Category: Cases

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.”

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

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

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