(Non) Effect of Bankrupt Defendant on Finality of Order: Jackson, et al. v. Iberiabank

~ Andy Taylor

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.

Creating Bookmarks in Adobe

~ Andy Taylor

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.

Hallelujah! (In other words, the Arkansas Supreme Court is abolishing the abstract and addendum requirement.)

Arkansas Justice Building--Home of the Arkansas Supreme Court and Arkansas Court of Appeals
~ Andy Taylor

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.  

Brief Components

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 TypeWord Count Limit
Appellant’s Brief8,600
Appellee’s Brief8,600
Reply Brief2,875
Appellee’s/Cross-Appellant’s Brief14,325
Reply/Cross-Appellee’s Brief11,475

 

ORIGINAL POST

As Justice Rhonda Wood described it on Twitter, there was some “HUGE” news from the Arkansas Supreme Court this morning:

Arkansas Supreme Court

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!

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.

Second Annual 2019 Justice Donald L. Corbin Appellate Symposium to be Held in Fayetteville March 28th-29th

~ Tasha C. Taylor

The Second Annual 2019 Justice Donald L. Corbin Appellate Symposium will be held at the University of Arkansas School of Law in Fayetteville on Thursday, March 28th through Friday, March 29th, 2019.

Speakers this year include a number of federal and state court judges from courts across the country.  The speakers for the event are as follows:

  • Mr. Howard Bashman, Offices of Howard J. Bashman
  • Mr. Kannon Shanmugam, Williams & Connolly
  • Judge Ralph R. Erickson, Eighth Circuit Court of Appeals
  • Chief Judge Lavenski Smith, Eighth Circuit Court of Appeals
  • Judge Duane Benton, Eighth Circuit Court of Appeals
  • Judge Jane Stranch, Sixth Circuit Court of Appeals
  • Mr. A. Clifford Edwards, Edwards, Frickle & Culver
  • Judge James Graves, Fifth Circuit Court of Appeals
  • Judge Michael Brown, Arizona Court of Appeals
  • Judge Lucinda Jesson, Minnesota Court of Appeals
  • Judge Robert Gladwin, Arkansas Court of Appeals
  • Judge Mary Briscoe, Tenth Circuit Court of Appeals
  • Joe Regalia, King & Spalding
  • Lee Rudofsky, Wal Mart
  • Tasha Taylor, Taylor & Taylor Law Firm
  • Abigail Perdue, Wake Forest University School of Law
  • Tim Cullen
  • Brian Brooks

The event website where you can find more information about the event and the speakers is https://customxm.lpages.co/pcbf-symposium-registration-em/.

If you register to attend the event by March 1st, you will receive a $50 discount on your registration fee.

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” →

First Annual Justice Donald L. Corbin Appellate Symposium to Be Held in March

~ Tasha C. Taylor

The Pulaski County Bar Foundation is presenting the first annual Justice Donald L. Corbin Appellate Symposium at the UA Little Rock Bowen School of Law on Thursday, March 29, 2018 and Friday, March 30, 2018.  The complete brochure and online registration form can be found here.

The planning committee–consisting of Dorcy Kyle Corbin, Jennifer Corbin, and Judge Herbert T. Wright, Jr.–has put together an outstanding program, which includes an impressive list of speakers, as shown in the lineup below:

2018 Corbin Symposium Speakers

 

Electronic Filing of Appellate Briefs is now Mandatory in Arkansas Appellate Courts

~ Andy Taylor

The Arkansas Supreme Court has recently issued a per curiam opinion making electronic filing of appellate briefs mandatory as of January 1, 2018.  In its per curiam, the Court made a few changes and clarifications to the pilot project (which had been in place since September 15, 2016).  The Court also slightly modified the method for requesting clerk’s extensions.  We’ve posted the details of these changes (along with a couple of forms) below.  As always, this is just a summary, so please refer to the text of the rules themselves when filing a brief.

Overview of Electronic Filing of Briefs

Here are the key points you need to know if you are filing a brief electronically:

  • Briefs are filed through the eFlex system.
  • The brief must be electronically filed prior to midnight on the due date.
  • The table of contents must contain hyperlinks to the beginning of each major section of the brief.  The “major sections” are:
    • Informational statement and jurisdictional statement;
    • Points on appeal;
    • Table of authorities;
    • Abstract;
    • Statement of the Case;
    • Argument; and
    • Addendum.
  • After the brief is accepted by the court, you must file six paper copies of the brief with the clerk’s office.  In our discussions with the clerk’s office, they have indicated that they prefer that attorneys simply print the file-marked copies (rather than printing clean copies and having the clerk’s office file-mark them).
  • The paper copies are due five calendar days after the brief is filed.  Note that this time period begins with the brief is filed, and not when the brief is accepted by the clerk’s office.
  • We are still serving paper copies of the brief on opposing counsel.  We believe that there is some ambiguity about this in the rules.  Rules 4-4(b)-(e) discuss “service upon opposing counsel,” and seem to imply that the service will be in paper format.  Administrative Order 21, on the other hand, states that “[r]egistered users of the electronic filing system consent to electronic service of electronic documents as the only means deemed to constitute service and such notice of filing is valid and effective service of the document on the registered users and shall have the same legal effect as service by conventional means.”  Until there is some clarity on this, we are continuing to serve opposing counsel in paper format.  We have included a sample of our certificate of service below.

Continue reading “Electronic Filing of Appellate Briefs is now Mandatory in Arkansas Appellate Courts” →

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.