New Appellate Civil Rule 12: Substitution of Parties

There is now in place an appellate procedure rule permitting substitution of parties on appeal. Rule of Appellate Procedure-Civil 12 went into effect on January 1, 2018

Under Rule 12:

  • Substitution. If a party dies after the appellate court acquires jurisdiction of the case, the decedent’s representative may be substituted upon motion filed by the personal representative, any party, or the attorney for the deceased.
  • Suggestion of death. If there is no personal representative, any party may file a suggestion of death on the record. Unless a substitution motion is filed within 90 days, the court may dismiss the appeal or take other appropriate action.
  • Incompetency. If a party becomes incompetent, the party’s representative may be substituted on motion filed with the court.
  • Public officers. When a public officer is a party in his or her official capacity and dies or otherwise ceases to hold office while the case is pending, the officer’s successor is automatically substituted.

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New Rule 45.1: Subpoena for Interstate Depositions and Discovery

As of January 1, 2018, there is a new Rule 45.1 in the Arkansas Rules of Civil Procedure.

Rule 45.1 is an implementation of the Uniform Interstate Depositions and Discovery Act.  The UIDDA has been enacted in about 40 states.

Under Rule 45.1:

  • Procedure:
    • An attorney in a pending out-of-state case may have issued a subpoena (for attending a deposition or for records) in the state where the case is pending.
    • The attorney may then submit the out-of-state subpoena and an Arkansas subpoena form (with the same terms) to the Arkansas clerk.
    • The clerk will then issue the Arkansas subpoena without opening a case. The out-of-state attorney thus does not have to hire Arkansas counsel for the subpoena to be issued.
  • Objections. The Arkansas person served with the subpoena may serve a written objection to the subpoena or discovery sought. If that is done, the requesting party must get an order to proceed further.
  • Arkansas Jurisdiction. Arkansas jurisdiction is invoked (and an Arkansas case would be opened) if needed to enforce or resolve any issues regarding the subpoena.
  • Arkansas Law. The discovery conducted in Arkansas must comply with Arkansas law.

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New Rule 87: Limited Scope Representation

As of December 14, 2017, there is a new Rule 87 in the Arkansas Rules of Civil Procedure.

Under the new rule:

  • Scope of representation may be limited per Rule 1.2(c) of the Arkansas Rules of Professional Conduct.
  • A “notice of limited scope representation” should be filed at the initiation of a proceeding or beginning of the representation.
  • The notice is not required if representation is limited to drafting papers for an otherwise self-represented person. In that case, the attorney is not required to sign the drafted papers but must include a notation saying: “This document was prepared with the assistance of [insert name of attorney], a licensed Arkansas lawyer, pursuant to Arkansas Rule of Professional Conduct 1.2(c).”
  • Termination of the representation does not require court approval. It ends when the attorney files a “notice of completion of limited scope representation.” It must be served on the client.
  • Service is not required on limited-scope attorneys for matters outside the scope of representation.

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ACOA: No Error in Deeming as Admitted Served-But-Not-Filed Admission Request Responses

In the December 11, 2013 case, Hardesty v. Baptist Health, 2013 Ark. App. 731, 431 S.W.3d 327 (2013), the Arkansas Court of Appeals held that there was no abuse of discretion when the circuit court deemed as admitted responses to requests for admission that were properly served but were not filed as requires by Rule 5(c) of the Arkansas Rules of Civil Procedure. 

The appellants argued that deemed admission was not a proper sanction since it was not specifically provided for in Rule 5. The court of appeals disagreed finding the situation to be similar to a failure to timely file an answer to a complaint resulting in a default judgment.

An interesting contrast is the more recent (September 14, 2016) case of Scott v. Scott, 2016 Ark. App. 390, 499 S.W.3d 653 (2016). In this case, the appellee served but failed to file responses to requests for admission. However, he did file a notice that the responses had been sent to opposing counsel. Continue reading ACOA: No Error in Deeming as Admitted Served-But-Not-Filed Admission Request Responses

ACOA: Summons Invalid for Omitting Defendant Name in “Directed to”

 

Union Pac. R.R. Co. v. Skender, 2016 Ark. App. 206, 489 S.W.3d 176 (2016).

Arkansas Court of Appeals ruled that employee’s summons in his Federal Employees’ Liability Act suit against employer was invalid.

The “directed to” portion of the summons only referred to the name and address of the agent for service. It did not include the name or address of the defendant.

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