Author: Mike Newman

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.

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

SCOA: Bank-Customer Arbitration Provision Unenforceable Due to Lack of Mutuality

Bank of the Ozarks, Inc. v. Walker, 2016 Ark. 116, 487 S.W.3d 808 (2016).

Circuit court denied banks’ motion to enforce arbitration agreement in class action filed by customers. The Supreme Court of Arkansas affirmed holding that the arbitration agreement was unenforceable because there was no mutuality of obligation.

The supreme court noted that the agreement required the bank’s customers to pay all of the bank’s expenses incurred in good faith relating to the agreement, yet it did not impose that same obligation on the bank. Continue reading SCOA: Bank-Customer Arbitration Provision Unenforceable Due to Lack of Mutuality

SCOA: Divorce Decree with Property Distribution Agreement Option is Still Final and Appealable

Davis v. Davis, 2016 Ark. 64, 487 S.W.3d 803 (2016).

Divorce decree held in part that all martial property was to be sold at public auction within 90 days. It further held that any agreement of the parties as to division of personal property would be honored and that otherwise it was to be inventoried and sold.

On appeal, the question of whether this was a final and appealable judgment was addressed.

The Arkansas Supreme Court held that it was a final judgment notwithstanding that the parties were permitted to reach agreements as to some of the property.

Continue reading SCOA: Divorce Decree with Property Distribution Agreement Option is Still Final and Appealable

SCOA: Imprisonment for Failure to Pay Requires Finding Ability to Pay


Stehle v. Zimmerebner, 2016 Ark. 290, 497 S.W.3d 188 (2016).

Appellant appealed circuit court order holding her in contempt for making insufficient efforts to comply with order to pay child support arrearage.

The circuit court ordered appellant held in detention every weekend until she made “proper effort” to pay off the sums previously ordered. Its order said it would take into account substantial payment, additional employment, and other actions showing that she was taking the obligation seriously.

The Arkansas Supreme Court reversed and remanded holding that it is in violation of the Arkansas Constitution to imprison a debtor for failing to pay money without finding that she has an ability to pay. Ark. Const. art. 2, § 16. 

Continue reading SCOA: Imprisonment for Failure to Pay Requires Finding Ability to Pay