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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.

Related Posts:

Arkansas Court of Appeals Swearing-In Ceremonies

~ Tasha C. Taylor ~ 1 Comment

Three Arkansas Court of Appeals Judges were sworn in on January 12, 2011: Judge Robert Gladwin, Judge Josephine Linker Hart, and Judge Robin Wynne.  Gladwin and Wynne were both unopposed in the 2010 elections for their positions.  Judge Josephine Linker Hart received 51.83% of the vote to defeat Circuit Court Judge Rhonda Wood on May 18, 2010. 

Click here to view the video from the January 12, 2011 swearing-in ceremony for Judges Gladwin, Hart, and Wynne.

Recently appointed Judges Cliff Hoofman and Doug Martin will be sworn in as Arkansas Court of Appeals Judges on January 16, 2011 at 2:00 p.m.  A live video of that ceremony can be viewed online through the Arkansas Judiciary’s website. 

Click here to find the video link for the January 16, 2011 swearing-in ceremony for Judges Hoofman and Martin.  That link will be available by 2:00 p.m. on the day of the ceremony.

Arkansas’s Administrative Office of the Courts Seeks Proposals for New Statewide Electronic Filing System

~ Tasha C. Taylor ~ 1 Comment

The Administrative Office of the Courts (AOC), pursuant to its authority under Administrative Order 21, took a step toward implementing electronic filing statewide when it recently announced its request for proposals “for systems and services for the implementation of a comprehensive statewide electronic filing system for the Arkansas Judiciary.”  According to the AOC, the filing system must meet the following requirements:

The system must have the proven capability of handling all types of cases including small claims, traffic, criminal, civil, probate, juvenile, and domestic relations. The system must also have been successfully implemented at limited, general, and appellate levels of a multi-jurisdictional court system.

Arkansas appellate attorneys and Arkansas general practitoners would benefit from the type of uniform statewide filing system, as described by the AOC.

Appellate Court Updates

~ Tasha C. Taylor

The Administrative Office of the Courts provides a monthly Appellate Update to assist with finding published decisions of the Arkansas Supreme Court and the Arkansas Court of Appeals.  The Appellate Update is not meant to provide a summary of each case, but rather provides highlights of the issues involved in each case mentioned in the publication. 

The Appellate Update can be found on the Court’s website each month.  The March volume is currently available.

Below is a sample of the case highlights included by topic in the March volume of the Appellate Update:

2010 Arkansas Appellate Court Election Roundup

~ Tasha C. Taylor ~ 2 Comments

Arkansas’s judicial elections take place on May 18, 2010.  Early voting begins on May 3, 2010.

The following is a list of judicial candidates running for the open seats on the Arkansas Supreme Court and Court of Appeals (contested positions are highlighted):

Arkansas Supreme Court

These positions on the Arkansas Supreme Court will be elected in a statewide election.

Arkansas Court of Appeals

The only contested position on the Arkansas Court of Appeals is that for District 02, Position 01.  Only the residents residing in District 02 will be permitted to vote in this contested election.  That judicial district is comprised of the following 18 counties:  Baxter, Boone, Cleburne, Conway, Faulkner, Fulton, Independence, Izard, Jackson, Lawrence, Marion, Newton, Pope, Randolph, Searcy, Sharp, Stone, and Van Buren.

For a full list of candidates for all Arkansas judicial elections in 2010, visit Judgepedia.org.

To read the rules, regulations, and procedures governing judicial elections in Arkansas in 2010, view the Arkansas Judicial Elections Guide for 2010.

Arkansas Supreme Court Overrules Previous Arkansas Appellate Court Decisions Inconsistent with the Court’s Strict Preservation Rule

~ Tasha C. Taylor ~ 2 Comments

Today, the Arkansas Supreme Court overruled two previous decisions that were in conflict with the Court’s holdings that require a party to make a “contemporaneous objection at trial” in order to preserve an argument for appellate review. Lamontagne v. Arkansas Department of Human Services, 2010 Ark. 190, at 7, Case No. 09-859 (April 22, 2010). 

In its decision, the Court overruled its previous decision in Jones v. Abraham, 341 Ark. 66, 15 S.W.3d 310 (2000), and the Court of Appeals’s previous decision in Morrow v. Morrow, 270 Ark. 31, 603 S.W.2d 431 (Ark. App. 1980). See Lamontagne.

In 1980, the Court of Appeals observed and held in Morrow that “[t]raditionally appeals from the chancery court are reviewed de novo and there is no requirement of objections to the findings, conclusions and decree of the court to obtain review on appeal.” 270 Ark. at 33, 603 S.W.2d at 432.

In its 2000 decision in Jones, the Arkansas Supreme Court relied on the Court of Appeals’s decision in Morrow to hold that there was no requirement that a contemporaneous objection be made in order to preserve an issue for appeal. Jones, 341 Ark. at 72, 15 S.W.3d at 314. 

Today, in Lamontagne, the Court pointed out that while the Jones decision relied on Morrow, the Morrow decision–as noted by Judge Newbern in his dissent to Morrow–did not rely on any authority for its proposition that an argument can be raised in an appeal from a chancery court decision that was not made below.  In overruling Jones and Morrow, the Court relied, in part, on its 1951 decision in Umberger v. Westmoreland, 218 Ark. 632, 645, 238 S.W.2d 495, 502 (1951), in which the Court held: “we unanimously hold that in cases hereafter tried, all objections to evidence and witnesses must be made in a timely manner in the trial court, and if not so made, such objections will be considered as waived when the case reaches us on appeal.”

From the time the Umberger decision was handed down, more than fifty years ago, the Arkansas Supreme Court has consistently held that “it is incumbent on the parties to raise arguments initially to the circuit court and to give that court an opportunity to consider them.” see Roberts v. Yang, 2010 Ark. 55, at 6, ___ S.W.3d ___; see also Lamontagne, supra.  The Court’s decision today overruling previous appellate court decisions inconsistent with this position confirms that the Court has no plans to waiver from this well-settled rule, as it is frequently requested to do by attorneys.

Judge Wills, in a concurring opinion, which was joined by Judge Danielson, expresses some concern that the Court had to deal with this issue:

It is both remarkable and troubling that this question persists and this court must again clarify the necessity of raising issues below to preserve them for appeal.  I write separately to “call attention of the Bench and Bar” to this issue, as this court did in Umberger over half a century ago.

Lamontagne, 2010 Ark. 190, at 13 (Wills, J., Danielson, J., concurring).

It is hopeful that the Court’s opinion today will alleviate any confusion that caused concern on the part of the concurring justices–a confusion that, at least in part, was caused by the appellate courts’ decisions in Jones and Morrow.

Arkansas Court of Appeals Dismisses Case without Prejudice for Lack of Final Order; Court Notes that Only Documents From the Record May be Included in an Appellant’s Addendum

~ Tasha C. Taylor ~ 5 Comments

Today’s unpublished per curiam from the Court of Appeals (en banc)–Bank of the Ozarks v. Jim Wood Co., Case No. CA08-1488–serves as a reminder to practitioners of the necessity of appealing from a final order: 

The finality problem arises because the Bank’s claim against Capital has not been adjudicated, non-suited, or otherwise resolved by the circuit court. Under Ark. R. Civ. P. 54(b), an order that fails to adjudicate all of the claims as to all of the parties is not final for purposes of appeal. Although the circuit court may direct entry of a final judgment as to fewer than all of the parties by executing a Rule 54(b) certificate, that was not done here. In the absence of a final order, we must dismiss the appeal for lack of jurisdiction. See generally Hodges v. Huckabee, 333 Ark. 247, 968 S.W.2d 619 (1998).

The Court dismissed the appeal without prejudice.

In addition to the lack of a final order, the Court noted that the appellant’s addendum contained documents that were not included in the record on appeal.  The Court’s per curiam also reminds practitioners that Arkansas Appellate Courts do not consider documents included in an appellant’s addendum that are not contained in the record.  See, e.g., Union Pac. R.R. v. Barber, 356 Ark. 268, 149 S.W.3d 325 (2004); Barnett v. Monumental Gen. Ins. Co., 354 Ark. 692, 128 S.W.3d 803 (2003); Clark v. Pine Bluff Civ. Serv. Comm’n, 353 Ark. 810, 120 S.W.3d 541 (2003).