the court may determine in its discretion to terminate the broadcast, recording, or photography.
Only two cameras will be permitted in the courtroom during a trial: one camera for still photography and one for video/television photography. The media will have a pooling arrangement whereby representatives of the news media will share the photography and video footage. If the court has its own broadcasting, recording, or photography system, the court’s system shall be used, unless the court determines otherwise.
Electronic devices cannot be used in courtrooms to broadcast, record, photograph, e-mail, blog, tweet, text, post, or transmit information by any other means except as may be allowed by the court.
Oral arguments at the Arkansas Supreme Court and Court of Appeals may be recorded, broadcasted, or webcasted through a live or tape-delayed format as the Supreme Court shall direct. The Supreme Court’s courtroom is being equipped with a system to record and broadcast oral arguments that the Court plans to implement in the 2010 Fall Term of the Court. Those recordings will be retained at the Clerk’s office and may be purchased for a cost to be set by the Court to cover the cost of the copies. Objections to the recording of oral arguments and other appellate proceedings may be made to the Court.

–Tasha Taylor

Arkansas Supreme Court Rule 4-2 Requires Appellant’s Addendum To Be “Just Right”

May 27, 2010August 25, 2013 ~ Tasha C. Taylor ~ 2 Comments

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).

West Memphis Adolescent Residential, LLC, 2010 Ark. App. 450, at 12, — S.W.3d —, — (emphasis added).

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.”

Arkansas Supreme Court Rule 4-2 was amended in 2009 to provide more guidance to appellate attorneys concerning, among other things, the contents of the appellant’s addendum. See previous blog post, Arkansas 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. Yesterday’s announcement to the appellate bar by the Arkansas Court of Appeals echos previous warnings from the Arkansas Supreme Court concerning deficiencies in briefs that led to the 2009 rule changes, which brought significant amendments to Rule 4-2, governing the contents of briefs on appeal. See, e.g., In re Appellate Practice Concerning Defective Briefs, 369 Ark. App’x 553 (2007); In Re: Arkansas Supreme Court and Court of Appeals Rules 4-1 and 4-2.

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.” See Ark. Sup. Ct. R. 4-2(a)(8).

–Tasha Taylor