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During the talk, I will focus on significant Arkansas civil procedure appellate decisions and noteworthy rule changes from 2011 and 2012. You’ll be able to see the PowerPoint presentation through the web. The written materials include a summary I prepared of 30 or so noteworthy civil procedure cases. You can register at the link below.
Just before the trial began, the plaintiff requested a voluntary dismissal. Because the jury had already been sworn, the circuit court entered an order charging the plaintiff with the costs of the court interpreter and with jury expenses. The order was amended to substitute the plaintiff’s counsel as the party responsible for paying the trial costs. On appeal, the supreme court held that the circuit court order was in error. Under Ark. R. Civ. P. 41(d), when a party refiles an action after a voluntary or involuntary dismissal, the court in the new action “may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order.” However, the circuit court in the first action does not have authority to impose Rule 41(d) costs. That order can only be made in the later action. In this case, since the plaintiff had not yet filed a new lawsuit, the circuit court’s order assessing Rule 41 costs was in error. Arkansas Judiciary link (pdf). This is a very significant mid-2011 case. In the case, In re Estate of Stinnett, 2011 Ark. 278, — S.W.3d —-, decided on June 23, 2011, the supreme court held that an interlocutory order which is immediately appealable per Ark. R.App. P.–Civ. 2(a) can only be appealed within the time specified in Ark. R.App. P.–Civ. 4. Appellant’s notice of appeal was filed within 30 days after the circuit court’s final distribution order, but appellant’s only point for reversal was a challenge to an earlier order striking a filing made by appellant. The supreme court held that since the earlier order was immediately appealable, either as an order striking a pleading or as an immediately appealable probate order per A.C.A. § 28-1-116, the time frame in which it could have been appealed was 30 days. Appellant’s appeal was thus untimely. Prior to this decision, the consensus was that an interlocutory order which is immediately appealable (most interlocutory orders are not) could either be appealed right away or the party could wait and challenge that order on appeal after a final order is issued. That appears to no longer be the case. Under Stinnett, if an order is one of those that Ark. R.App. P.–Civ. 2(a) says is immediately appealable, it cannot be challenged on appeal unless it is appealed within the Rule 4 time frame (usually 30 days). Arkansas Judiciary link (pdf).
In Hayes v. Otto, 2011 Ark. App. 564 (decided September 28, 2011), a father appeals a circuit court order concerning overdue child support payments owed to him by the child’s mother. The appellant father contended that the circuit court erred in several ways in its ruling computing the amount of overdue child support payments owed. However, the court of appeals determined that the case was not ripe for appeal due to lack of a final order because the judgment did not specific a specific monetary amount being awarded. The circuit court’s judgment stated in part the following (bold added):
Citing Hernandez v. Hernandez, 371 Ark. 323, 265 S.W.3d 746 (2007), the court of appeals noted that a money judgment is required to contain a specific dollar amount in order to be executed. If a judgment only sets out a formula for determining the amount by which a judgment may be calculated, then it is not a final order. Because there was not a final order, the appeal was dismissed without prejudice. Arkansas Judiciary link (pdf).
Generally under Rule 41(b), a dismissal will be deemed to be with prejudice if the case has previously been dismissed. (Sometimes this is referred to as the “two-dismissal rule.”) But in this case, notwithstanding what it said was the “literal” language of the rule, the supreme court held that a previous subject matter jurisdiction dismissal will not be considered the type of dismissal to which Rule 41(b) applies. The plaintiff in this case brought a $26,000 action alleging breach of a service contract. Even though the complaint was captioned with “Circuit Court,” it was inadvertently filed in district court. Since a district court case cannot seek over $5,000.00 in damages, the case was dismissed. It was then refiled in circuit court. At a later date, it was dismissed from circuit court due to a fatally flawed summons. The supreme court held that the dismissal from circuit court was without prejudice because the earlier district court dismissal was only due to a lack of subject matter jurisdiction. Arkansas Judiciary link (pdf). |
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© 2010-2012 Michael T. Newman (Mike Newman). DISCLAIMER: There is no warranty given regarding any of the information on this website. Information on the site may no longer be accurate due to changes in the law. No attorney-client relationship is created by this website. Mike Newman is solely responsible for this website; it is not affiliated with any law firm. |
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At noon on Wednesday, April 25, 2012, I will be doing a 1-hour CLE webinar called “Developments in Arkansas Civil Procedure” for the 
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This domestic relations court of appeals case from last fall highlights an important rule concerning judgments.
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