Category: Arkansas Supreme Court

Temporary Custody Orders Not Appealable (And a Note of Caution)

~ Andy Taylor

Strother v. Strother

In Strother v. Strother, 2015 Ark. App. 196, the Arkansas Court of Appeals recently held that a decree that “does not contain a final award of custody” is not an appealable order.  A review of Strother, along with several other cases on this topic, reveals that the line between a final custody order and a temporary custody order is not always clear, so attorneys should be cautious before choosing not to appeal from what might appear to be a temporary custody order.

In Strother, the dad and mom had married in 2001, and the mom had filed for divorce in 2013.  In her complaint for divorce, the mom sought joint legal custody, with her having primary physical custody.  The court appointed an attorney ad litem, and eventually held a hearing “on the divorce and custody issues.”  The court then issued a letter opinion in which it granted the couple joint legal custody, and granted the mom primary physical custody.

With respect to custody issues, the circuit court’s order stated as follows:

[T]his court finds that the aforesaid orders of this court in regards [to] custody and other issues concerning the aforesaid two (2) minor children are temporary in nature; that an attorney ad litem will be appointed to represent the aforesaid two (2) minor children; that Defendant shall be solely responsible for payment of all attorney fees and expenses which will [be] owed to the attorney ad litem; and that issues concerning permanent orders in regard [to] custody and other issues concerning the aforesaid two (2) minor children will be determined in the future by agreement of the parties or by order of the court.

The Court of Appeals in this case examined whether this was an appealable order.  Rule 2(d) of the Arkansas Rules of Appellate Procedure–Civil provides that “[a]ll final orders awarding custody are final appealable orders.”  In other words, even if an order granting divorce isn’t otherwise considered a final order, if the order is final with respect to custody, then it will be final for purposes of appealing the custody determination.

In Strother, the Court of Appeals held that the order was not a “final order[] awarding custody.”  The Court of Appeals noted that “the order specifically states that issues of custody ‘are temporary in nature’ and that ‘issues concerning permanent orders in regard [to] custody . . . will be determined in the future.'”  Therefore, the Court of Appeals dismissed the appeal until a final custody award is entered.

In its opinion in Strother, the Court of Appeals cited to an Arkansas Supreme Court case, Gilbert v. Moore, 364 Ark. 127, 216 S.W.3d 583 (2005).  In that case, the trial court had entered an emergency ex parte order granting temporary custody of the couple’s child to the father.  Four days later, the trial court held a short hearing and ordered the custody of the child remain with the father, and that the mother was to receive weekend visitation.  The trial court stated from the bench:

I signed an Ex Parte Order a few days ago which placed the temporary custody in the Plaintiff, the father. I really don’t know where this child is better off long term. I guess that’s something that is going to have to be resolved at a later date. I presume both of these parties want long term custody of this child. I may or may not be right about that. In the meantime I’m going to leave the Ex Parte Order in effect; however, the child shall spend each weekend with his mother beginning 6:00 p.m. on Friday and ending on 6:00 p.m. on Sunday. And when counsel and the parties are ready for this case to be heard in its entirety on its merits thoroughly by myself or somebody, probably somebody else, and hopefully make the right decision on where this child should grow up, then that’s what will happen.

The trial court went on to state from the bench that the order would be “on a temporary basis the child should stay with the father during the week and the mother during the weekends until this case can be resolved on its merits.”  The order itself was not quite as specific as to the temporary nature of the order, but did state that custody would remain with the father “at this time.”

In Gilbert, the Arkansas Supreme Court held that the custody order was a temporary order and therefore not appealable.  This, however, is where the note of caution comes in.  The Arkansas Supreme Court held that “[w]hether a custody order is final or temporary is not dependent upon the style of the order,” and that “custody orders styled as temporary may be nonetheless final for purposes of appeal if the issue of custody was decided on the merits and the parties have completed their proof.”  In Gilbert, the basis of the holding appears to have been that “the issue of custody ha[d] yet to be determined on its merits and . . . the parties ha[d] not completed their proof on the issue.”

This seems to be consistent with previous cases cited by the Arkansas Supreme Court in Gilbert.  Although those cases predate the addition of “final orders awarding custody” to the list of appealable orders (that amendment was adopted in 1999), the holdings are still informative.  In those three cases, the key issue seems to whether there has been a final hearing on the merits.  In Sandlin v. Sandlin, for example, the Arkansas Supreme Court held that the order in that case was not appealable because “the main issue, that of custody,” had not been decided. 290 Ark. 366, 719 S.W.2d 433 (1986).  The Arkansas Supreme Court noted that it had previously held that “there can be no appeal . . . until the proof has been completed and the order entered.” Similarly, in Jones v. Jones, the Arkansas Court of Appeals held that a custody order “is final for purposes of appeal if the the issue of custody was decided on the merits and the parties have completed their proof.” 41 Ark. App. 146, 852 S.W.2d 325 (1993).

In Chancellor v. Chancellor, 282 Ark. 227, 667 S.W.2d 950 (1984), the Arkansas Supreme Court held, based on the following, that the custody order was not final:

The record reflects that appellant has not yet completed her proof. The order in the present case did not terminate any cause or right, dismiss any party from the action or conclude their rights. By its very terms it is a temporary order. The court ordered an investigation of the respective homes and ordered that a report be made to the court. It is obvious the court did not intend to take final action on this matter based solely upon the fact that the mother may be living in adultery.

This brings us back to Strother.  In that case, it appears that there had, in fact, been a hearing on the merits.  The order, however, appears to have left custody open until an attorney ad litem could be appointed and could report back to the court.  In that sense, the issue of custody was still open.

The Takeaway

Based on these cases, attorneys should never assume that a custody order is temporary based solely on the fact that the order is styled as a “temporary” order. These cases make clear that there’s more to the analysis than simply what the order is styled.  Sometimes, it might not be entirely clear to counsel whether or not a custody order constitutes a “final order[] awarding custody.”  In those situations, the best course of action is probably to file a notice of appeal as a precaution.  Otherwise, the attorney risks allowing what appears to be a temporary order become a permanent, nonappealable order.

Today’s Investiture Results in Arkansas’s First Majority Female Supreme Court

~ Tasha C. Taylor

Arkansas Supreme Court An investiture ceremony is being held at the Arkansas Supreme Court today at 1:00 p.m. for the swearing in of three justices: Arkansas Supreme Court Justice Karen Baker, Arkansas Court of Appeals Judge Rhonda Wood, and Arkansas Court of Appeals Judge Robin Wynne.

Supreme Court Justice Karen Baker was originally elected to the Arkansas Supreme Court in 2010. She was re-elected last May to serve an eight-year term on that Court.

Court of Appeals Judge Rhonda Wood was elected to Position 7 on the Arkansas Supreme Court in May of 2014.  Judge Wood replaces Justice Hoofman, who was appointed to fill that position with the retirement of Justice Robert L. Brown at the end of 2012.  Justice Hoofman will, in turn, fill the vacancy left by Judge Wood on the Arkansas Court of Appeals.

Court of Appeals Judge Robin Wynne was elected to Position 2 on the Arkansas Supreme Court in May of 2014.  Judge Wynne will replace Justice Donald Corbin, who has held that position since 1990.  Governor Beebe has appointed Mike Kinard of Magnolia to replace Judge Wynne on the Arkansas Court of Appeals.

As we’ve previously discussed, the addition of Judge Rhonda Wood to the Arkansas Supreme Court will result in Arkansas being one of only a few states with a female majority court of last resort, which is a first for Arkansas as well.

Were Your Arguments Made in Chambers Preserved for Appeal?

~ Andy Taylor

Arkansas Realtors Association v. Real Forms, LLC

Any attorney who has spent much time practicing in court knows that many arguments and rulings are made in chambers (and off the record).  The question, then, is how to preserve arguments made in chambers.  The Arkansas Supreme Court’s recent decision in Arkansas Realtors Association v. Real Forms, LLC provides some guidance. 2014 Ark. 385.  Although the opinion does not include a definitive method to preserve such arguments, the takeaway is that attorneys must find a way to make the argument on the record.

The facts of Arkansas Realtors Association are a bit complicated and have been simplified for purposes of this blog post.  In sum, the Arkansas Realtors Association (“ARA”) had been in a long-term contract with Robert Bodily to create desktop software that allowed ARA members to draft contracts electronically.  The ARA later entered into a contract with Real Forms, LLC (technically, it was a predecessor company) to create an online version of the software.  The two programs were apparently not compatible, so the ARA ultimately entered into a contract with Real Forms, LLC (“Real Forms”) to create both a desktop version and an online version of the software.

A number of disputes arose between the ARA and Real Forms, including disputes about the time of delivery, whether the software met the ARA’s needs, and regarding the fact that Real Forms had not obtained errors & omissions (E & O) insurance as required by the contract.  The ARA ultimately sent a notice of termination to Real Forms.  Real Forms sued the ARA, and the ARA filed a counterclaim.  The jury ultimately returned a verdict in favor of Real Forms for $150,000.

The ARA raised several points in its appeal, but for purposes of this blog post, the relevant point that was raised related to the ARA’s motions in limine.  Prior to trial, Real Forms filed two motions in limine (one to exclude lay-witness opinion testimony regarding whether the software was flawed, and another to exclude evidence of insurance), and the ARA filed three motions in limine (one to exclude evidence of Bodily’s contract with the ARA, one to exclude the interpretation of contract terms by a software development expert witness, and one to exclude evidence of the number of hours worked by the owners of Real Form.

On the first day of trial, the court held an off-the-record hearing in chambers regarding the motions in limine.  After returning from chambers, the court ruled on-the-record regarding the insurance motion in limine, but did not make any reference to any of the four remaining motions in limine at that time.

On appeal, the ARA argued that the circuit court had erred by not making a record prior to trial regarding the motions in limine.  The ARA relied on Administrative Order No. 4, which provides that, “[u]nless waived on the record by the parties, it shall be the duty of any circuit court to require that a verbatim record be made of all proceedings . . . pertaining to any contested matter before the court or the jury.”  The Arkansas Supreme Court has previously held that this rule is “mandatory,” and that a party’s silence on this issue does not constitute an implied waiver of this requirement. Thompson v. Guthrie, 373 Ark. 443, 447, 284 S.W.3d 455, 457 (2008), George v. State, 356 Ark. 345, 151 S.W.3d 770 (2004).  The Arkansas Supreme Court has also held, however, that the burden of bringing up a record sufficient to demonstrate error rests with the appellant. Hankins v. Dep’t of Fin. & Admin., 330 Ark. 492, 954 S.W.2d 259 (1997).

In this case, the Arkansas Supreme Court rejected the ARA’s argument that the case should be remanded to complete the record, holding that the ARA had not been prejudiced by the off-the-record discussion.  In reaching its conclusion, the Arkansas Supreme Court looked at each of the ARA’s three motions in limine individually.  With respect to the first motion in limine (to exclude evidence of Bodily’s contract with the ARA), there had been a sidebar (apparently on the record) regarding the Bodily contract and what counsel could and could not ask during testimony regarding that contract.  With respect to the second motion in limine (to exclude testimony from the software expert regarding contract terms), the circuit court had actually sustained the ARA’s objection to such testimony during that expert’s testimony.  With respect to the third motion in limine (to exclude the number of hours worked by the owners of the company), the ARA had never objected during trial when testimony was given on this point.

Based on this sequence of events, the Arkansas Supreme Court held that “given these specific circumstances, we adhere to our rule that Appellant was required to bring a record sufficient to demonstrate error, and we cannot say that Appellant was prejudiced by the circuit court’s failure to follow Administrative Order No. 4.”

The Takeaway

There are a few points worth making in light of this opinion.  First, off-the-record discussions are quite commonplace, so the question is how to preserve the issue.  In light of this opinion, it appears that even if a motion in limine has been filed and denied, counsel must object on-the-record once the evidence sought to be excluded is admitted.  Although there would appear to be instances in which the Arkansas Supreme Court might remand a case to require the record to be completed in similar circumstances (the Arkansas Supreme Court appears to have limited the holding in this case to “these specific circumstances”), if the issue is important enough, an on-the-record objection is vital to preserving the issue.  That leads to the second point, which is that this decision to object has to be balanced against the negatives of objecting (namely, irritating the jury).  In this case, it appears that counsel did not consider the testimony in question to be vital to the case (this particular point was the fourth of four points on appeal in the ARA’s brief, and took up about 2 of the brief’s 30 pages).  Therefore, the decision not to object was quite possibly a strategic decision in this five-day jury trial.  If, however, a ruling in chambers is more important to a case, counsel should make every effort to make an objection on the record and to obtain a ruling on the record.

Arbitration Clauses Not Enforceable in Arkansas State Courts Where There is No Mutuality of Obligation

~ Tasha C. Taylor

The Arkansas Supreme Court began its fall 2014 term with two decisions rendering arbitration clauses unenforceable in Arkansas state courts where such clauses contain no mutuality of obligation.

Regional Care of Jacksonville, LLC v. Henry

Arbitration Clause

On September 11, 2014, the Arkansas Supreme Court affirmed the Pulaski County Circuit Court’s decision to deny a nursing-home facility’s motion to compel arbitration due to the absence of mutuality of obligation in the nursing-home facility’s admission agreement. See Regional Care of Jacksonville, LLC v. Henry, 2014 Ark. 361.  In Regional Care of Jacksonville, LLC, the nursing-home facility’s admission agreements contained arbitration clauses that excluded from the requirement of arbitration “a dispute over billing or collecting for services.” Id. at 3.

The Arkansas Supreme Court noted that to have mutuality of contract, “an obligation must rest on each party to do or permit to be done something in consideration of the act or promise of the other; that is, neither party is bound unless both are bound.” Id. at 7.  The Court also observed that “[t]here is no mutuality of obligation where one party uses an arbitration agreement to shield itself from litigation, while reserving to itself the ability to pursue relief through the court system.” Id.

The Court found that the nursing-home facility’s arbitration clause lacked mutuality of obligation because it reserved the right to litigate billing or collection disputes, thereby excluding from arbitration the only likely claim it might have against a resident while strictly limiting the residents to arbitration.  Because the arbitration clause imposed no real obligation on the nursing-home facility to arbitrate its own claims, the Arkansas Supreme Court held that the arbitration clause could not be enforced.

Alltel Corporation and Alltel Communications, Inc. v. Rosenow

The following week, on September 18, 2014, the Court handed down a 4-3 decision in Alltel Corp. v. Rosenow, 2014 Ark. 375.  The majority opinion in that case determined that Alltel’s arbitration agreement was not enforceable because it lacked mutuality of obligation.

The Court’s decision was not based on the language found in the arbitration clause itself, but on the language found in another provision in the same contract that read, “[I]f we do not enforce any right or remedy available under this Agreement, that failure is not a waiver.” Rosenow, 2014 Ark. 375, at  8.  According to the majority opinion, that contract provision meant that Alltel was clearly reserving for itself “the option of pursuing remedies other than arbitration, without the consequence of waiver.” Id.  The Court noted that Alltel had reserved for itself a protection that was not extended to the customer:

Succinctly put, Alltel provided itself with an “out” to the required arbitration; Alltel customers, such as Rosenow, however, were limited to pursuing relief against Alltel in the form of arbitration, while Alltel alone was provided absolution if it chose to pursue an alternate remedy.

Id.

Justice Goodson wrote the dissenting opinion, joined by Justices Baker and Hoofman.  Among other things, the dissenting Justices took issue with the basis for the majority’s ruling on the mutuality of obligation issue.  According to the dissent, “the majority affirms the circuit court’s ruling on mutuality of obligation for a reason that the parties have not developed and on which the circuit court has not ruled.” Id. at 15.  The dissenting opinion explained that Rosenow had argued that the lack of mutuality of obligation existed because of Alltel’s past actions of utilizing the services of collection agencies and filing lawsuits against customers to collect on delinquent accounts.  According to the dissenting opinion, the circuit court had determined that Alltel’s arbitration agreement “imposed no real liability on Alltel because Alltel had previously ignored it.”

The dissent claims that “the majority has reached well beyond the limited issue presented on appeal, which is based on Alltel’s conduct and not a specific provision within the contract.” Id. at 16.

The majority’s response is included in the following footnote:

While the dissent takes issue with our decision in this matter using the analysis that we do, the question presented to this court is whether the circuit court erred in finding a lack of mutuality of obligation. The issue of mutuality of obligation was raised to, and ruled on by, the circuit court. Although we have reached the same result as the circuit court in a different manner, the result, conclusion, or decision is the same—mutuality of obligation is lacking. Had we determined that any other element required for a valid contract was not present, then we would have contravened our precedent. But, to be clear, we have in no way raised an issue sua sponte, because the mutuality-of-obligation issue is squarely before us.

Id. at 9 n.5.

The Takeaway

Following these recent decisions, parties should expect any questionable arbitration clause to be contested in litigation in an Arkansas state court.  Although the Federal Arbitration Act (FAA) might be applicable, it is state contract law that ultimately decides whether an arbitration clause will be enforced in state court.  These recent decisions indicate that the Arkansas Supreme Court will be hesitant to allow an arbitration clause to be enforced where there is no mutuality of obligation.  Under Arkansas contract law, arbitration clauses either bind both parties or neither party is bound to such an agreement.  Although there was some dispute among the members of the Court as to how the Rosenow case should have been decided, it seems fairly certain that where an arbitration clause is clearly one-sided (thereby imposing no real obligation to arbitrate on one party to the agreement, as was the case in Regional Care of Jacksonville, LLC) the Court seems to be in agreement that such an arbitration clause will not be enforceable.

Be aware that a similar argument will not fly in an Arkansas federal court. See Enderlin v. XM Satellite Radio Holdings, Inc., No. 4:06-CV-0032 GTE, 2008 WL 830262, at *10 (E.D. Ark. Mar. 25, 2008) (holding that “Arkansas law requiring mutuality within the arbitration paragraph itself is preempted by the FAA because it places the arbitration clause on unequal footing with other contract terms that do not each have to be mutual.”); see also Southeastern Stud & Components, Inc. v. American Eagle Design Build Studios, LLC, 588 F.3d 963 (8th Cir. 2009).  In Regional Care of Jacksonville, LLC, The Arkansas Supreme Court acknowledged these federal decisions and expressed its disagreement with them. 2014 Ark. 361, at 11-12 n.7.

Further Reading

If you’re interested in reading more on this topic, I recommend the following law review article:  Katherine B. Church, Arkansas and Mandatory Arbitration: Is the Feeling Really Mutual?, 65 Ark. L. Rev. 343 (2012).

Arkansas Supreme Court’s Procedural Ruling Has Practical Effect of Temporarily Stopping Same-Sex Marriages in Arkansas

~ Tasha C. Taylor

Arkansas Supreme CourtLack of Final Order Prevents Arkansas Supreme Court from Issuing a Stay of Pulaski County Circuit Court’s Ruling in Same-Sex Marriage Case

The Arkansas Supreme Court handed down a decision late this afternoon dismissing without prejudice the appeal taken by the State from the Pulaski County Circuit Court’s recent decision declaring Arkansas’s ban on same-sex marriage unconstitutional.

According to the per curiam decision, the circuit court’s order was not final because it failed to adjudicate all the claims or to otherwise include a Rule 54(b) certificate, which would allow an interlocutory appeal from an otherwise non-final order.

Arkansas Supreme Court Essentially Holds That a Stay is Unnecessary Because There is No Order Striking Down Licensing Statute

The Arkansas Supreme Court also denied the State’s plea for the Court to help alleviate confusion among circuit clerks by granting a stay pursuant to the Supreme Court’s superintending authority.  The Court noted that because the circuit court had not issued a ruling with respect to Arkansas Code Annotated Section 9-11-208(b) (Repl. 2009), “License not issued to persons of the same sex,” the circuit court’s order had no effect on that statute and its prohibition against circuit and county clerks issuing same-sex marriage licenses.

Although the Pulaski County Circuit Court’s decision struck down as unconstitutional two state statutes that ban marriages by people of the same sex (Arkansas Code Annotated Sections 9-11-107, “Validity of foreign marriages” and 9-11-109, “Same sex marriage void”), it failed to rule on Arkansas Code Annotated Section 9-11-208(a)(1)(B), which provides, “A license shall not be issued to a person to marry another person of the same sex, and no same-sex marriage shall be recognized as entitled to the benefits of marriage.”  It appears that this means that that statute is still in effect, so the practical effect of this ruling appears to be that circuit clerks are prohibited from issuing licenses to same-sex couples until the circuit court clarifies its ruling.

The Court’s full decision is available here: Arkansas Supreme Court Same-Sex Marriage Decision.

Arkansas Supreme Court Releases Election Decisions

~ Andy Taylor

Two big decisions from the Arkansas Supreme Court today (actually several, but four of them are about the same issue).  We will update the blog with more information later, but summaries of the decisions follow.  We’re getting these out quickly, so please let us know if you read the opinions and have a different understanding.

Supreme Court Holds Candidates for Judicial Office not Disqualified for Delinquency in Paying Dues

The Supreme Court held that (1) a suspension for failure to pay dues is not the same as not having a license; and (2) that suspending an attorney without notice is a violation of Due Process.  Justice Hart wrote separately, concurring in part and dissenting in part.  She agreed with point 1, which she argued made point 2 moot.  Justice Corbin dissented on both points, and would have held that a delinquency makes a candidate ineligible.

Here are PDFs of the opinions:

CV-14-367 Fox

CV-14-358 Bailey

CV-14-370 Byrd

CV-14-369 Foster

Supreme Court Allows Voter ID Law to Remain in Place (For Now); Strikes Down Rules Relating to Absentee Voters

On what appear to be procedural grounds, the Arkansas Supreme Court struck down a circuit court opinion holding that Arkansas’s voter ID law was unconstitutional.  The Court held that the constitutionality of the statute was not properly before the Circuit Court.  Presumably, this leaves open the question of whether the law could be attacked in the future.  The Arkansas Supreme Court also held that the Arkansas State Board of Election Commissioners had acted outside the scope of its authority when it promulgated rules allowing for provisional ballots for absentee ballots, where the statute did not expressly allow for such a rule.

Here is a PDF of the opinion:

CV-14-371 Voter ID

 

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The Rule 54(b) Certificate Requirement of “Specific Factual Findings”: Billingsley v. Benton NWA Properties, LLC

~ Andy Taylor

Arkansas Rule of Civil Procedure 54(b)As we have discussed previously, Rule 54(b) of the Arkansas Rules of Civil Procedure allows a court to issue a final judgment as to certain claims or parties (when multiple claims or parties are involved).  By doing so, the trial court makes it possible for the court’s rulings as to the specific claims or parties to be appealed before the other claims are heard.  This option is available “only upon an express determination, supported by specific factual findings, that there is no just reason for delay.” Ark. R. Civ. P. 54(b).

Billingsley v. Benton NWA Properties, LLC

In the recent case of Billingsley v. Benton NWA Properties, LLC, 2014 Ark. 65, the Arkansas Supreme Court examined a Rule 54(b) certificate and held that it was not sufficient.  In that case, the plaintiffs owned a piece of property that flooded, which the plaintiffs alleged caused approximately $3,500,000 in damages (including loss of value to the property).  The plaintiffs sued “many defendants” for the damage caused by the flood, and ultimately reached a settlement agreement with Benton NWA Properties, LLC.  Prior to trial on the remaining claims against the remaining parties, a dispute arose between the plaintiffs and Benton NWA Properties, LLC regarding the terms of the settlement agreement.  Therefore, the plaintiffs and Benton NWA filed competing motions to enforce the settlement agreement, and the trial court granted Benton NWA’s motion to enforce.  The plaintiffs sought to appeal, and the trial court agreed to enter a judgment along with a Rule 54(b) certificate.

The Arkansas Supreme Court raised, sua sponte, the issue of the sufficiency of the Rule 54(b) certificate, noting that the sufficiency of such a certificate is jurisdictional.  The Court looked at Holbrook v. Healthport, Inc, 2013 Ark. 87, in which the court had held that a one-sentence explanation in the Rule 54(b) certificate was insufficient.  In Billingsley, the trial court had written a substantial certificate (it was over 5 paragraphs long, most with more than one sentence).  Nevertheless, the court held that the 54(b) certificate “fail[ed] to even include a one-sentence factual finding” regarding any danger of hardship or injustice that could be alleviated by an immediate appeal.  Therefore, the Arkansas Supreme Court dismissed the appeal without prejudice.

The Takeaway

Based on Holbrook and now Billingsley, the key to an effective Rule 54(b) certificate appears to be to explicitly state the hardship or injustice that will result if an immediate appeal is not allowed.  Simply laying out the procedural history is not enough, even if the implication from the history is that it would be inefficient to allow the trial to proceed without having the appeal heard first.  So, make sure that any Rule 54(b) certificate not only lays out the history of the case, but also the specific problems that will occur in the future if the appeal is not immediately heard.

Related Posts:

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History Made with Arkansas’s First Majority-Female Supreme Court

~ Tasha C. Taylor ~ 2 Comments

Judge Rhonda WoodJudge Rhonda Wood’s Unopposed Election Leads to First Female-Majority Arkansas Supreme Court

With the filing period officially closed and all judicial candidates announced, the Arkansas Supreme Court will, for the first time in history, be made up of a majority of female justices.  Court of Appeals Judge Rhonda Wood is running unopposed for Position 7 on the Arkansas Supreme Court, the seat being vacated by Justice Cliff Hoofman.  Justice Hoofman was appointed in 2012 by Governor Mike Beebe to fill the seat being vacated at that time by retiring Justice Robert L. Brown.  As an appointee, Justice Hoofman cannot run for that seat.

We reached out to Judge Rhonda Wood on Monday concerning her thoughts about her place in this historic moment for the Arkansas Supreme Court:

“It was during my first year of law school that Arkansas elected the first female justice—Justice Imber Tuck. I remember my female classmates feeling excited that we broke that glass ceiling. I never dreamed that I would be part of the election cycle to break the next glass ceiling of having a majority female court. My gender doesn’t change how I follow the law, but rather changes little girls’ dreams from possibilities to probabilities.” 

The 2014 judicial elections in Arkansas will take place on May 20, 2014, during the primary elections.  Justice Karen R. Baker is running unopposed for Position 6, the seat she currently holds.  The only other open seat on the Arkansas Supreme Court is Position 2, which is being vacated by retiring Justice Donald L. Corbin.  Two candidates have filed for that position: Little Rock attorney Tim Cullen and Court of Appeals Judge Robin F. Wynne.  Regardless of the outcome of that race, the Arkansas Supreme Court will be soon be comprised of four women and three men.

Appointed Female Members of the Arkansas Supreme Court

Elsijane Trimble Roy was the first female to serve as an Arkansas Supreme Court Justice.  She was appointed to Position 2 on the Arkansas Supreme Court in 1975 by Governor David Pryor.  In 1995, Andree Layton Roaf became the first African-American female to serve on the Arkansas Supreme Court after being appointed to that position by Governor Jim Guy Tucker.  Betty Dickey was appointed by Governor Mike Huckabee to become the first female Chief Justice on the Arkansas Supreme Court in 2004.  In 2008, Governor Mike Beebe appointed Elana Cunningham Wills to serve in Position 3 on the Arkansas Supreme Court.

Elected Female Members of the Arkansas Supreme Court

In 1997, Justice Annabelle Imber Tuck made history by becoming the first female to be elected to the Arkansas Supreme Court.  Since Justice Tuck’s retirement from the Arkansas Supreme Court in 2009, three other female Justices have been elected to serve on the Arkansas Supreme Court, all of whom are current members of that Court: Justice Karen R. Baker, Justice Courtney Hudson Goodson, and Justice Josephine L. Hart.

With the addition of Judge Rhonda Wood in 2015, Arkansas will join the ranks of only nine other majority-female state high courts in the country: California, Maryland, New York, North Carolina, Ohio, Texas (Court of Criminal Appeals), Tennessee,  Washington, and Wisconsin.

Although only nine state courts of last resort currently have a majority-female membership, sixteen state high courts are now led by female Chief Justices: Alaska, Arizona,  California, Maryland, Minnesota, Missouri, New Mexico, North Carolina, Ohio, South Carolina, Texas (Court of Criminal Appeals), Virginia, Washington, West Virginia, Wisconsin, and Wyoming.

* Hat tip to Tim Cullen at ReportedDecisions.com for the suggestion to research this topic.

Related Posts:

Little Rock Attorney Tim Cullen Announces Candidacy for Arkansas Supreme Court

~ Tasha C. Taylor ~ 3 Comments

Little Rock Attorney Tim Cullen

*Andy and I are excited to report that our good friend and mentor, Tim Cullen, has announced his candidacy for Arkansas Supreme Court.  

I have known Tim for the past seven years, more than three of which were spent working with him and learning from him as an Associate Attorney at Cullen & Co., PLLC.  Andy also spent a year working with Tim at his firm.  Tim is an excellent attorney and advocate for his clients, and his years practicing primarily as an appellate attorney give him the experience needed to serve on the Arkansas Supreme Court.

The press release follows.

Little Rock attorney Tim Cullen announced today his bid for the Arkansas Supreme Court to fill the seat being vacated by Justice Donald Corbin.  Cullen practices law in Little Rock and has been lead counsel on appeal in more than 150 cases before appellate courts including the U.S. Supreme Court, Arkansas Supreme Court, U.S. Court of Appeals for the Eighth Circuit, and the Arkansas Court of Appeals.

“I have a strong work ethic and a reputation for detail and efficiency, having recently been recognized by my peers as one of the best lawyers in Arkansas in the unique area of appeals,” he said.  “I have broad experience in handling all of the different types of appeals that the Arkansas Supreme Court decides.”

“I believe as a lawyer, people trust you with their lives, and attorneys have a moral responsibility to them,” Cullen added.

His firm has taken on some of the largest appeals in the state.

“I believe a voter needs to know I have a deep and personal respect of the virtues of hard work, very high personal standards for the judiciary, and strong view that we must enforce the rule of law to everybody, equally,” he added.

Cullen also serves on a task force appointed by the Arkansas Supreme Court to implement electronic filing of appeal records and appeal briefs, which he believes can reduce costs of producing appeals and could save money by reducing the infrastructure required to store thousands of appeal records and briefs every year.

He served as an adjunct instructor in the University of Arkansas at Little Rock, and he received the Golden Gavel Award from the Arkansas Bar Association.

A native of Little Rock, Cullen graduated from the University of Arkansas where he served as student body president and also graduated law school from Fayetteville.  He worked with the late Judge Terry Crabtree at the Arkansas Court of Appeals and later opened his private law practice representing clients in appellate matters.

He lives in Maumelle with his wife Sarah and three children. The nonpartisan judicial election will take place May 20, 2014.

Toward a More Practical Approach to Preservation: Hardin v. Bishop

~ Andy Taylor ~ 1 Comment

In a December 2012 blog post, we questioned whether Bayer Cropscience LP v. Schafer, 2011 Ark. 518, represented a “possible departure from Arkansas’s strict preservation rules.” See Procedural Lessons from a $48 Million Dollar Appeal.  As readers of this blog will likely recall, the Arkansas Supreme Court in Schafer addressed whether the punitive damages cap, enacted by the legislature as part of the Civil Justice Reform Act of 2003, was constitutional.  The trial court had ruled from the bench that the cap was unconstitutional, and in its written order had implicitly held that the cap was unconstitutional (by upholding a jury verdict in excess of the cap).  However, the trial court had not addressed the constitutional argument in its written ruling, and in its ruling from the bench, the trial court had not stated which of two arguments it accepted in holding that the cap was unconstitutional.

In Schafer, the Arkansas Supreme Court held that the oral ruling from the bench was adequate.  The Court also held that the lack of an explanation for the trial court’s decision in its written opinion did not prevent the Arkansas Supreme Court from addressing the merits of the constitutional argument.  In our blog post from 2012, we noted that “[i]t will be interesting to see whether the Schafer preservation rule is followed by the Court in decisions to come.”  Last week, in Hardin v. Bishop, 2013 Ark. 395, the Arkansas Supreme Court fully embraced the ruling in Schafer, and overruled a handful of cases in the process.

The Facts

Although the more interesting part of the Hardin opinion (at least for appellate attorneys) is procedural in nature, a simplified summary of the facts is provided for context.  Hardin involved a brush fire that got out of control, damaging a tire shop and some electrical equipment owned by Entergy.  The fire had been started by Mr. Randy Wardlaw, who was burning brush on property that belonged to Ms. India Bishop.  The owner of the tire shop, along with Entergy, sued Mr. Wardlaw and Ms. Bishop (on the theory that Mr. Wardlaw was acting as Ms. Bishop’s agent).  In addition to compensatory damages, the plaintiffs sought to recover double damages under a fire prevention statute, Ark. Code Ann. § 20-22-304.

Ms. Bishop filed a motion for summary judgment, arguing that there was no question of material fact that Mr. Wardlaw had caused the damage, and further arguing that Mr. Wardlaw was not acting as her agent when he started the fire.  She also argued, in the alternative, that the fire prevention statute (which allowed the recovery of double damages) did not apply to her.  After a hearing, the trial court granted Ms. Bishop’s motion for summary judgment, but did not state a specific basis for the ruling.  The plaintiffs appealed to the Arkansas Court of Appeals, and the Arkansas Supreme Court accepted certification of the case to address the question of whether the plaintiffs’ arguments had been preserved for appeal, given that the trial court had not offered a specific basis for its ruling.

The Opinion: Hardin v. Bishop

In its opinion (written by Justice Courtney Hudson Goodson, who also wrote the majority opinion in Schafer), the Arkansas Supreme Court acknowledged that “the circuit court generally granted Bishop’s motion for summary judgment without ruling specifically on the arguments presented in the parties’ motions, briefs, and oral arguments.”  The Supreme Court pointed out, however, that the “primary argument” made by Ms. Bishop in her motion for summary judgment was that Mr. Wardlaw was not acting as her agent, and the plaintiffs’ primary argument was that there was a genuine issue of material fact with respect to whether he was acting as her agent.

The Arkansas Supreme Court next looked at the text of two rules.  First, the Court examined Rule 56(c)(2) of the Arkansas Rules of Civil Procedure, which provides that summary judgment is appropriate if the pleadings show that there is no genuine issue of material fact and that “the moving party is entitled to judgment as a matter of law on the issues specifically set forth in the motion.”  Second, the Court examined Rule 52(a) of the Arkansas Rules of Civil Procedure, which provides that “[f]indings of fact and conclusions of law are unnecessary on decisions of motions under these rules.”  (The Court also relied on this rule in reaching the merits of the case in Schafer.)  The Supreme Court appears to have drawn a distinction here between preservation when motions are involved and preservation in other types of cases, holding that “when a case does not involve a motion, we typically adhere to our well-established principle that the failure to obtain a ruling on an issue at the trial court level precludes a review of the issue on appeal.”

Based on these rules, the Supreme Court held that the agency issue was adequately preserved for appeal.  The agency issue had been raised by the parties in their motions and in their oral arguments before the trial court.  The trial court’s order stated that it was “[b]ased upon the adopted pleadings and argument of counsel,” and so the trial court’s order “encompassed the sole issue of agency presented to it . . . .”  Therefore, the agency issue was preserved.

Before moving to the merits of the plaintiffs’ argument regarding agency, the Arkansas Supreme Court acknowledged a line of cases in which the trial court had granted a motion for summary judgment and the Supreme Court had held that, in the absence of specific rulings on numerous claims, that the issue was not preserved for appeal.  In Hardin, the Arkansas Supreme Court held that “[t]o the extent that those cases and their progeny are inconsistent with the holding in the present case, we overrule them.”

The Takeaway: Appellate Practice Tips

This decision definitely relaxes the court’s prior strict preservation rules, and seems to adopt a more common-sense approach to preservation than perhaps has been used in the past.  In Hardin, the trial court had clearly based its decision on the agency issue.  In fact, the agency issue was the only issue raised in the briefs, other than Ms. Bishop’s argument that the statute allowing for double damages did not apply to her.  Because the trial court completely dismissed Ms. Bishop from the case (rather than simply limiting the amount of damages that could be awarded against her), it was clear that the trial court based its decision on Ms. Bishop’s agency argument.

This practical approach to preservation is certain to be welcomed by both trial counsel and appellate counsel.  Nevertheless, a word of caution is in order.  The Court in Hardin was examining a motion for summary judgment that examined only one issue.  In fact, the Arkansas Supreme Court noted two different times that the issue of agency was the “sole” issue raised in the motion for summary judgment, while noting that in the previous decisions that were inconsistent with Hardin, the motions involved “numerous claims.”  In addition, the Supreme Court noted that Hardin involved a motion, and seemed to draw a distinction with cases that do not involve a motion.  Therefore, the safest route still is to obtain a written ruling (along with a basis for the ruling, when the trial court will accommodate such a request) on any important argument that needs to be preserved for appellate review.

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