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You’ve Got To Name It To Claim It: Barton v. Arkansas Department of Human Services

~ Andy Taylor

In Barton v. Arkansas Department of Human Services, 2019 Ark. App. 239, the Arkansas Court of Appeals affirmed a circuit court’s termination of a mother’s parental rights to her three children. In doing so, the Court of Appeals gave an example of just how specific they expect objections to be at trial.

One of the pieces of evidence used against the mother in Barton was a psychological evaluation that recommended that the mother could not care for the children by herself. In the order terminating parental rights, the circuit court specifically stated that it had relied, at least in part, on the psychological evaluation.

On appeal, the mother argued that the psychological evaluation was inadmissible hearsay. The mother’s attorney had objected at trial, stating: “I will object unless the psychologist testifies,” and “[I]t’s my position that the psychologist needs to be here to testify.” Nevertheless, the Arkansas Court of Appeals refused to address the issue.

In refusing the address the issue, the Court of Appeals held that this objection was “vague.” Specifically, the Court of Appeals held that this objection could have been a hearsay objection, but it also could have been an authentication objection or a right-to-cross-examine objection.

This case shows the importance of being as specific as possible when raising objections. In fact, it is quite possible that this is one of those instances where everyone in the courtroom knew and understood what the objection was about, but it’s just not reflected in the record. Because Arkansas appellate courts are often very strict about objections, we always urge extreme caution when trying to preserve an objection for appeal.

Creating Hyperlinks in Adobe

~ Andy Taylor

One of the questions we receive quite frequently is about creating hyperlinks to the sections of a brief.  With electronic filing of briefs now required, and with hyperlinks required as part of electronic filing, this is something every attorney filing appellate briefs in Arkansas must know.

We’ve put together a short set of instructions for hyperlinking.  For this example, we are using the Supreme Court’s model brief.  We use Adobe Acrobat Pro DC, but any modern PDF editing program (such as Foxit PhantomPDF; Nuance Power PDF) has the same functionality, and works basically the same way.

Step 1: Open the Hyperlinks Toolbar

In the “Find Your Tools Here” box (which is in the upper right-hand corner), type “link.”

Creating Hyperlinks in Arkansas Appellate Briefs - Step 1

Continue reading “Creating Hyperlinks in Adobe” →

The Arkansas Court of Appeals Holds that Sanctions and Contempt Are Not the Same

~ Andy Taylor

The Arkansas Rules of Appellate Procedure–Civil provide that “[a]n appeal may be taken from a circuit court to the Arkansas Supreme Court from . . . [a] civil or criminal contempt order, which imposes a sanction and constitutes the final disposition of the contempt matter.” Ark. R. App. P.–Civ. 2(a)(13).  But what about an order that imposes sanctions, but doesn’t hold anyone in civil or criminal contempt?

In Hancook Tire Co., LTD v. Philpot, 2016 Ark. App. 386, the parties were involved in an ongoing discovery dispute.  Eventually, the plaintiff (Philpot) filed a “Motion for Sanctions for Spoliation and Concealment of Evidence.”  A hearing was held on the motion, and the trial court eventually issued a letter opinion in which it stated that, because of “the multiple hearings that have been necessitated because of the Defendants obtuse and unnecessary abuse of the discovery process,” the trial court would impose Rule 37 sanctions (in the form of attorney’s fees) “to deter any future similar conduct.”

The trial court then entered an order awarding a total of $43,025 in attorney’s fees because Hankook’s “conduct in obstructing discovery has been egregious . . . . [and] to deter further such obstruction of discovery in this matter.”  In the order, the trial court stated that “[t]his Order is a final Order for purposes of appeal.” A purported Rule 54(b) certificate appeared at the end of the order.  (The Rule 54(b) certificate was rejected by the Court of Appeals in this case because it merely tracked the language of the rule, rather than making specific factual findings; we have previously blogged on this topic, and so therefore will not go into detail on that issue in this blog post.)

The question in the Hancock case is whether an order that imposes sanctions rises to the level of an order of contempt that would make that order a final order for purposes of appeal.  In Hancook, the Court of Appeals held that such an order was not an appealable order.  Specifically, the Court of Appeals held as follows:

Hankook’s notice of appeal cited to the contempt-with-sanctions provision as the basis to invoke appellate jurisdiction, but the trial court here did not hold Hankook “in contempt,” although it could have so determined as an appropriate sanction under Rule 37(b)(2)(D).  Rather, the trial court here entered an order for attorney fees for discovery obstruction.  This is not a final, appealable order.

This distinction is a fine line, so counsel must be careful when making the decision whether or not to file a notice of appeal from an order imposing sanctions.  It would appear that had the order simply added a few words (stating that one of the parties or counsel was being held “in contempt”), this order would have been considered a final, and, therefore, appealable order.  This is yet another reason that it is vital for counsel to closely and carefully read every order before deciding whether or not to file a notice of appeal from that order.

A cautionary note is in order, however.  As we have mentioned before, in light of the opinion in Massinelli v. Massinelli, 2016 Ark. App. 90 (and the cases upon which it relied), counsel should always be cautious about deciding not to file a notice of appeal from an order that is arguably final, even if it appears to be nonfinal.

The Arkansas Supreme Court Clarifies the Standard for Terminating Consensual Guardianships of Minors

~ Andy Taylor

Suppose a mother consented to a guardianship of her child because she had a drug problem and was seeking treatment.1 Now suppose the mother, after putting her life back together, walks into your office and wants to terminate the guardianship. What standard applies to her petition to terminate the guardianship? This article attempts
to answer that question.

The Arkansas statute governing guardianships provides that “[a] guardianship may be terminated by court order . . . [if] . . . the guardianship is no longer necessary or for the best interest of the ward.”2 While this statute might appear to be straightforward, there have been four major Arkansas Supreme Court cases in the last six years or so dealing with this issue, each of them with a concurrence, a dissent, or both.

Some of the complexity arises because of a 2000 case from the Supreme Court of the United States dealing with grandparent visitation. This article will begin with a short synopsis of that case, and then move to the evolution of this area of law in light of that opinion.

Troxel v. Granville: “There is a presumption that fit parents act in their children’s best interests.”3

In Troxel v. Granville, the United States Supreme Court examined a Washington statute that allowed courts to award visitation of a child to any person if the visitation was in the best interest of the child. The Supreme Court held that the statute was unconstitutional because it gave no deference to a parent’s decision regarding visitation. The Court held that “[t]here is a presumption that fit parents act in their children’s best interests.”

Although the Troxel decision would eventually become important in termination of consensual guardianship cases in Arkansas, the first major Arkansas case on point that began to move the needle in favor of parental rights did so without relying on Troxel.

Continue reading “The Arkansas Supreme Court Clarifies the Standard for Terminating Consensual Guardianships of Minors” →

In Memory of Chief Justice Hannah

~ Tasha C. Taylor

The Arkansas Supreme Court issued a per curiam last week entitled In Memory of Chief Justice James R. Hannah, in which the Court recognized Justice Hannah’s 37 years of service to the Arkansas Judiciary.

I had the privilege and honor of starting my legal career at the Arkansas Supreme Court during the time when Chief Justice Hannah led the Court.  Much has been written about how he was an accomplished jurist, and rightfully so.  But, I was always most impressed by his gentle smile and soft voice with which he seemed to greet everyone he met.  It’s no wonder he was such a remarkable leader who aspired for a system of justice where all people would receive the same level of treatment.

“We have the best judicial system in the world. But if a person cannot walk through those courtroom doors because of their economic status or race, then having the best judicial system means absolutely nothing.” – Chief Justice Jim Hannah, June 2010.

* Hat tip to Amy Dunn Johnson for sharing the above quote and link to the following video where Justice Hannah speaks about access to justice during his first “State of the Judiciary Address” at the 2010 annual meeting of the Arkansas Bar Association.

 

Another Post-Judgment Motion Cautionary Tale: Evangelical Lutheran Good Samaritan Society v. Kolesar

~ Andy Taylor ~ 1 Comment

We have discussed the dangers of post-trial motions in a previous blog post.  In fact, in a CLE we presented to the Arkansas Trial Lawyers Association in 2011, we listed the filing of a post-trial motion as one of the “Top Five Ways to Wreck Your Next Appeal.”  Fellow blogger Tim Cullen recently discussed the same problem in a blog post discussing Virgil v. Morgan, 2013 Ark. App. 675, and also recommended avoiding post-trial motions unless absolutely necessary.  Now, Evangelical Lutheran Good Samaritan Society v. Kolesar, 2013 Ark. App. 723, gives us yet another reason to avoid post-trial motions.

Kolesar is a nursing home negligence case.  The plaintiff, who had been a resident of the nursing home for approximately eight months in 2009, filed suit against the nursing home on December 2, 2010.  On January 3, 2011, the nursing home removed the case to federal court and filed an answer that, among other things, reserved the right to enforce any applicable arbitration agreement.  On April 15, 2011, the federal court remanded the case back to state court.

After the case was remanded back to state court, the nursing home filed a motion to compel arbitration, based on its allegation that the resident’s husband had signed an arbitration agreement on the resident’s behalf.  The trial court held an evidentiary hearing on the motion (there was a dispute as to whether the husband had actually signed the agreement, and as to whether he was acting as her agent at the time), and at the conclusion of the hearing, the trial court took the matter under advisement.

On May 21, 2012, the trial court entered an order denying the motion to compel arbitration, with the order stating that the decision had been announced in open court.  Eight days later (May 29, 2012), the nursing home filed a motion seeking specific findings of fact and conclusions of law.  Because the trial court never ruled on the motion, the motion was deemed denied on June 28, 2012, and the nursing home filed its Notice of Appeal on July 20, 2012.  The Arkansas Court of Appeals raised, sua sponte, the issue of timeliness of the Notice of Appeal, and dismissed the appeal.

Rule 4(b) of the Arkansas Rules of Appellate Procedure–Civil governs when a post-trial motion extends the time to file a Notice of Appeal.  Under that rule, the following motions extend the period during which to file a notice of appeal:

a motion for judgment notwithstanding the verdict under Rule 50(b) of the Arkansas Rules of Civil Procedure, a motion to amend the court’s findings of fact or to make additional findings under Rule 52(b), a motion for a new trial under Rule 59(a), or any other motion to vacate, alter, or amend the judgment made no later than 10 days after entry of judgment . . . .

The question, then, was whether the nursing home’s motion fit into one of these categories and, more specifically, whether it qualified as “a motion to amend the court’s findings of fact or to make additional findings under Rule 52(b).”  Based on the language of Rule 52(b), the Court of Appeals held that the motion in this case did not fall into this category, holding instead that the nursing home’s motion was a Rule 52(a) motion.

Rule 52(a) of the Arkansas Rules of Civil Procedure provides as follows:

If requested by a party at any time prior to entry of judgment in all contested actions tried upon the facts without a jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58 . . . .  Requests for findings are not necessary for purposes of review . . . .  If an opinion memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein.

Rule 52(b) of the Arkansas Rules of Civil Procedure provides as follows:

Upon motion of a party made not later than 10 days after entry of judgment, the court may amend its findings of fact or make additional findings and may amend the judgment accordingly…. If the court neither grants nor denies the motion within 30 days of the date on which it is filed or treated as filed, it shall be deemed denied as of the 30th day.

Relying in part on Ark. Dep’t of Human Servs. v. Dix, 94 Ark. App. 139, 227 S.W.3d 456 (2006), the Court of Appeals pointed out the differences between the two types of motions.  A Rule 52(a) motion must be filed before a judgment is entered, while a Rule 52(b) motion may be filed up to ten days after a judgment is entered.  A Rule 52(a) motion is mandatory on the trial court, while a Rule 52(b) motion is not.  The Court of Appeals also noted that Rule 52(a) anticipates that a trial court would state its facts and conclusions of law, while Rule 52(b) anticipates that a trial court would amend its findings of fact or make additional findings of fact.

The Court of Appeals held that the motion in Kolesar was a Rule 52(a) motion, in spite of the fact that the nursing home cited Rule 52(b) in its motion, and in spite of the fact that it was filed 10 days after the entry of the order denying the motion to compel arbitration.  The Court of Appeals noted that there had been no findings of fact by the trial court, so there were no findings to amend under Rule 52(b).  In addition, the nursing home’s motion sought “specific findings of fact and conclusions of law,” language that is found in Rule 52(a), but not Rule 52(b).

Because the Court of Appeals held that this was a Rule 52(a) motion, the deadline for the nursing home to file a Notice of Appeal was not extended, meaning that the Notice of Appeal would have been due 30 days after May 21, 2012.

The opinion in Kolesar was written by Judge Gladwin and joined by Judge Walmsley, and a concurring opinion was written by Judge Gruber.  In her concurrence, Judge Gruber acknowledged that the decision is correct, but she expressed concern about the outcome.  She indicated that in this case, the outcome was not too harsh because it simply meant that the case would go to trial rather than be arbitrated.  She expressed concern, however, that there could be “a harsh result under slightly different circumstances,” and suggested that the Arkansas Supreme Court revisit Rule 52.

This case is yet another example of why, generally speaking, a post-trial motion simply is not worth the risk.  There is not much upside (trial courts often don’t rule on them anyway, causing them to be deemed denied, and when they do rule on them, they often “bullet-proof” their earlier order), but there is a lot of downside.  Therefore, our general recommendation is to avoid post-trial motions unless absolutely necessary.

The “Immediately After” Requirement of Rule 54(b) Certificates: Making Sure We’re All on the Same Page

~ Andy Taylor

Watkins v. City of Paragould, 2013 Ark. App. 539, involves a long-running dispute (dating back to 2006) between landowners and a city that wanted to trim trees near the landowners’ property.  As a result of a problem with a Rule 54(b) certificate in the case, it looks like the dispute will last at least a little bit longer.

The case began when the City filed a petition in the Greene County Circuit Court claiming that the City was entitled to an easement over the landowners’ property, and seeking an injunction to prohibit the landowners from interfering with the City’s maintenance of its electrical lines.  The landowners filed a counterclaim (with 27 counts) against the City.  Many of the counts were dismissed, and others were set for trial (separately from the City’s request for an injunction).

On May 10, 2012, after a multi-day hearing, the trial court entered an injunction prohibiting the landowners from interfering with the maintenance of the City’s electrical lines.  The order did not address the landowner’s counterclaims which, as mentioned above, were set for a separate trial.  Nevertheless, the landowners filed a notice of appeal, purporting to appeal from the order granting the injunction, as well as several other orders.  The City moved to strike the notice of appeal for lack of a final order (because of the pending counterclaims). A subsequent hearing was held, and the landowners requested a Rule 54(b) certificate.  The court was open to the idea, but rather than attach the certificate to the original order, the trial court prefered to enter a separate order.  Therefore, on August 7, 2012, the trial court entered a nunc pro tunc “Addendum,” which contained a Rule 54(b) certificate.  The landowners filed additional notices of appeal, but did not reference the Addendum.

On appeal, the Court of Appeals refused to hear the case, dismissing the case without prejudice.  The Court based its holding on the language of Rule 54(b), which provides that the certificate “shall appear immediately after the court’s signature on the judgment . . . .” Ark. R. Civ. P. 54(b)(1).  The Court also noted that it was important to have the certificate appear within the order itself because doing so: (1) grants finality to the order; (2) establishes the identity of the order appealed from; and (3) establishes the date from which to calculate the deadline for the notice of appeal.

There are a couple of items to note with respect to this opinion.  First, the Court noted that the “Addendum” entered by the trial court on August 7, 2012 “was not attached to the court’s May 10, 2012 order; nor did it reiterate the findings and conclusions of law from the order, or incorporate or replicate the order in any way.”  From this, it seems at least possible that the Court of Appeals might have heard the appeal had the trial court taken one of these steps.

Second, in a footnote, the Court of Appeals pointed out the the landowners’ notice of appeal did not include a statement abandoning all pending but unresolved claims, which is required in most notices of appeal. Ark. R. App. P.–Civ. 3(e)(vi).  It appears that the Court of Appeals pointed this out simply to make 100% clear that the order from which the landowners had appealed was not a final order (had the landowners included the language, the order would have been a final order, because the landowners would have been abandoning the pending but unresolved counterclaims).  Please note that the abandonment language in Rule 3(e)(vi) is not required in cases involving a Rule 54(b) certificate.  In fact, doing so defeats the purpose of the Rule 54(b) certificate, because in many cases the abandonment language would make the order with the Rule 54(b) certificate a final order.

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

~ 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.

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