In Lancaster v. Rogers Construction, Inc. (Lancaster I), 2019 Ark. App. 582, the Arkansas Court of Appeals dismissed an appeal without prejudice for lack of a final order. In that case, the Plaintiffs (Mr. Lancaster and, later, Ms. Lancaster) filed suit against Rogers Construction, Inc., Roger E. Rogers, Rustan K. Rogers, and John/Jane Does 1-99 for breach of express contract, breach of implied contract, breach of implied warranty, negligence, strict (product) liability, and fraud. Through a series of motions and orders, the circuit court dismissed the breach of express contract and strict (products) liability claims against the individual defendants, and also dismissed the complaint as to the corporation. The circuit court’s disposition of the remaining claims was, as the Court of Appeals put it, “not clear,” so the Court of Appeals dismissed the plaintiff’s appeal without prejudice.
The Plaintiffs then filed a motion to dismiss their claims against the individuals and the John/Jane Doe defendants with prejudice. That motion was granted, and the following language appeared in the order:
This language might have been sufficient to resolve the finality problem, but, as the Court of Appeals pointed out in Lancaster v. Rogers Construction, Inc. (Lancaster II), 2020 Ark. App. 582, there was still a problem. As it turns out, the Court of Appeals handed down its decision in Lancaster I on December 11, 2019. The plaintiffs’ motion to dismiss was filed on December 18, and the order dismissing the claims (quoted above) was entered on December 19. The problem is that the mandate didn’t issue until January 10, 2020.
Because the order predated the mandate being issued, the Arkansas Court of Appeals held that “the circuit court’s December 19 order was entered without jurisdiction and is considered null and void.” Therefore, the court again dismissed the appeal without prejudice.
We’ll be watching for Lancaster III, and will update this post accordingly.
The Court of Appeals in Jackson, et al v. Iberiabank, 2020 Ark. App. 372, reiterated a prior holding: That the bankruptcy of one defendant does not create a final order as to another defendant. But, as discussed below, that can create a trap for attorneys if the bankrupt defendant gets dismissed later.
In Jackson, a bank sued two defendants (an individual and a corporation) for defaulting on a promissory note. After the complaint was filed, the corporation filed for bankruptcy. This, of course, caused the corporation to receive the protections of the automatic bankruptcy stay, preventing the bank from proceeding against the corporation. The bank then filed–and prevailed on–a motion for summary judgment against the individual defendant, and the individual defendant appealed.
On appeal, the Arkansas Court of Appeals raised sua sponte a jurisdictional issue: Was the summary judgment order against the individual defendant a final order for purposes of appeal? Relying on prior similar cases, the Arkansas Court of Appeals held that one defendant’s bankruptcy “does not affect the lack of finality.” The Arkansas Court of Appeals further held that “while [the bank’s] claims against [the corporation] were stayed by the bankruptcy court when the summary-judgment order on appeal was entered, those claims remained pending and the trial court could reacquire the ability to rule on them at any time.” Therefore, the court dismissed the appeal. The dismissal was without prejudice, so the appellant will have another shot at this once the finality issue can be resolved at the trial court.
For an example of a nightmarish scenario where the Arkansas Court of Appeals dismissed an appeal with prejudice, one need look no further than Ballard v. Allied Financial, Inc., 2016 Ark. App. 539, which was cited in Jackson. In Ballard, a bank sued a couple for replevin to recover a vehicle, and later added the repair facility that had actual possession of the vehicle as a defendant. The couple filed bankruptcy, giving them the protection of the automatic stay. The repair facility did not timely file an answer, and an order of default was entered against the repair facility. The repair facility then filed a notice of appeal. After the repair facility filed its notice of appeal, the court dismissed the couple without prejudice. The repair facility did not file a notice of appeal from that dismissal order.
On appeal, the Arkansas Court of Appeals held that the default judgment against the repair facility was not a final order. However, once the dismissal was entered as against the couple, a final order was created, even though the dismissal as to the couple was without prejudice. Because the repair facility did not file a notice of appeal from the order dismissing the couple, the Court of Appeals held that it did not have jurisdiction to hear the appeal. The court’s reasoning was that the appeal from the first order wasn’t effective because that order was a nonfinal order, and there was no notice of appeal from the second order (and, of course, it was too late to file a notice of appeal by the time the Court of Appeals considered the case). Therefore, the Court of Appeals dismissed the appeal with prejudice.
Probably the cleanest solution to this problem is to try to get the circuit court to attach a Rule 54(b) certificate to the order against the non-bankrupt party. We have previously blogged about Rule 54(b) certificates. And the safest thing to do whenever multiple orders are being entered is to file notices of appeal (and amended notices of appeal) early and often.
We are often asked about creating bookmarks in Adobe, so this post provides a brief explanation of the basics of creating bookmarks. PLEASE NOTE that under the current rules, you must create hyperlinks in your appellate briefs. For instructions on how to do that, visit our previous blog post on the topic.
So, why would anyone need to know about bookmarks? Two reasons come to mind. First, the proposed rules regarding electronic filing require the use of bookmarks. So, if you’re planning to participate in the pilot project, you’ll need to know how to use bookmarks. Second, for ease of navigation, we usually add bookmarks even when we’re proceeding under the current rules (in addition to the required hyperlinks). We do this because we’ve heard anecdotally that some judges prefer bookmarks to hyperlinks, and we think the proposed rule changes (which mandate bookmarks) support that view.
With that background in mind, we move now to the directions. (Note that in the screenshots below, we have simply used the Arkansas Supreme Court’s model appellant’s brief.)
Step 1: Open the bookmarks pane
Click the icon on the left side of the screen that looks like an old-school bookmark. (If you cannot see that icon, there is a very small right-facing arrow that you’ll need to click first.)
Step 2: Browse to the portion of the brief that you are bookmarking
At this point, you’ll simply browse to the part of the brief you want to bookmark. If you want to make Step 4 slightly easier, highlight the text at the beginning of that portion of the brief.
Step 3: Click the “New Bookmark” button
Once you’ve browsed to the page you’re bookmarking, click the “New Bookmark” button.
Step 4: Name your bookmark
If you highlighted the text in Step 2, then your bookmark will already be named. Otherwise, just type the name of the bookmark.
There are more advanced features to bookmarking (such as nesting), but those are outside the scope of this blog post.
As we noted in our original post (below), the Arkansas Supreme Court has proposed a set of rule changes that abolish the abstracting and addendum requirement. In the original post, we promised to provide updates and more details, so we’re doing that now. Before delving into those details, please note that these are proposed revisions, so they are subject to change. However, if you can get your record in electronic format, you may participate in a pilot project using these rules. So, with that said, here are the major changes (and, of course, review the per curiam before filing your brief; this is just a general overview):
The Biggest Change: Abolition of the Abstracting and Addendum Requirement
This, of course, is the biggest change. Attorneys are no longer required to prepare an abstract or an addendum. Rather, attorneys will refer to the relevant page number in the record. As mentioned below, the record will now be comprised of two separate portions: a pleading portion and a transcript portion. If you cite to the pleading portion of the record, use the format (RP 10), and if you cite to the transcript portion, use the format (RT 10). The court has a computer program that converts those citations to links to the relevant portion of the record.
Preparation and Filing of the Record
As mentioned above, there will now be two portions of the record: pleadings and transcripts. The record must be in electronic format (PDF), and each portion of the record must be sequentially numbered such that the first page of the PDF is the first page of the record. This means that whatever the first page of the PDF is (cover page, table of contents, etc.), it must be page 1.Under the proposed rule, attorneys are still responsible for filing the record, but unlike in the past, the record can now be filed electronically.
BriefComponents
In addition to the elimination of the abstract and addendum, the informational statement (the form that included questions about the appeal and the brief) has been eliminated. The jurisdictional statement has more specific requirements under the proposed rule than under the current rule. There are also a couple of new sections: a request for relief and a certificate of compliance with Administrative Order No. 19 (relating to confidential information) and with the word-count limitations (discussed in more detail below). Finally, the “statement of the case” has been replaced with the “statement of the case and facts.”
Length Limitations
There are two significant changes to the length of the brief. First, rather than limiting the statement of the case to a certain number of pages and the argument to a certain number of pages, the limitation is a global limitation that can be allocated in whatever way makes the most sense. Second, the limitation is converted to a word limit, rather than a page limit. The word count includes the jurisdictional statement, the statement of the case and the facts, the argument, and the request for relief. All other portions of the brief are disregarded for purposes of the word count. Here are the limits:
Brief Type
Word Count Limit
Appellant’s Brief
8,600
Appellee’s Brief
8,600
Reply Brief
2,875
Appellee’s/Cross-Appellant’s Brief
14,325
Reply/Cross-Appellee’s Brief
11,475
ORIGINAL POST
As Justice Rhonda Wood described it on Twitter, there was some “HUGE” news from the Arkansas Supreme Court this morning:
HUGE News from the Arkansas Supreme Court this morning. The day has arrived!! Now attorneys- go file those electronic records
IN RE ACCEPTANCE OF RECORDS ON APPEAL IN ELECTRONIC FORMAT AND ELIMINATION OF THE ABSTRACTING AND ADDENDUM REQUIREMENTS https://t.co/tc3RPQasiy
— JusticeRhondaWood (@JudgeRhondaWood) June 6, 2019
We’re still reading the per curiam, and it’s full of changes,
but here’s a brief synopsis (you can expect a more detailed examination later).
First, effective immediately, attorneys may begin requesting electronic records from the circuit clerk, and the circuit clerk is required to provide the record in electronic format.
Second, the Arkansas Supreme Court published for comment revisions to the rules that accommodate these electronic records. Those rules abolish the requirements of an abstract and addendum.
Third—and here’s the best part—even though those rules are currently only published for comment (meaning they are not in effect yet), attorneys who choose to file their records electronically are permitted to file under the new rules as part of a pilot project.
As the Supreme Court noted in its per curiam, the abstracting requirement (and, to a lesser extent, the addendum requirement) had outlived their usefulness. In our opinion, the abstract adds needless time and expense (both in attorney’s fees and printing costs) to the appellate process, it is confusing, and even a well-done abstract can’t effectively capture what occurred at trial. This is a good move, and we look forward to seeing it fully implemented. And you can rest assured that we will never order another paper record again!
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.
The updated 2019 Timeline of an Arkansas Civil Appeal has just been released by Taylor & Taylor Law Firm, P.A. We have edited the timeline to include rule changes that have occurred since the last release.
To receive your very own timeline card in the mail, just email us at Attorney@TaylorLawFirm.com to request yours today.
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.”
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.
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.
Introducing the new Timeline of an Arkansas Civil Appeal infographic, brought to you by Taylor & Taylor Law Firm, P.A. If you would like to receive a copy of our custom timeline card for your office, just send us an email with your address and request and we’ll mail one out to you for free! You can email us at Attorney@TaylorLawFirm.com.
ArkansasAppeals.com 