Author: Mike Newman

ACOA: Appeal Clock Starts 30 Days After Filing Ungranted Rule 60 Motion

Failure to comply with appellate filing deadlines will almost guarantee a dismissal on appeal. Here is a case in point.

In Reimer v. Ragsdale, 2011 Ark. App. 81, decided on February 2, 2011, appellant David Reimer brought suit against appellees Sandra and Eldon Ragsdale because of alleged defects in a house he bought from them.

Here are the key dates:

  • November 5, 2009 – circuit court granted the Ragsdales’ motion to dismiss.
  • November 18, 2009 – Reimer filed a motion for relief from the judgment per Rule 60 of the Arkansas Rules of Civil Procedure.
  • January 14, 2010 – the Rule 60 motion was denied.
  • February 11, 2010 – Reimer filed a notice of appeal.

The Arkansas Court of Appeals dismissed the appeal as untimely. Continue reading ACOA: Appeal Clock Starts 30 Days After Filing Ungranted Rule 60 Motion

SCOA: Sovereign Immunity Trumps County Court Road Jurisdiction

In Arkansas Game and Fish Com’n v. Eddings, — S.W.3d —-, 2011 Ark. 47, issued February 9, 2011, the Arkansas Supreme Court held that the Arkansas Constitution’s grant of jurisdiction to county courts over county roads does not create an exception to the State’s sovereign immunity from suit.

Appellee Ben Eddings owns about 40 acres of property near the Buffalo National River in Newton County. The property is landlocked on two sides by National Park Service property and on two sides by the Gene Rush Wildlife Management Area, owned by appellant Arkansas Game and Fish Commission (AGFC), a state agency.

On April 20, 2005, Eddings filed a petition with the Newton County Court to establish a road across the AGFC property. On January 9, 2006, the county court entered an order permitting Eddings ingress and egress across the AGFC land. AGFC unsuccessfully sought dismissal on the basis of sovereign immunity, and then appealed to the circuit court. The Newton County Circuit Court determined that article 7, section 28 of the Arkansas Constitution, granting to county courts exclusive original jurisdiction over county roads, prevailed over the State’s claim of sovereign immunity.

The Arkansas Supreme Court disagreed. Continue reading SCOA: Sovereign Immunity Trumps County Court Road Jurisdiction

SCOA: Unallocated Joint Offer of Judgment Invalid When Speculation Is Required

In Pope v. Overton, 2011 Ark. 11, issued January 20, 2011 (yesterday), the Arkansas Supreme Court held that Rule 68 does not apply to an unallocated joint offer of judgment by multiple defendants if the circuit court must speculate as to how the offer was to be divided by the defendants.

Appellants Ricky and Christine Pope brought suit against Appellees Michael Overton and Entergy Arkansas, Inc. asserting conversion and trespass causes of action because of power lines placed on the Popes’ property without permission.

Prior to trial, Entergy and Overton made a joint offer of judgment to the Popes for $2,500.00. At trial, Entergy was granted a directed verdict. Overton stipulated to liability on conversion and was granted a directed verdict for damages of $566.86. The jury rejected the trespass claim. Continue reading SCOA: Unallocated Joint Offer of Judgment Invalid When Speculation Is Required

ACOA: Court Must Weigh Circumstances Before Imposing Discovery Sanctions

In the November 17, 2010 opinion Young v. Kajkenova, 2010 Ark. App. 783, the Arkansas Court of Appeals held that a circuit court must weigh the facts and circumstances before making a discovery sanctions order.

In November 2008, appellant and estate representative Lawrence Young, refiled his previously nonsuited medical malpractice lawsuit.  After appellee Oumitana Kajkenova, M.D. filed his answer, the circuit court entered a scheduling order and set an October 27, 2009 jury trial.

Kajkenova propounded discovery in January 2009. In June, Kajkenova still had not received any responses. Kajkenova’s attorney sent repeated letters to Young’s attorney asking for the responses and stating that he wanted to depose any experts Young would call at trial.

Kajkenova finally filed a motion to compel on August 10, 2009 to which Young did not respond. On September 4, 2009, the court entered an order compelling responses to the discovery requests and requiring that all Young’s witnesses be made available for deposition by September 25, 2009. Continue reading ACOA: Court Must Weigh Circumstances Before Imposing Discovery Sanctions

SCOA: Appeal of 1st Dismissal, If Affirmed, Bars Further Pleading

In the December 9, 2010 opinion Orr v. Hudson, 2010 Ark. 484, the Arkansas Supreme Court held that when a plaintiff appeals a dismissal when he or she had the opportunity to plead further (i.e., by filing a new lawsuit), an affirmance of the dismissal means that the dismissal is with prejudice.

Appellant Tasha Orr, individually and as an estate representative, brought a medical negligence and wrongful death suit in Lee County Circuit Court against two doctors, Appellee Stephen Hudson, M.D., and Appellee Timothy Calicott, M.D. Per Rule 12(b)(3) of the Arkansas Rules of Civil Procedure, the Lee County Circuit Court granted the doctors’ motion to dismiss the complaint due to improper venue. Orr appealed, and the dismissal was affirmed.

Orr then filed her complaint in Faulkner County Circuit Court. The circuit court granted the doctors’ motion to dismiss that complaint on the basis that Orr had waived her right to plead further when she appealed the first dismissal and there was an affirmance. In Orr v. Calicott, 2009 Ark.App. 857, the Arkansas Court of Appeals disagreed, affirming the circuit court in part and reversing and remanding in part. Continue reading SCOA: Appeal of 1st Dismissal, If Affirmed, Bars Further Pleading