ACOA: When Serving Attorney via Email, Burden to Establish Receipt Is on Server

Howell v. Arkansas Dept. of Human Service, 2018 Ark. App. 117, 545 S.W.3d 218 (2018).

Background

  • Dependency-neglect proceedings were brought against mother after she was charged with multiple offenses.
  • Department of Human Services filed termination of parental rights petition.
  • At hearing, parent’s attorney appeared and argued for a continuance so he could communicate with his client. He also argued that he never received service.
  • Applicable statute required service under Ark. R. Civ. P. 5, if parent had already been served under Rule 4 (as in this case).
  • DHS argued that it had served attorney with notice of the hearing via email.
  • Attorney said he could not find that he ever received the allegedly sent notice.
  • Trial court did not grant the requested continuance.

Issue

Was DHS required to establish that the email had been received by the attorney or just that it was sent to the attorney?

Ark. R. Civ. P. 5(b)(2)

“… When service is permitted upon an attorney, such service may be effected by electronic transmission, including e-mail, provided that the attorney being served has facilities within his or her office to receive and reproduce verbatim electronic transmissions. Service is complete upon transmission but is not effective if it does not reach the person to be served.”

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ACOA: Rule 9(b) Fraud “Particularity” Pleading Standard Does Not Apply to ADTPA Claim.

Pleasant v. McDaniel – 2018 Ark. App. 254, 550 S.W.3d 8 (2018).

Background

    • State brings Arkansas Deceptive Trade Practices Act (Ark. Code Ann. § 4-88-101, et seq.) case against defendants who were contacting MVA victims to soliciting business for chiropractors
    • Defendants found liable.
  • Appeal argument: ADTPA pleadings were invalid because they did not meet the Rule 9(b) “particularity” requirement.

Issue

Does the Rule 9 “particularity” pleading requirement apply to an ADTPA action?

Rule 9

“(b) Fraud or Mistake; Conditions of Mind. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. …”
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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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