Summary
In Hall v. Freeman, 327 Ark. 720, 942 S.W.2d 230 (1997), appellee Freeman filed a notice of cross-appeal and filed a brief in response to appellant's brief on appeal.
Summary of this case from Greenway Equip., Inc. v. JohnsonOpinion
96-179
Opinion delivered March 24, 1997
APPEAL ERROR — PETITION FOR REHEARING DENIED — CROSS-APPELLANT NOT RELIEVED OF BURDEN OF PRESENTING ARGUMENT ON GROUND THAT HE MAY HAVE MADE SIMILAR APPELLEE'S ARGUMENT. — The supreme court denied appellee's petition for rehearing, noting that Ark. Sup. Ct. R. 4-4(b) contemplates the arguments of appellee and cross-appellant as "separate arguments" and that there is no authority to support the contention that a cross-appellant is relieved of presenting his argument as required by the rule on the ground that he may have made a similar appellee's argument; while the rule would have allowed appellee to place his two separate arguments in the same brief, it did not relieve him of the burden of making those arguments.
Petition for Rehearing; denied.
Melinda R. Gilbert, for appellant.
Randell Templeton, for appellee.
Doug Freeman, the appellee, claims our opinion erred in stating that he did not cross-appeal from the Chancellor's ruling that he was barred by res judicata from denying his paternity of Stuart Freeman. Mr. Freeman did file a notice of appeal, but he presented no cross-appeal to this Court.
Mr. Freeman contends the issue of res judicata was argued "fully and completely" in Point II. of Tod Hall's original appellant's brief and in Point II. of his (Doug Freeman's) appellee's brief. Point II. of Mr. Hall's brief argued the Chancellor erred in failing to apply res judicata so as to bind the child, Stuart Freeman, by the original divorce decree. Mr. Hall's contention was that Stuart was in privity with the parties and thus bound by that decree. Mr. Freeman's Point II. was stated as follows: "The Trial Court Did Not Err In Determining Paternity Based Upon the Doctrines, Res Adjudicata and Collateral Estoppel." His argument was that Tod Hall was not a party to the divorce proceeding and thus he had no standing to assert res judicata with respect to any of the parties to the divorce proceeding or to the child. He then added this sentence: "The Appellee, Doug Freeman, contends that he is likewise not bound in asserting that Tod Hall is the putative father of the minor child." All of the remainder of the argument is devoted to showing that the child, Stuart Freeman, was not bound by the divorce decree and that the Chancellor did not err in her ruling to that effect. Perhaps it could be said that both parties fully and completely argued the issue of res judicata in their appellate briefs, but the argument was not about whether Doug Freeman was bound. Doug Freeman's point of appeal and his argument, again, were that the Chancellor had not erred. No cross-appeal was presented.
[1] Our Rule 4-4(b) governs the briefs of appellees and cross appellants. After general provisions concerning appellees' briefs, it states, "This Rule shall apply to cross-appellants. If the cross-appellant is also the appellee, the two separate arguments may be contained in one brief, but each argument is limited to 25 pages. [Emphasis added.]" The Rule obviously contemplates the arguments of appellee and cross-appellant as "separate arguments." There is no authority to support the contention that a cross-appellant is relieved of presenting his argument as required by Rule 4-4(b) on the ground that he may have made a similar appellee's argument. While the Rule would have allowed Mr. Freeman to place his two separate arguments in the same brief, it does not relieve him of the burden of making those arguments.
Petition denied.
BROWN, J., dissents.
At one point in his original brief on appeal, Doug Freeman wrote:
The Appellee, Doug Freeman, contends that he is likewise not bound in asserting that Tod Hall is the putative father of the minor child.
Hence, it cannot be maintained that Doug Freeman abandoned this argument. Neither party would agree that that was the case.
Why is the issue important? The chancellor concluded that Doug Freeman was bound by the language in his divorce decree that the parties have one minor child. That undoubtedly is the issue on which he cross-appealed. If Doug Freeman is not barred by res judicata, this is additional reason to hold that he had standing to advance the paternity argument. Of course, I concluded in my dissent to the original decision in this case that Freeman had standing to raise the paternity issue irrespective of the res judicata defense. See Hall v. Freeman, 327 Ark. 148, 936 S.W.2d 761 (1997). (Brown, J., dissenting). But the bottom line is that Freeman (1) did cross-appeal, and (2) did argue that he was not bound by res judicata to this court, albeit briefly. He deserves to have the issue addressed and decided.
I would also grant rehearing on the merits. When a putative father, the natural mother, and the guardian for the child all agree that paternity should be determined, the requirements of Ark. Code Ann. § 9-10-104 (Repl. 1993), have been met. For these reasons, I respectfully dissent.