Category: Uncategorized

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.

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.