New Arkansas Appellate Court Rules Effective August 1, 2013

August 1, 2013August 24, 2013 ~ Tasha C. Taylor ~ 1 Comment

Arkansas attorneys filing briefs and motions in the Arkansas Supreme Court or Arkansas Court of Appeals should be aware that two new rules go into effect beginning today (August 1, 2013) that change the procedure for filing briefs and pleadings in Arkansas’s appellate courts. Arkansas Supreme Court Rule 3-7 requires that a cover sheet now be included with case initiating documents (the initial record or pleading) and Rule 1-8 requires that briefs and pleadings now be submitted electronically in addition to the paper copies also required by the Court’s rules. The following is a summary of the two new rules. Of course, we advise that you review these rules in full prior to filing anything in Arkansas’s appellate courts.

Rule 3-7. Cover Sheet

Rule 3-7 of the Rules of the Arkansas Supreme Court and Court of Appeals requires that a case initiating cover sheet be filed with the Clerk of the Supreme Court and Court of Appeals whenever an initial record or pleading is filed in one of Arkansas’s appellate courts. See In Re Adoption of Supreme Court and Court of Appeals Rule 3-7. Cover Sheet, 2013 Ark. 277.

The following is an image of the new appellate court cover sheet—a link to the cover sheet form on the Supreme Court’s website (as well as instructions for completing the form) can be found here.

Rule 1-8. Courtesy Electronic Copies

In an effort to move toward electronic filing in Arkansas’s appellate courts, the Arkansas Supreme Court and Court of Appeals are now requiring appellate attorneys to provide a courtesy electronic copy in PDF format of essentially all pleadings and briefs filed in those Courts. See In Re Adoption of Supreme Court and Court of Appeals Rule 1-8. Courtesy Electronic Copies, 2013 Ark. 256. Note that this is in addition to the paper copies that are required by the Courts’ rules. This new rule will apply to all motions, petitions, writs, briefs, responses, and replies. See Ark. Sup. Ct. R. 1-8(a).

Filing of the PDF document by email is not permitted under Rule 1-8. Rather, appellate attorneys will be required to submit the PDF documents on external media (CD, flash drive, etc.) and will also be required to serve a copy on the other party.

It is important to note that compliance with Administrative Order 19 is still required with the PDF versions of documents that will be filed. Furthermore, a very specific file naming convention is mandated by the rule.

Rule 1-8 also requires that appellate attorneys include in the paper version of the documents filed a Certificate of Compliance and Identification of Paper Documents not in PDF Format.

Anyone filing documents in the Arkansas Supreme Court or Arkansas Court of Appeals beginning today will need to carefully review this new rules before doing so.

PRACTICAL TIP: If you do not already have software installed on your computer that will allow you to easily convert Word documents to PDF format, there is free software available for download at the following two sites (our firm currently uses the Cute PDF software, which works great):

Foxit Reader–http://www.foxitsoftware.com/Secure_PDF_Reader/
Cute PDF–http://www.cutepdf.com/

–Tasha Taylor

Ford Motor Company v. Washington (Ford III): The Third Time Is Not the Charm (and it ain’t over yet)

June 5, 2013March 12, 2014 ~ Andy Taylor ~ 2 Comments

Introduction

We have written two previous blog posts regarding this case: The first blog post discussed Ford Motor Co. v. Washington, 2012 Ark. 325 (“Ford I“), and the second blog post discussed Ford Motor Co. v. Washington, 2012 Ark. 354 (“Ford II“). In these two opinions, the Arkansas Supreme Court held that there was not a final order because a party that was orally dismissed by the Court was never dismissed in any written order. (Ford I was the original opinion, and Ford II was an opinion denying the petitions for rehearing.) In Ford Motor Co. v. Washington, 2013 Ark. 88 (“Ford III“), the Arkansas Supreme Court again held that there was no final order, this time for a completely different reason. A brief review of the factual and procedural history of this case is in order.

**Factual & Procedural History of the Ford Case**

The facts of the case are as follows: Mr. Johnny Ray Washington and his son were travelling in a 1994 Ford Explorer when Ms. Karah Allen Williams ran a stop sign, colliding with Mr. Washington’s Explorer. Ford I, 2012 Ark. 325, at 2. The Explorer flipped twice, killing Mr. Washington (his son survived). Id. Mr. Washington’s wife, Ms. Paulette Washington, sued (individually and as administratrix of Mr. Williams’s estate) the manufacturer of the vehicle, the dealership that sold the vehicle, and the driver who ran the stop sign (Ms. Williams). Id. Ms. Washington eventually settled with the driver, and an order was entered dismissing her. Id. Ms. Washington also nonsuited her claims against the dealership, and her attorneys announced the nonsuit to the trial court, but no written order was ever entered dismissing the dealership. Id.

At the conclusion of the trial, the jury returned verdicts based on special interrogatories. Ford III, 2013 Ark. 88, at 3-4. The jury found that Ford and Ms. Williams were both proximate causes of Mr. Williams’s death, and assigned 50% of the fault to each. Id. (Although Ms. Williams had been dismissed from the lawsuit, she was included on the verdict form for apportionment purposes.) Id. at 2. The jury awarded $4,652,125 in compensatory damages and $2,500,000 in punitive damages. Id. at 3-4. The trial court incorporated the special interrogatories into its judgment, and stated: “Therefore, judgment is awarded to the respective plaintiffs as set out above.” Id.

Ford appealed, asserting that the circuit court had erred by: (1) refusing to admit evidence that the plaintiff was not wearing a seatbelt; (2) refusing to hold that some of Ms. Williams’s claims were preempted by federal law; (3) refusing to grant JNOV with respect to the plaintiff’s punitive damages claim; and (4) refusing to reduce the compensatory damages by half. Ford I, 2012 Ark. 325, at 1.

In Ford I, the Court held that the judgment was not a final order because although the dealership had been orally dismissed from the case, no written order had ever been entered dismissing the dealership. Id. at 2. Both parties filed petitions for rehearing, arguing that language in the notices of appeal and cross-appeal (in which the parties had stated that they abandoned all pending but unresolved claims) made the order a final order. Ford II, 2012 Ark. 354, at 1. In Ford II, the Arkansas Supreme Court rejected this argument, holding that that language in the notice of appeal dismissed only claims and not parties. Id. at 1-2.

After the Court’s holdings in Ford I and Ford II, the case was remanded to the trial court so that a written order could be entered dismissing the party with whom the plaintiffs had settled (the dealership). Ford III, 2013 Ark. 88, at 4-5. Ford Motor Company appealed again, raising the same four points on appeal. Id. at 1-2.

**The Ford III Decision**

On appeal in Ford III, the Arkansas Supreme Court raised, sua sponte, the issue of finality. Id. at 5. The Court held that in order for a judgment to be final, “the amount of the judgment must be computed, as near as may be, in dollars and cents and . . . the judgment must specify clearly the relief granted or other determination of the action.” Id. (citing Thomas v. McElroy, 243 Ark. 465, 420 S.W.2d 530 (1967); Ark.Code Ann. § 16–65–103). The Court held that the problem with the judgment that had been entered by the circuit court was that it did not set forth a specific dollar amount owed by Ford. Id. at 6. The Court held that “[i]nstead, the circuit court merely reproduced the jury’s answers to the interrogatories and gave no further guidance.” Id. In support of its holding, the Arkansas Supreme Court noted that in Ford’s brief, Ford had requested that the Arkansas Supreme Court clarify the amount of money that it owed. Id. Because the Court held that the judgment did not constitute a final order, the Court dismissed the appeal without prejudice. Id.

The Ford III Dissent

This opinion is notable not just for its holding, but also for a rather vigorous dissent, written by Justice Hart. Id. at 7-8 (Hart, J., dissenting). The dissent seems to be based on two considerations. First, Justice Hart noted that the record in the case was “huge,” consisting of a 2,208-page abstract and a 1,201-page addendum. Id. at 7. She then noted that the Supreme Court had previously reviewed the same judgment, and had remanded the case for lack of a final order (for failure to dismiss a party by written order), but had not raised this particular finality issue until the case had been remanded and was back up on appeal. Id.

Second, the dissent argues that the judgment was, in fact, a final order. Id. at 7-8. The dissent noted that the jury interrogatories (and the judgment) set forth the exact amount of compensatory and punitive damages, and that the interrogatories then apportioned fault, with 50% of the fault attributed to the manufacturer, and 50% of the fault attributed to the driver. Id. at 7. The dissent then argues that “[i]t is simply not defensible to assert that this judgment is not final because this court does not deign to perform a simple arithmetical operation that is routinely taught in the second grade—division by two.” Id. at 7.

Practical Impact of Ford III

The practical impact of this decision is that an order or judgment involving money must state the exact amount owed, in dollars and cents. There can be no ambiguity. Although the judgment in Ford III did not specifically set forth a formula (it was implied that the compensatory damage award would be reduced by half because the jury had determined that Ford was only 50% responsible, but that was not explicitly stated in the judgment), the opinion in Ford III seems to imply that even a formula would not have been sufficient. Therefore, the safest route to obtain a final judgment is to ensure that any money judgment sets forth an exact amount owed, down to the penny.

Related Posts:

Andy Taylor

Abandonment Language in Notice of Appeal is Not Effective as to Stray Parties (Ford II)

November 12, 2012March 12, 2014 ~ Andy Taylor ~ 2 Comments

In Ford Motor Company v. Washington, 2012 Ark. 354 (“Ford II“), the Arkansas Supreme Court addressed whether a party’s statement in its notice of appeal that it abandons all pending but unresolved claims is effective as a dismissal against a stray party. Ford II is the Court’s opinion on a petition for rehearing, so before examining that case, we need to discuss the original case first.

We addressed the case of Ford Motor Company v. Washington, 2012 Ark. 325, (“Ford I“) in a previous blog post. As discussed in that post, the plaintiff in that case sued three parties: the driver of a vehicle, the manufacturer of the vehicle, and the dealership that sold the vehicle. The plaintiff settled with the driver, and an order was entered dismissing the driver with prejudice. The plaintiff moved for a voluntary nonsuit against the dealership, and the motion was granted orally, but no order was ever entered dismissing the dealership.

In Ford I, the plaintiff prevailed at the trial level against the manufacturer, but when the manufacturer appealed, the Arkansas Supreme Court refused to hear the appeal for lack of a final order. (Although not mentioned in Ford I, the Ford II opinion indicates that both parties filed notices of appeal/cross-appeal.) The Arkansas Supreme Court held that the nonsuit against the dealership was ineffective because there was no written order dismissing the dealership. In response to this decision, the plaintiff and the manufacturer-defendant jointly petitioned the Court for a rehearing, basing their argument on Searcy County Counsel for Ethical Gov’t v. Hinchey, 2011 Ark. 533.

In Hinchey, the plaintiffs alleged that the county judge had sold a piece of equipment to two buyers without following the statutory requirements for such a sale. The lawsuit named both the county judge and the buyers as defendants. The county judge filed a motion for summary judgment, which was granted. The plaintiffs appealed, but the Arkansas Supreme Court refused to hear the appeal because the circuit court’s order granting the county judge’s motion for summary judgment did not dismiss the complaint against the buyers.

In its opinion in Hinchey, the Arkansas Supreme Court observed that the plaintiff had failed to include a statement in its notice of appeal that it abandoned any pending but unresolved claim. Rule 3(e)(vi) of the Arkansas Rules of Appellate Procedure–Civil requires that this statement be included in all notices of appeal. The rule provides that such a statement in the notice of appeal “operate[s] as a dismissal with prejudice effective on the date that the otherwise final order or judgment appealed from was entered.”

The Reporter’s Notes to the amendment to the rule state the purpose as follows:

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.

In Hinchey, the Arkansas Supreme Court stated that if the plaintiff had included this statement in its notice of appeal, the statement “would have operated as a dismissal with prejudice of its claim against [the buyers],” meaning there would have been a final order and the court would have been able to hear the appeal.

With this background in mind, we now move back to a discussion of Ford II. In Ford II, the plaintiff had included the required abandonment language in its notice of cross-appeal. Therefore, both parties argued that the language operated as a dismissal of all of the plaintiff’s claims against the dealership.

The Arkansas Supreme Court disagreed. The Court noted that both the text of the rule itself and the Reporter’s Notes refer to unresolved and/or stray “claims,” but not “parties.” The Court also noted that the cases cited in the Reporter’s Notes addressed unresolved claims, and that none of those cases involved stray parties. Based on this, the Arkansas Supreme Court held that “[t]he Rule does not . . . allow an appealing party to dismiss a party from the action by such a statement in a notice of appeal or notice of cross-appeal.” The Court further held that “Rule 3 requires appellants and cross-appellants to abandon pending and unresolved claims, but it does not permit appellants and cross-appellants to dispose of parties in the same fashion.”

Finally, the Arkansas Supreme Court addressed its prior statement in Hinchey that seemed to indicate that such a statement in the notice of appeal would act as a dismissal of any stray parties. Rather than attempting to distinguish the two cases, the Court simply held that the “statement in Hinchey was merely dicta.”

The result of this decision is that even if an appealing party includes the abandonment language (from Rule 3(e)(vi) of the Arkansas Rules of Appellate Procedure–Civil) in its notice of appeal, stray parties must have been dismissed in writing in order for the order to be final. The abandonment language simply will not operate to dismiss stray parties from a lawsuit.

Related Posts:

–Andy Taylor

Oral Order Dismissing a Party Not Sufficient to Create Final Order (Ford I)

September 18, 2012March 12, 2014 ~ Andy Taylor ~ 3 Comments

The first round of decisions from the Arkansas Supreme Court for its 2012-13 term included a holding on a familiar issue concerning the finality of decisions. In Ford Motor Company v. Washington, 2012 Ark. 325, the Arkansas Supreme Court again reiterated that a written order is required in order for the voluntary nonsuiting of a party to be effective.

The case involved an automobile accident that involved a Ford Explorer and a Nissan Sentra. The driver of the Explorer was killed, and the passenger (the driver’s son) was injured. The plaintiff (the driver’s wife) sued individually, and on behalf of her son and her husband’s estate. The plaintiff filed claims against the manufacturer of the vehicle (Ford Motor Company) and the dealership that sold the vehicle (Freeway Ford Lincoln Mercury, Inc.) for negligence, strict liability, failure to warn, and breach of warranties. The plaintiff also filed a negligence claim against the driver of the Sentra (Karah Allen Williams).

The plaintiff eventually settled the claim against Ms. Williams. Then, at trial, the plaintiff moved to nonsuit her claims against Freeway. The trial court granted the motion orally, but the dismissal was never reduced to a written order.

At trial, the plaintiff prevailed on her claims against Ford and was awarded compensatory and punitive damages. Ford appealed, arguing that certain evidence had been improperly excluded, that certain claims were preempted by federal law, that the punitive damages award should be reversed, and that the compensatory damages should be reduced.

The Arkansas Supreme Court held that the order in the case was not a final order. Quoting from Arkansas Rule of Civil Procedure 41(a), the Court held that “[a] voluntary nonsuit is ‘effective only upon entry of a court order dismissing the action.'” Ford Motor Co., 2012 Ark. 325, at 2. Because there was no written order dismissing Freeway, the order in the case did not adjudicate all claims against all parties. Therefore, the order was not a final order, and the Arkansas Supreme Court dismissed the appeal without prejudice.

Related Posts:

–Andy Taylor

Rule 54(b)(5) and the Rule of Unintended Consequences: Yet Another Rule 54(b) Trap

June 15, 2011March 12, 2014 ~ Andy Taylor ~ 4 Comments

In 2008, Rule 54(b) of the Arkansas Rules of Civil Procedure was amended in an effort to resolve a finality problem that kept reoccurring. See Ark. R. Civ. P. 54(b), Addition to Reporter’s Notes, 2008 Amendments. The problem was that defendants (often “John Doe” defendants) would be added to a complaint, but then those defendants would never be served. See id. An order would be entered that would be considered by everyone to be final, and one party would then appeal. See id. However, because there were unserved defendants, the order would not be binding on those parties, and the Supreme Court or Court of Appeals would be forced to dismiss the appeal for lack of a final order. The purpose of Rule 54(b)(5) was to deal with this situation by providing that once a final order is entered, any claims against named but unserved defendants (including John Doe defendants) are dismissed. See Ark. R. Civ. P. 54(b)(5).

In Global Economic Resources, Inc. v. Swaminathan, 2011 Ark. App. 249, the Arkansas Court of Appeals introduced an interesting twist to the new rule. The case has a rather lengthy history, as is outlined below.

Trial Court

The case began as a breach of contract action by Global against Susindran Swaminathan and Venkataraman Melpakkam (referred to in the remainder of this blog post as the “Individuals”), doing business as Sabare SCM Solution, Inc. Id. at 1-2. After the answer was filed, Global filed an amended complaint dismissing the Individuals without prejudice, and adding Sabare SCM Solution, Inc., a Georgia corporation, as a separate defendant. Id. at 2. The trial court dismissed Sabare SCM with prejudice, holding that the court did not have personal jurisdiction. Id. Global appealed this order. Id.

First Appeal

Although the trial court had entered an order dismissing Sabara SCM, it had not entered an order in response to Global’s motion to dismiss the Individuals. Id. Therefore, the Court of Appeals dismissed the appeal for lack of a final order. Id.

Back to the Trial Court

After the dismissal of the first appeal, Global filed another amended complaint. Id. at 2-3. This complaint included as defendants the Individuals and Sabare SCM, and also added Ganesh Kumar and Sabare USA, Inc., as defendants. Id. On the same day, Global filed a motion to withdraw its earlier motion to dismiss the Individuals. Id. at 3. Sabare SCM and the Individuals again raised personal jurisdiction as a defense. Id. On March 11, 2010, the trial court entered an order dismissing Sabare SCM and Sabare USA for lack of personal jurisdiction. Id. In the same order, the trial court stated that it was granting Global’s earlier motion to dismiss the Individuals. Id.

After this order was entered, Global claimed to have served Sabare USA. Id. at 4. Sabare USA moved to quash, arguing that the court did not have personal jurisdiction. Id. In its response, Global asked that the motion to quash be denied, and also argued that the order dismissing the Individuals was improper because there was no motion to dismiss pending at the time (because Global had withdrawn its motion to dismiss). Id.

On September 30, 2010, the trial court entered an amended order reaffirming the conclusions in its March 11, 2010 order. Id. at 4-5. Six days later, on October 6, 2010, the trial court entered an “amended amended order,” correcting an error not relevant to the subject matter of this blog post. Id. at 5. On October 25, 2010, Global filed a notice of appeal.

The Second Appeal

On appeal, the Court of Appeals dismissed the appeal, holding that the notice of appeal was not timely filed. Id. at 5-7. The problem was that after the trial court dismissed the Individuals and Sabare SCM on March 11, 2010, only Sabare USA and Gamesh Kumar remained as parties. Id. Even though Sabare USA was served approximately two weeks after the March 11 order was entered, it had not been served prior to entry of that order (presumably Gamesh Kumar was never served). Id. at 4, 6. Therefore, these two parties were “named but unserved defendant[s]” pursuant to Rule 54(b)(5), meaning that any claims against them were dismissed at the time the claims against the served parties were dismissed. Id. at 6. As a result, the March 11, 2010 order was considered the final order for purposes of the notice of appeal, meaning that the October 25, 2010 notice of appeal was not timely filed. Id.

Conclusion

As mentioned above, the intent of Rule 54(b)(5) was to correct previous outcomes that “waste[d] litigants’ time and money and scarce judicial resources.” Ark. R. Civ. P. 54 Addition to Reporter’s Notes, 2008 Amendments. The rule was meant to resolve the problem created when “a forgotten defendant[s] . . . presence destroys the finality of the judgment being appealed.” Id. In this case, however, the unserved defendant actually created finality when none was intended, and the result was that the appeal was dismissed with the merits of the case never being addressed by the appellate court.

–Andy Taylor

Ten Tips to Remember When Filing Your Next Notice of Appeal

May 19, 2011August 24, 2013 ~ Tasha C. Taylor ~ 3 Comments

Appellate attorneys suggest that you start thinking about the appeal of your client’s case from the moment you file the initial pleading. The reality is that a lot of lawyers don’t start thinking about the appeal until they are drafting the notice of appeal. If that’s you, then these ten tips are meant to help when you’re preparing your next notice of appeal. Although not an exhaustive list of the steps necessary to properly file a notice of appeal, these ten tips will help you jump-start your review of some of the relevant rules.

The notice of appeal must be filed within 30 days of the date the judgment from which you are appealing is entered, and not the date from which it was signed. See Ark. R. App. P.–Civil 4(a).
If the notice of appeal is filed after the circuit court announces its decision, but prior to the entry of the final judgment, your notice of appeal will be treated as though it was filed on the day after the judgment is entered. See Ark. R. App. P.–Civil 4(a).
Effective July 1, 2010, the notice of appeal is required to state, among other things, that “the appealing party abandons any pending but unresolved claim.” Ark. R. App. P.–Civil 3(e)(vi); see also Ark. R. Civ. P. 54(b); see also The Rule 54(b) Trap: Dealing with Non-final Orders in Cases with Multiple Claims or Multiple Parties.
The notice of appeal must designate the specific judgment or judgments from which the appealing party is appealing. See Ark. R. App. P.–Civil 3(e)(ii); see also, e.g., Hall v. Arkansas Dept. of Human Services, 101 Ark. App. 417, 278 S.W.3d 609 (2008) (holding that orders not mentioned in the notice of appeal are not properly before the appellate court).
You must contact the Court Reporter to make financial arrangements to pay for the transcript prior to stating that you have done so in the notice of appeal—and, it’s a good idea to follow up with a letter or email acknowledging that you have done so. See Ark. R. App. P–Civil 3(e)(iv).
The notice of appeal can state that you are appealing directly to the Arkansas Supreme Court, but only in appropriate cases. See Ark. R. App. P–Civil 3(e)(v); see also Ark. Sup. Ct. R. 1-2(a).
You are required to serve a copy of the notice of appeal or notice of cross-appeal upon counsel for all other parties by a form of mail that requires a signed receipt (and not by regular first class mail). Don’t forget to change your certificate of service to indicate that you have complied with this rule. See Ark. R. App. P.–Civil 3(f).
If the appellant does not designate the entire record and all the proceedings and evidence in his case, then, in addition to the notice of appeal and designation of record, he is required to also serve a concise statement of the points on which he intends to rely on the appeal. See Ark. R. App. P.–Civil 3(g).
The timely filing of a notice of appeal is jurisdictional; thus, the appellate court is required to raise the issue of subject-matter jurisdiction on its own motion. See, e.g., Stacks v. Marks, 354 Ark. 594, 127 S.W.3d 483 (2003) (appeal dismissed where the Court determined on its own motion that the notice of appeal was untimely).
Notices of appeal in the context of post-judgment motions can be tricky, tricky, tricky. There is no one rule or tip to summarize the variety of problems that can arise when trying to properly file a notice of appeal in the context of post-judgment motions. If you plan to file any post-judgment motions in your client’s case, don’t do so before you carefully study the rules and case law with respect to how those motions can affect the deadlines for properly filing the notice of appeal.

Originally published in the Volume 15, Issue #2 of the Arkansas Bar Association’s Young Lawyers Section newsletter, In Brief, available at the following link: http://issuu.com/arkansas_bar_association/docs/inbrief_spring11?mode=embed&layout=http%3A%2F%2Fskin.issuu.com%2Fv%2Flight%2Flayout.xml&showFlipBtn=true. Republished here with permission.

–Tasha Taylor

Amendment to Ark. Sup. Ct. R. 4-2(b) Gives Appellate Court Option to Avoid Rebriefing When Appellant’s Abstract or Addendum is Deficient

May 6, 2011August 24, 2013 ~ Tasha C. Taylor

The Arkansas Supreme Court recently amended Arkansas Supreme Court Rule 4-2, which governs contents of briefs on appeal, to give appellate courts an additional option concerning how those courts may handle deficiencies in the appellant’s abstract or addendum. See In Re 4-2(b) of the Rules of the Supreme Court and Court of Appeals, 2011 Ark. 141. With the recent amendment to Rule 4-2(b), when the Arkansas Supreme Court or the Arkansas Court of Appeals determines that deficiencies in an appellant’s abstract or addendum need to be corrected, but rebriefing is not necessary, the court may order the appellant to file a supplemental abstract or addendum. If an appellate court allows a supplemental abstract or addendum to be filed, that must be done within 7 calendar days. This amendment to Rule 4-2(b) became effective March 31, 2011. See In Re 4-2(b) of the Rules of the Supreme Court and Court of Appeals, 2011 Ark. 141

It appears that this amendment to Rule 4-2(b) will have the effect of allowing the appellate courts, in their discretion, to more quickly and efficiently obtain information that was missing from the appellant’s abstract or addendum rather than always requiring rebriefing in those situations. Where an appellant’s abstract or addendum is deficient or where important documents were omitted, that appellant (or his or her attorney) will save the additional cost of reprinting the entire brief in cases where the appellate court determines that rebriefing is not necessary.

The Arkansas Supreme Court’s amendment to Rule 4-2(b) reads as follows:

(b) Insufficiency of appellant’s abstract or addendum. Motions to dismiss the appeal for insufficiency of appellant’s abstract or addendum will not be recognized. Deficiencies in the appellant’s abstract or addendum will ordinarily come to the court’s attention and be handled in one of four ways as follows:

. . .

(4) If the appellate court determines that deficiencies or omissions in the abstract or addendum need to be corrected, but complete rebriefing is not needed, then the court will order the appellant to file a supplemental abstract or addendum within seven calendar days to provide the additional materials from the record to the members of the appellate court.Ark

Ark. Sup. Ct. R. 4-2(b)(4).

–Tasha Taylor

Proposed Changes to Arkansas Appellate Court Rules Affecting Civil Practice

March 8, 2011August 24, 2013 ~ Tasha C. Taylor

The Arkansas Supreme Court delivered a per curiam opinion on March 3, 2011, in which the Court announced proposed changes to rules of procedure affecting civil practice. See In Re Arkansas Rules of Civil Procedure and Rules of the Supreme Court and Court of Appeals, 2011 Ark. 99.

The following rule changes to the Arkansas Rules of the Supreme Court and Court of Appeals were proposed by the Arkansas Supreme Court Committee on Civil Practice and are being suggested by the Arkansas Supreme Court:

Rule 2-1. Motions, general rules—The change would require that motions filed in the appellate courts comply with the style of appellate court briefs. Currently the rules governing the style of briefs are more specific than the rules governing the styles of motions. Based on this rule change, motions would be required to be in 14-point font, among other things.
Rule 4-1. Style of briefs—This change would increase the page numbers in the Appellant’s reply brief from 15 to 20 pages. When the Court previously changed Rule 4-1 to require 14-point font to be used in briefs filed in appellate courts, the number of pages for the appellant’s brief and the appellee’s brief was increased by 5 pages. This rule change would also add an additional 5 pages to the reply brief.
Rule 4-2. Contents of briefs—The statement of the case would increase from a maximum of 5 to a maximum of 6 pages. This change is also in response to the previous increase in the font size of appellate court briefs from 12 to 14 point font.
Rule 6-7. Taxation of costs—This change would increase the total costs for the filing fee that is recoverable by the prevailing party to $165. This change would reflect the actual cost of filing an appeal in the appellate courts (to include the addition of the $15 technology fee that was previously added to each filing fee).
Rule 6-9. Rules for appeals in dependency-neglect cases—This amendment would add a motion to intervene in dependency-neglect proceedings to the list of appealable orders under the expedited appeal procedure of Rule 6-9.

If you wish to comment on these proposed rule changes, make your comments in writing before May 1, 2011, to: Leslie W. Steen, Clerk, Supreme Court of Arkansas, Attn.: Civil Procedure Rules, Justice Building, 625 Marshall Street, Little Rock, Arkansas 72201.

–Tasha Taylor

Judge Posner, the Blue Book, and Arkansas Citation Resources

February 22, 2011August 24, 2013 ~ Andy Taylor

Judge Richard Posner, of the U.S. Court of Appeals for the Seventh Circuit, created quite a stir lately with his law review article in the Yale Law Journal, in which he criticized the Blue Book’s citation format. Though his article criticizes many aspects of the Blue Book (its size, for example), he is particularly critical of its system of abbreviation:

An example that I have picked literally at random is “C.Ag.” What does “C.Ag.” stand for? Why, of course, the Código de Águas of Brazil. Now suppose one had occasion to cite the Código de Águas. Why would one want to abbreviate it? The abbreviation would be meaningless to someone who was not a Brazilian lawyer, and perhaps to Brazilian lawyers as well (but do they abbreviate Código de Águas “C.Ag”?). The basic rule of abbreviating, ignored by the authors of The Bluebook, is to avoid nonobvious abbreviations: don’t make the reader puzzle over an abbreviation, as The Bluebook does routinely. Consider “Temp. Envtl. L. & Tech. J.,” “ILSA J. Int’l & Comp. L.,” “Emp. Rts. & Emp. Pol’y J.,” and “AIPLA Q.J.” These are names of journals. Now try figuring out “B.T.A.M. (P-H),” “A. Ct. Crim. App.,” “A.F. Ct. Crim. App.,” “C.G. Ct. Crim. App.,” “N-M Ct. Crim. App.,” “Ne. Reg’l Parole Comm’n,” and “Cent. Ill. Pub. Serv. Co.” What is the point? It’s as if there were a heavy tax on letters, making it costly to write out Coast Guard Court of Criminal Appeals instead of abbreviating it “C.G. Ct. Crim. App.”

Judge Posner is so dissatisfied with The Bluebook that he has drafted his own citation manual, which is used by the clerks who assist him in drafting his opinions. The manual is approximately three pages long (or, in Judge Posner’s words, “one one-hundredth the length of The Bluebook”).

While Arkansas appellate attorneys might not want to rely on Judge Posner’s 3-page manual when drafting appellate briefs in Arkansas, there are resources available to Arkansas attorneys (in addition to the Blue Book) that can assist with proper citation in appellate court briefs. The website of the Arkansas Reporter of Decisions provides several of these resources:

The House Style Guide–One of the most helpful resources provided by the Reporter of Decisions is the House Style Guide, which is the style guide used by the Arkansas appellate court judges and their law clerks when drafting opinions. The House Style Guide provides information on Arkansas citations as well as punctuation, word usage, possessives, and other grammar and stylistic conventions used by Arkansas’s appellate courts.
Citations Guidelines–For a brief overview of citations to opinions of the Arkansas Supreme Court and Arkansas Court of Appeals, the Citations Guidelines page is also helpful.
Citations Page–the Citations Page provides more detailed citation examples, including examples of citations to opinions of appellate courts of all 50 states, along with various rules, law reviews, and other materials.

For more information about how use the new citation format in Arkansas pursuant to Arkansas Supreme Court Rule 5-2(d)(2), check out our previous blog post on the topic, Using Arkansas’s New Citation Format.

If you want even more information about using citations in Arkansas trial court and appellate court briefs, the UALR William H. Bowen School of Law will be hosting a free CLE on Monday, March 7 at 11:30. The CLE, entitled Citation Insights: The Bluebook, the ALWD Citation Manual, and the Arkansas Supreme Court’s Citation Rules and Practices, will be presented by Professor Coleen Barger. Attorneys who attend can receive 1 hour of CLE credit. There is no charge for the CLE, but there is a $5 charge for lunch. If you plan to attend, please email Haley Walker at hewalker@ualr.edu.

–Andy Taylor

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