Opinion
Delivered January 28, 1999
The 1998 report of the Arkansas Supreme Court Committee on Civil Practice contained a number of suggested rules changes. The Committee's suggestions were published in our per curiam order of November 5, 1998, so that members of the bench and bar could have an opportunity to comment. We thank those who took the time to review the proposals and submit comments.
The proposals, with only minor revisions, will be implemented. We again express our gratitude to the members of our Civil Practice Committee, chaired by Judge John Ward, and to the Committee Reporter, Professor John J. Watkins, for the Committee's diligence in performing the important task of keeping our civil rules current, efficient, and fair.
The adoption of the revised Official Probate Forms is addressed in a separate order. As noted in our earlier order, the adoption of the amendment to Ark. R. Civ. P. 5 supersedes Ark. Code Ann. §§ 16-20-109 and 16-58-131.
We adopt the following amendments to be effective immediately, and republish the rules as set out below.
Arkansas Rules of Civil Procedure1. Rule 4 is amended by deleting the word "a" before the word "summons" in subdivision (c)(2) and by revising subdivision (e)(3) to read as follows:
By mail as provided in subdivision (d)(8) of this rule;
The Reporter's Notes accompanying Rule 4 are amended by adding the following: Addition to Reporter's Notes, 1999 Amendment: Subdivision (c)(2) has been amended by deleting the word "a" before the word "summons." This amendment is intended to make plain that private process servers may be appointed by standing order as well as on a case-by-case basis. In addition, subdivision (e)(3) has been amended to provide that service by mail outside the state in accordance with the requirements of subdivision (d)(8), which governs service by mail inside the state. This change makes the two provisions consistent.
2. Ark. Code Ann. §§ 16-20-109 and 16-58-131 are deemed superseded.
3. Rule 5 is amended by revising subdivision (b) to read as follows:
(b) Service: How Made. (1) Whenever under this rule or any statute service is required or permitted to be made upon a party represented by an attorney, the service shall be upon the attorney, except that service shall be upon the party if the court so orders or the action is one in which a final judgment has been entered and the court has continuing jurisdiction.
(2) Except as provided in paragraph (3) of this subdivision, service upon the attorney or upon the party shall be made by delivering a copy to him or by sending it to him by regular mail at his last known address or, if no address is known, by leaving it with the clerk of the court. Delivery of a copy for purposes of this paragraph means handing it to the attorney or to the party; by leaving it at his office with his clerk or other person in charge thereof; or, if the office is closed or the person has no office, leaving it at his dwelling house or usual place of abode with some person residing therein who is at least 14 years of age. Service by mail is presumptively complete upon mailing. When service is permitted upon an attorney, such service may be effected by electronic transmission, provided that the attorney being served has facilities within his office to receive and reproduce verbatim electronic transmissions, or such service may be made by a commercial delivery service which maintains permanent records of actual delivery.
(3) If a final judgment or decree has been entered and the court has continuing jurisdiction, service upon a party by mail shall comply with the requirements of Rule 4(d)(8)(A).
Rule 5 is further amended by revising paragraph (2) of subdivision (c) to read as follows:
(2) If the clerk's office has a facsimile machine, the clerk shall accept facsimile transmissions of any paper filed under appearing on a facsimile copy shall be presumed authentic until proven otherwise. The clerk shall stamp or otherwise mark a facsimile copy as filed on the date and time that it is received on the clerk's facsimile machine during the regular hours of the clerk's office or, if received outside those hours, at the time the office opens on the next business day.
The Reporter's Notes accompanying Rule 5 are amended by adding the following:
Addition to Reporter's Notes, 1999 Amendment:
Subdivision (b) has been divided into three paragraphs, but only one change has been made. Previously, service by regular mail was sufficient in all cases. See Office of Child Support v. Ragland, 330 Ark. 280, 954 S.W.2d 218 (1997) (motion requesting judgment for unpaid child support). Paragraph (2) provides for service by regular mail as a general rule; however, paragraph (3) creates an exception by incorporating the requirements of Rule 4(d)(8)(A) for service by mail on a party when, as in Ragland, a final judgment or decree has been entered and the court has continuing jurisdiction. In this situation, paragraph (1) requires, as did the prior version of the rule, that service be made on the party, not his or her attorney. Ark. Code Ann. § 16-58-131, which addressed these issues and other matters now governed by Rules 4 and 5, has been deemed superseded.
Several changes have been made in subdivision (c)(2) concerning facsimile filings. The statute on which the rule was originally based, Ark. Code Ann. § 16-20-109, has been deemed superseded.
The first sentence of subdivision (c)(2) has been amended to require any clerk with a facsimile machine to accept facsimile filings of any paper filed under this rule and to allow the clerk that a clerk with a facsimile machine "may accept" papers filed by fax. Apparently, some clerks refused to accept papers filed in this manner even though they had the necessary equipment. Also, language in the first sentence requiring that an original document be substituted for a fax filing if the latter were not made on bond-type paper has been deleted. This provision was considered unnecessary in light of improvements in the quality of fax machines.
The third sentence of subdivision (c)(2) has been amended to require that the clerk stamp or otherwise mark the facsimile copy as filed on the date and time that it is received in the clerk's office or, if received when the office is closed, on the next business day. The last sentence of the prior version of the rule, which provided that "[t]he date and time printed by the clerk's facsimile machine on the transmitted copy shall be prima facie evidence of the date and time of filing," has been deleted because the date and time are printed by the sender's facsimile machine, not the clerk's.
4. Rule 26 is amended by inserting the words "any books, documents, or other tangible things and the identity and location of" between the words "of" and "persons" in the first sentence of paragraph (1) of subdivision (b), and by revising paragraph (2) of subdivision (e) to read as follows:
(2) A party is under a duty seasonably to amend a prior response to an interrogatory, request for production, or request for admission if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. The Reporter's Notes accompanying Rule 26 are amended by adding the following:
Addition to Reporter's Notes, 1999 Amendment: The first sentence of subdivision (b)(1) has been revised to correct an oversight that dates to the rule's adoption. As amended, this sentence provides for discovery not only as to persons who may have knowledge of discoverable matters or who may be called as witnesses at trial, but also as to "books, documents, or other tangible things." The new language is taken from Federal Rule 26(b)(1), on which the Arkansas rule was based.
Subdivision (e)(2) has been revised to track the corresponding federal rule, as amended in 1993. The duty to supplement, while imposed on a "party," applies whether the corrective information is learned by the client or by the attorney. Supplementation need not be made as each new item of information is learned but should be made at appropriate intervals during the discovery period, and with special promptness as the trial date approaches. Under the revised rule, the obligation to supplement applies to interrogatories, requests for production, and requests for admissions, but not ordinarily to deposition testimony. However, supplementation is required under subdivision (e)(1) with respect to changes in the opinions of experts, whether in response to interrogatories under subdivision (b)(4)(A) or in a deposition.
The obligation to supplement under subdivision (e)(2) arises whenever a party learns that its prior responses are "in some material respect" incomplete or incorrect. The "knowing concealment" standard found in the former version of the rule has been deleted. A formal amendment of a response is not necessary if the corrective or supplemental information has been made known to the parties in writing or during the discovery process, as when a witness not previously disclosed is identified during the taking of a deposition.
5. Rule 33 is amended by adding the following sentence at the end of subdivision (d):
A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained.
The Reporter's Notes accompanying Rule 33 are amended by adding the following:
Addition to Reporter's Notes, 1999 Amendment:
Subdivision (d) has been amended by adding the last sentence. Taken from the corresponding federal rule, this provision makes clear that a party responding to interrogatories by producing business records has the duty to specify, by category and location, the records from which answers to interrogatories can be derived. Without such guidance, the burden of deriving the answers would not be substantially the same for the party serving the interrogatories as for the responding party. A similar requirement has been added to Rule 34(b).
6. Rule 34(b) is amended by numbering the two paragraphs as (1) and (2), respectively; by adding the phrase "and inspection permitted of the remaining parts" at the end of the fourth sentence of paragraph (2); and by adding the following as new paragraph (3):
(3) A party who produces documents for inspection shall
(A) organize and label them to correspond with the categories in the production request or
(B) produce them as kept in the usual course of business if the party seeking discovery can locate and identify the relevant records as readily as can the party who produces the documents.
The Reporter's Notes accompanying Rule 34 are amended by adding the following:
Addition to Reporter's Notes, 1999 Amendment: The first and second paragraphs of subdivision (b) have been numbered and a new paragraph (3) added. The fourth sentence of the second paragraph has been amended to require a party who objects to part of a request for production to permit inspection with respect to the unobjectionable portions. The corresponding federal rule was so amended in 1993. A similar requirement for answers to interrogatories appears in Rule 33(b)(1).
The new third paragraph, based on Federal Rule 34(b), provides that a party from whom production is sought must (1) organize and label the documents in accordance with the categories set out in the production request, or (2) produce them as kept in the usual course of business. However, the second option is available only if "the party seeking discovery can locate and identify the relevant documents as readily as can the party who produces them." This requirement is intended to eliminate a problem that has arisen under the federal rule, which appears to give the producing party the right to produce records as kept in the usual course of business even though the party seeking discovery would be forced to sift through a jumble of documents in order to find those that are responsive to the production request. A similar requirement has been added to Rule 33(d), which allows the production of business records in response to interrogatories.
7. Rule 41 is amended by revising subdivision (a) to read as follows:
(a) Voluntary Dismissal; Effect Thereof. (1) Subject to the provisions of Rule 23(d) and Rule 66, an action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court.
Although such a dismissal is a matter of right, it is effective only upon entry of a court order dismissing the action.
(2) A voluntary dismissal under paragraph (1) operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based upon or including the same claim, unless all parties agree by written stipulation that such dismissal is without prejudice.
(3) In any case where a set-off or counterclaim has been previously presented, the defendant shall have the right of proceeding on his claim although the plaintiff may have dismissed his action.
Rule 41 is further amended by adding the following new sentence at the end of subdivision (d):
For purposes of this rule, the term "costs" means those items taxable as costs under Rule 54(d)(2).
The Reporter's Notes accompanying Rule 41 are amended by adding the following:
Addition to Reporter's Notes, 1999 Amendment:
Subdivision (a) has been divided into three numbered paragraphs and revised to reflect case law. In Blaylock v. Shearson Lehman Brothers, Inc., 330 Ark. 620, 954 S.W.2d 939 (1997), the Supreme Court noted that it had "long interpreted [Rule 41(a)] as creating an absolute right to a nonsuit prior to submission of the case to the jury or to the court." In the same case, the Court held that "a court order is necessary to grant a nonsuit and the judgment or decree must be entered to be effective."
A new sentence has been added to subdivision (d) defining "costs" as those recoverable under Rule 54(d)(2), a new provision. A definition was deemed advisable in light of continuing confusion as to expenses that can be taxed as costs. See, e.g., Wood v. Tyler, 317 Ark. 319, 877 S.W.2d 582 (1994); Sutton v. Ryder Truck Rental, Inc., 305 Ark. 231, 807 S.W.2d 905 (1991).
8. Rule 50 is amended by revising subdivision (b) to read as follows:
(b) Motion for Judgment Notwithstanding the Verdict.
(1) Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion.
(2) Not later than 10 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned, such party within 10 days after the jury has been discharged may move for judgment in accordance with his motion for directed verdict. A motion made before entry of judgment shall become effective and be treated as filed on the day after the judgment is entered. If the court neither grants nor denies the motion within 30 days of the date on which it is filed or treated as filed, it shall be deemed denied as of the 30th day.
(3) A motion for a new trial may be joined with a motion for judgment notwithstanding the verdict, or a new trial be prayed in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned, the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.
The Reporter's Notes accompanying Rule 50 are amended by adding the following:
Addition to Reporter's Notes, 1999 Amendment:
Subdivision (b) has been divided into three numbered paragraphs. The new second sentence of paragraph (2) makes plain that a pre-judgment motion for JNOV is permissible. This is so under the corresponding federal rule, but prior Arkansas case law suggested that such a motion was ineffective. See Benedict v. National Bank of Commerce, 329 Ark. 590, 951 S.W.2d 562 (1997) (motion for new trial). The new third sentence provides that a motion for JNOV not ruled on by the court within 30 days of its filing (or within 30 days of the date it is treated as filed) is "deemed denied as of the 30th day." This provision also appears in Rule 4(b)(1) of the Rules of Appellate Procedure — Civil but was added here as a reminder to counsel.
9. Rule 52 is amended by revising subdivision (b) to read as follows:
(b) Amendment. (1) Upon motion of a party made not later than 10 days after entry of judgment, the court may amend its findings of fact or make additional findings and may amend the judgment accordingly. The motion may be made with a motion for a new trial pursuant to Rule 59. A motion made before entry of judgment shall become effective and be treated as filed on the day after the judgment is entered. If the court neither grants nor denies the motion within 30 days of the date on which it is filed or treated as filed, it shall be deemed denied as of the 30th day.
(2) When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the trial court an objection to such findings or has made a motion to amend them or a motion for judgment.
The Reporter's Notes accompanying Rule 52 are amended by adding the following:
Addition to Reporter's Notes, 1999 Amendment:
Subdivision (b) has been divided into two numbered paragraphs. The new third sentence of paragraph (1) makes plain that a pre-judgment motion to amend findings or to make additional findings is permissible. This is so under the corresponding federal rule, but prior Arkansas case law suggested that such a motion was not effective. See Benedict v. National Bank of Commerce, 329 Ark. 590, 951 S.W.2d 562 (1997) (motion for new trial). The new fourth sentence provides that a motion to amend findings or for additional findings not ruled on by the court within 30 days of its filing (or within 30 days of the date it is treated as filed) is "deemed denied as of the 30th day." This provision also appears in Rule 4(b)(1) of the Rules of Appellate Procedure — Civil but was added here as a reminder to counsel.
10. Rule 54 is amended by revising subdivision (d) to read as follows:
(d) Costs. (1) Costs shall be allowed to the prevailing party if the court so directs, unless a statute or rule makes an award mandatory.
(2) Costs taxable under this rule are limited to the following: filing fees and other fees charged by the clerk; fees for service of process and subpoenas; fees for the publication of warning orders and other notices; fees for interpreters appointed under Rule 43; witness fees and mileage allowances as provided in Rule 45; fees of a master appointed pursuant to Rule 53; fees of experts appointed by the court pursuant to Rule 706 of the Arkansas Rules of Evidence; and expenses, excluding attorney's fees, specifically authorized by statute to be taxed as costs.
The Reporter's Notes accompanying Rule 54 are amended by adding the following:
Addition to Reporter's Notes, 1999 Amendment: A new paragraph has been added to subdivision (d) defining the term "costs." A definition was deemed advisable in light of continuing confusion as to expenses that can be taxed as costs. See, e.g., Wood v. Tyler, 317 Ark. 319, 877 S.W.2d 582 (1994); Sutton v. Ryder Truck Rental, Inc., 305 Ark. 231, 807 S.W.2d 905 (1991).
11. Rule 55 is amended by replacing the word "appear" in subdivision (a) with the word plead."
The Reporter's Notes accompanying Rule 55 are amended by adding the following:
Addition to Reporter's Notes, 1999 Amendment:
Subdivision (a) has been amended by replacing the word "appear" with the word "plead," the terminology used in the corresponding federal rule. This revision, while minor, is intended to eliminate potential confusion stemming from the fact that appearance is also relevant under subdivision (b), which requires notice of a hearing on a motion for default judgment if the party against whom the judgment is sought "has appeared in the action. . . ."
In addition, use of the word "plead" in subdivision (a) indicates that the phrase "otherwise appear" has independent meaning. Arkansas cases suggest that this phrase means the same thing as an appearance, in which case it would be a redundancy. E.g., Tapp v. Fowler, 291 Ark. 309, 724 S.W.2d 176 (1987) (defendant appeared or otherwise defended within meaning of Rule 55(a) by filing motion to dismiss and motion for summary judgment). Under the federal rule, the phrase "otherwise defend" refers to motions, which by definition are not pleadings. E.g., Bass v. Hoagland, 172 F.2d 205 (5th Cir.), cert. denied, 338 U.S. 816 (1949). See also Ark. R. Civ. P. 7(a) (b) (distinguishing pleadings and motions). Amended subdivision (a) reflects the dichotomy recognized by the federal courts.
12. Rule 59 is amended by deleting the semicolon and the words "Amendment of Judgments" from the title and by adding the following two sentences at the end of subdivision (b):
A motion made before entry of judgment shall become effective and be treated as filed on the day after the judgment is entered. If the court neither grants nor denies the motion within 30 days of the date on which it is filed or treated as filed, it shall be deemed denied as of the 30th day.
The Reporter's Notes accompanying Rule 59 are amended by adding the following:
Addition to Reporter's Notes, 1999 Amendment: Subdivision (b) has to amended by adding a new second sentence that effectively overturns Benedict v. National Bank of Commerce, 329 Ark. 590, 951 S.W.2d 562 (1997), which held that a motion for new trial filed before entry of judgment is ineffective. As amended, the rule reflects the practice in the federal courts. The new third sentence provides that a motion for new trial not ruled on by the court within 30 days of its filing (or within 30 days of the date it is treated as filed) is "deemed denied as of the 30th day." This provision also appears in Rule 4(b)(1) of the Rules of Appellate Procedure — Civil but was added here as a reminder to counsel.
In addition, the title of the rule has been modified by striking the words "amendment of judgments." A provision in the original version of the rule dealing with this issue was deleted in 1983. See Addition to Reporter's Notes, 1983 Amendment.
Arkansas Rules of Appellate Procedure — CivilRule 4 is amended to read as follows:
(a) Time for Filing Notice of Appeal. Except as otherwise provided in subdivision (b) of this rule, a notice of appeal shall be filed within thirty (30) days from the entry of the judgment, decree or order appealed from. A notice of cross-appeal shall be filed within ten (10) days after receipt of the notice of appeal, except that in no event shall a cross-appellant have less than thirty (30) days from the entry of the judgment, decree or order within which to file a notice of cross-appeal. A notice of appeal filed after the trial court announces a decision but before the entry of the judgment, decree, or order shall be treated as filed on the day after the judgment, decree, or order is entered.
(b) Extension of Time for Filing Notice of Appeal. (1) Upon timely filing in the trial court of a motion for judgment notwithstanding the verdict under Rule 50(b) of the Arkansas Rules of Civil Procedure, a motion to amend the court's findings of fact or to make additional findings under Rule 52(b), or a motion for a new trial under Rule 59(a), the time for filing a notice of appeal shall be extended for all parties. The notice of appeal shall be filed within thirty (30) days from entry of the order disposing of the last motion outstanding. However, if the trial court neither grants nor denies the motion within thirty (30) days of its filing, the motion shall be deemed denied by operation of law as of the thirtieth day, and the notice of appeal shall be filed within thirty (30) days from that date.
(2) A notice of appeal filed before disposition of any of the motions listed in paragraph (1) of this subdivision shall be treated as filed on the day after the entry of an order disposing of the last motion outstanding or the day after the motion is deemed denied by operation of law. Such a notice is effective to appeal the underlying judgment, decree, or order. A party who also seeks to appeal from the grant or denial of the motion shall within thirty (30) days amend the previously filed notice, complying with Rule 3(e). No additional fees will be required for filing an amended notice of appeal.
(3) Upon a showing of failure to receive notice of the judgment, decree or order from which appeal is sought and a determination that no party would be prejudiced, the trial court may, upon motion filed within 180 days of entry of the judgment, decree, or order, extend the time for filing the notice of appeal for a period of fourteen (14) days from the date of entry of the extension order. Notice of any such motion shall be given to all other parties in accordance with Rule 5 of the Arkansas Rules of Civil Procedure.
(c) When Judgment Is Entered. A judgment, decree or order is entered within the meaning of this rule when it is filed with the clerk of the court in which the claim was tried. A judgment, decree or order is filed when the clerk stamps or otherwise marks it as "filed" and denotes thereon the date and time of filing.
The Reporter's Notes accompanying Rule 4 are amended by adding the following:
Addition to Reporter's Notes, 1999 Amendment: The rule has been revised to incorporate some features of Rule 4 of the Federal Rules of Appellate Procedure, as amended in 1991 and 1993. On balance, the effect of the amendment is to liberalize prior Arkansas practice.
Subdivision (a) now provides that a premature notice of appeal is to be treated as if it had been filed after entry of the judgment, decree, or order. Previously, such a notice was ineffective. Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992). Subdivision (f) of the prior version of the rule, which provided that a notice of appeal was effective if filed on the same day but earlier in time than the judgment, decree, or order, has been deleted. Also deleted are two sentences in subdivision (a) dealing with the situation in which a party has not received notice of entry of a judgment, decree, or order. This issue is now addressed in paragraph (3) of subdivision (b).
Amended subdivision (b) combines subdivisions (b), (c), and (d) of the prior version of the rule. Paragraph (b)(1) is essentially former subdivision (b), with one clarifying change. A timely motion for new trial, judgment notwithstanding the verdict, or amendment of findings extends for all parties the time for filing a notice of appeal. If there are multiple motions, the 30-day period for filing a notice of appeal begins to run from entry of the order disposing of "the last motion outstanding" or the date on which such motion is deemed denied by operation of law.
Paragraph (b)(2), based on Federal Rule 4(a)(4), is new. It provides that a notice of appeal filed before disposition of one of the specified posttrial motions becomes effective on the day after a dispositive order is entered or the motion is deemed denied by operation of law. Under prior practice, a premature notice of appeal was ineffective. Chickasaw Chemical Co. v. Beasley, 328 Ark. 472, 944 S.W.2d 511 (1997); Kimble v. Gray, 313 Ark. 373, 853 S.W.2d 890 (1993). The effect of paragraph (b)(2) is to suspend a premature notice until the motion is ruled on or deemed denied, and a new notice is not necessary to appeal the underlying case. However, a party seeking to appeal from disposition of the posttrial motion must amend the original notice to so indicate. No additional fees are required in this situation, since the notice is an amendment of the original and not a new notice of appeal.
Paragraph (b)(3) is a revised version of a provision previously found in subdivision (a), under which a party who did not receive notice of the judgment or order that he or she wished to appeal could obtain an extension from the trial court "for a period not to exceed sixty (60) days from the expiration of the time otherwise prescribed by these rules." This rule proved restrictive in operation. See, e.g., Jones-Blair Co. v. Hammett, 51 Ark. App. 112, 911 S.W.2d 263 (1995), rev'd on other grounds, 326 Ark. 74, 930 S.W.2d 335 (1997); Chickasaw Chemical Co. v. Beasley, supra. Accordingly, paragraph (b)(3) expands the period during which an extension may be sought. The trial court may extend the time for filing the notice of appeal "upon motion filed within 180 days of entry of the judgment, decree, or order." If such an extension is granted, the notice of appeal must be filed within fourteen days from the date on which the extension order is entered. These time frames are taken from the corresponding federal rule. See Rule 4(a)(6), Fed.R.App.P. Like the federal rule, paragraph (b)(3) also requires a determination by the trial court that no party would be prejudiced by the extension of time. The term "prejudice" means some adverse consequence other than the cost of having to oppose the appeal and encounter the risk of reversal. Prejudice might arise, for example, if the appellee had taken some action in reliance on the expiration of the normal time period for filing a notice of appeal.