IN RE AR. RULES OF CIVIL PROC

Full title: IN RE: ARKANSAS RULES OF CIVIL PROCEDURE 4, 5, 26, 33, 34, 41, 50, 54, 55…

Court: Supreme Court of Arkansas

Date published: Nov 5, 1998

335 Ark. App'x 549 (Ark. 1998)

Opinion

Delivered November 5, 1998

PER CURIAM.

The Arkansas Supreme Court Committee on Civil Practice has submitted its annual proposals and recommendations for changes in the Arkansas Rules of Civil Procedure, the Arkansas Rules of Appellate Procedure — Civil, and the Court's Administrative Orders.

We publish the Committee's suggested changes to the Rules and the Reporter's Notes for comment from the bench and bar. Appended to the proposal is a line-in, line-out version of the proposed amendments to the Rules. We note that the proposed amendments to Ark. R. Civ. P. 5 will, if adopted, result in Ark. Code Ann. §§ 16-20-109 and 16-58-131 being deemed superseded.

We express our gratitude to the Chair of the Committee, Judge John Ward, its Reporter, Professor John J. Watkins, and the Committee members for their faithful and helpful work with respect to the Rules.

Comments on the suggested rules changes should be made in writing prior to January 15. 1999, and they should be addressed to:

Clerk, Supreme Court of Arkansas Attn: Civil Procedure Rules Justice Building 625 Marshall Street Little Rock, Arkansas 72201.

General comments and suggestions about the Arkansas Rules of Civil Procedure should be addressed to:

Professor John J. Watkins Leflar Law Center University of Arkansas Fayetteville, Arkansas 72701.

Arkansas Rules of Civil Procedure

1. 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 §§ 16-20-109 and 16-58-131 are deemed superseded.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 this rule and may charge a fee of $1.00 per page. Any signature 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 to hold former spouse in contempt for failure to pay 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 to charge a fee of $1.00 per page. Previously, the rule provided 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 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.

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 — Civil

Rule 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.

Administrative Orders

The following new Administrative Order Number 11 is adopted:

ADMINISTRATIVE ORDER NUMBER 11 — OFFICIAL PROBATE FORMS

SECTION 1. Authority. The Court, pursuant to Ark. Code Ann. § 28-1-114 and its constitutional and inherent powers to regulate procedure in the courts, adopts the following probate forms. These official forms supersede all earlier versions.

SECTION 2. Captions and Affidavits. When the word "caption" appears on a form, the following format should be used:

In The Probate Court of ___________ County, Arkansas

In The Matter of the Estate of _______________, Deceased No. _________

-OR-

In the Matter of ___________, An Incapacitated Person

When the word "affidavit" appears on a form, the following format should be used:

STATE OF ARKANSAS COUNTY OF ________

Subscribed and sworn to before me on [date].

______________________________ [Signature]

______________________________ [Official Title]

(Seal)

My commission expires: ____________________

Reporter's Notes to Section 2: The statutes governing guardianship proceedings, Ark. Code Ann. §§ 28-65-101 — 28-65-603, use the term "incapacitated person" to refer both to persons who are impaired by reason of various forms of disability and to persons under the age of 18 whose disabilities have not been removed. The term "minor" may be used with respect to the latter.

By statute, "[e]very application to the [probate] court, unless otherwise provided, shall be by petition signed and verified by or on behalf of the petitioner." Ark. Code Ann. § 28-1-109(a). Other documents require verification only if the governing statute so provides. These statutes are cited in the Reporter's Notes accompanying those forms, other than applications, that require an affidavit.

SECTION 3. Forms.

Form 1. [Caption] DEMAND FOR NOTICE OF PROCEEDINGS FOR PROBATE OF WILL OR APPOINTMENT OF PERSONAL REPRESENTATIVE

The undersigned, ______________, respectfully demands notice of any proceeding to probate a will of ______________, deceased, who resided at ____________, Arkansas, or for the appointment of a personal representative to administer [his] [her] estate.

My address is __________________________________________.

My interest in the estate is that of __________________________.

My attorney, authorized to represent me in this proceeding, and to accept notice for me, is _________________, whose address is ______________.

Date: ______, ____.

_______________________________ [Signature]

Reporter's Notes to Form 1: See Ark. Code Ann. § 28-40-108(a).

Form 2. [Caption] PETITION FOR APPOINTMENT OF [ADMINISTRATOR] [ADMINISTRATRIX]

_______________, whose address is ____________, and whose interest in the decedent's estate is that of ____________, petitions that letters of administration of the estate be issued. The facts known to petitioner are:

1. The decedent , ___________, aged ___, who resided at ___________ in ____________ County, Arkansas, died intestate at ____________ on or about [date].

2. The surviving spouse and heirs of the decedent, and their respective ages, relationships to the decedent, and residence addresses, are:

Name Age Relationship Residence Address ________________ ____ ______________ _________________ ________________ ____ ______________ _________________ ________________ ____ ______________ _________________

3. The probable value of the decedent's estate is:

Real property $ ________ Personal property $ ________

4. Petitioner nominates ____________, whose residence address is _______________, for appointment as [administrator] [administratrix] of the estate. The relationship, if any, of the nominee to the decedent, and other facts, if any, which entitle the nominee to appointment are: ____________.

THEREFORE, petitioner requests that this court make an order determining the fact of the death and of the intestacy of the decedent, and appointing petitioner's nominee [administrator] [administratrix] of the estate.

______________________________ [Signature of Petitioner]

[Affidavit]

Reporter's Notes to Form 2: See Ark. Code Ann. § 28-40-107. The term "heir" is defined by statute as "a person entitled by the law of descent and distribution to the real and personal property of an intestate decedent, but does not include a surviving spouse." Ark. Code Ann. § 28-1-102(a)(10).

Form 3. [Caption] PETITION FOR PROBATE OF WILL AND APPOINTMENT OF PERSONAL REPRESENTATIVE

______________, whose address is ____________, and whose interest in the decedent's estate is that of ______________, petitions that a certain written instrument be admitted to probate as the last will of the decedent, and for the appointment of a personal representative. The facts known to petitioner are:

1. The decedent, ___________, aged ___, who resided at ___________ in ___________ County, Arkansas, died at __________ on or about [date].

2. The decedent left as his last will a written instrument dated the ________ day of ________, ____, which has been filed in this court. Proof of its execution in the manner required by law has been made or will be made at the time of presentation of this petition.

3. The surviving spouse, heirs, and devisees of the decedent, and their respective ages, relationships to the decedent, and residence addresses, are:

Name Age Relationship Residence Address ________________ ____ ______________ _________________ ________________ ____ ______________ _________________ ________________ ____ ______________ _________________

4. The probable value of the decedent's estate is:

Real property $ ________ Personal property $ ________

5. The will of the decedent nominates ________________ as [executor] [executrix]. (Petitioner nominates for appointment as ________, ________ of __________ to administer the estate.) The relationship, if any, of the nominee to the decedent, and other facts, if any, which entitle the nominee to appointment are: ________________.

THEREFORE, petitioner requests that this court make an order determining (1) the fact of the death of the decedent; (2) that the proffered instrument was executed in all respects according to law when the testator was competent to do so and acting without undue influence, fraud or restraint, has not been revoked and is decedent's last will; and (3) appointing the nominee to administer the decedent's estate.

______________________________ [Signature of Petitioner]

[Affidavit]

Reporter's Notes to Form 3: See Ark. Code Ann. § 28-40-107. The sentence in parentheses in paragraph 5 is to be substituted for the preceding sentence if the petitioner seeks appointment of a personal representative who is not nominated in the decedent's will.

Form 4. [Caption] PROOF OF WILL

I, ______________, state on oath:

I am one of the subscribing witnesses to the attached written instrument, dated the ____ day of _________, ____, which purports to be (a codicil to) the last will of _____________, deceased. On the execution date of the instrument the [testator] [testatrix], in my presence, and in the presence of the other attesting witnesses, signed the instrument at the end, or acknowledged [his] [her] signature, declared the instrument to be [his] [her] will, and requested that I attest [his] [her] execution of it. Then, in the presence of the [testator] [testatrix] and the other witnesses, I signed my name as an attesting witness. At the time of execution of the instrument, the [testator] [testatrix] appeared to be eighteen years of age or older, of sound mind, and acting without undue influence, fraud or restraint.

Date: ________, ____.

______________________________ [Signature]

[Affidavit]

Reporter's Notes to Form 4: This form is designed for execution and filing with the court when the original will did not include a "proof of will." Because it is not always practical to have multiple witnesses appear simultaneously, the form is for a single witness. This form is for an attested will and should not be used for a holographic will. An attested will must be proved by at least two attesting witnesses or as otherwise provided by statute. Ark. Code Ann. § 28-40-117(a). If the instrument is a codicil, the language in parentheses should be included. An affidavit is required by Ark. Code Ann. § 28-40-118(a).

Form 5. [Caption] NOTICE OF HEARING ON PETITION

To all persons interested in the estate of _____________, deceased:

You are hereby notified that a petition has been filed in this court (to admit to probate the will of ____________, and) for the appointment of a personal representative for this estate; that this petition will be heard at ___ o'clock __.m. on [date], at ________, or at a later time or other place to which the hearing may be adjourned or transferred.

Date: _______, ____

__________________________, Clerk. By: ________________, Deputy Clerk.

Reporter's Notes to Form 5: See Ark. Code Ann. § 28-40-110. The language in parentheses should be used when the petitioner seeks probate of a will.

Form 6. [Caption] BOND OF PERSONAL REPRESENTATIVE

The undersigned, ____________, as principal, having been appointed [executor] [executrix] of the will of (or [administrator] [administratrix] of the estate of) _______________, deceased, and ___________, as suret __, acknowledge themselves to be jointly and severally obligated to the State of Arkansas, for the use and benefit of all persons interested in the estate, in the penal sum of ________ Dollars ($ ________) conditioned as follows:

If the undersigned [executor] [executrix] (or [administrator] [administratrix]) shall well and faithfully account for his administration of the estate, as required by law, this bond shall become void. Otherwise, this bond will remain in full force and effect.

Date: ________, ____.

___________________, as Principal.

______________________, as Surety. ______________________, as Surety.

Approved this date: ________, ____.

_________________________, Clerk. By: _______________, Deputy Clerk.

Approved this date: ________, ____.

________________________, Judge.

Reporter's Notes to Form 6: See Ark. Code Ann. § 28-48-204. The references to administrator and administratrix in parentheses are to be substituted for the references to executor and executrix if the personal representative was not nominated in the decedent's will. If a corporate surety is used, the power of attorney of agent should be attached. If the sureties are individuals, their qualifying affidavit (Form 7) should be attached.

Form 7. [Caption] QUALIFYING AFFIDAVIT OF PERSONAL SURETIES

The undersigned, being the sureties on the bond filed in this estate, state on oath that we collectively own property in the State of Arkansas, in excess of our liabilities and subject to execution, of a value equal to the amount of the bond.

Date: ________, ____.

_________________________, Surety. _________________________, Surety. _________________________, Surety.

[Affidavit]

Reporter's Notes to Form 7: See Ark. Code Ann. § 28-48-205. This form is only for individual sureties. It may be used with the guardian's bond (Form 27). An affidavit is required by Ark. Code Ann. § 28-48-205(b).

Form 8. [Caption] ACCEPTANCE OF APPOINTMENT AS PERSONAL REPRESENTATIVE

The undersigned, ________________, having been appointed ________ of the estate of ______________, deceased, accepts the appointment.

Date: __________, ____.

______________________________ [Signature]

Reporter's Notes to Form 8: See Ark. Code Ann. § 28-48-102(a). This form is to be used only when no bond is required of the personal representative.

Form 9. [Caption] DESIGNATION OF PROCESS AGENT

The undersigned, __________, as ________ of the estate of ________, appoints the clerk of this court and his successors in office, (or ________, whose residence address is ________,) as agent in behalf of the undersigned, to accept service of process and notice in all actions and proceedings with respect to the estate.

Date: __________, ____.

______________________________ [Signature]

Reporter's Notes to Form 9: See Ark. Code Ann. § 28-48-101(b)(6). This form is for use by a nonresident personal representative or guardian. The language in parentheses should be substituted for the language immediately preceding it if someone other than the clerk of the court is appointed. The statute does not require an affidavit or acknowledgment.

Form 10. [Caption] LETTERS OF ADMINISTRATION

___________, whose address is ________, having been appointed and qualified as [administrator] [administratrix] of the estate of ____________, deceased, who died on or about [date], is hereby authorized to act as [administrator] [administratrix] for and in behalf of the estate and to take possession of the estate's property as authorized by law.

Issued this date: ________, ____.

_________________________, Clerk. By: _______________, Deputy Clerk.

(Seal)

Reporter's Notes to Form 10: See Ark. Code Ann. § 28-48-102. This form shall used if the personal representative was not nominated in the decedent's will. Appropriate modifications should be made to this form for letters of administration with will annexed, administration in succession, and special administration.

Form 11. [Caption] LETTERS TESTAMENTARY

___________, whose address is ________, having been appointed and qualified as [executor] [executrix] of the will of ___________, deceased, who died on or about [date], is hereby authorized to act as [executor] [executrix] for and in behalf of the estate and to take possession of the estate's property as authorized by law.

Issued this date: ________, ____.

_________________________, Clerk. By: _______________, Deputy Clerk.

(Seal)

Reporter's Notes to Form 11: See Ark. Code Ann. § 28-48-102. This form shall used if the personal representative was nominated in the decedent's will.

Form 12. [Caption] NOTICE OF APPOINTMENT AS [ADMINISTRATOR] [ADMINISTRATRIX]

Last known address: _______________

Date of Death: ______________, _____

The undersigned was appointed [administrator] [administratrix] of the estate of _______________, deceased, on [date].

All persons having claims against the estate must exhibit them, duly verified, to the undersigned within three (3) months from the date of the first publication of this notice, or they shall be forever barred and precluded from any benefit in the estate. However, claims for injury or death caused by the negligence of the decedent shall be filed within six (6) months from the date of the first publication of this notice, or they shall be forever barred and precluded from any benefit in the estate.

This notice first published on [date].

_______________________________ [Administrator] [Administratrix] _______________________________ [Mailing Address]

Reporter's Notes to Form 12: See Ark. Code Ann. § 28-40-111. This form shall used if no will was admitted to probate.

Form 13. [Caption] NOTICE OF APPOINTMENT AS [EXECUTOR] [EXECUTRIX] (OR [ADMINISTRATOR] [ADMINISTRATRIX] WITH WILL ANNEXED)

Last known address: _______________

Date of Death: ______________, _____

An instrument dated _________, ____ was admitted to probate on [date] as the last will of ______________, deceased, and the undersigned has been appointed [executor] [executrix] (or [administrator] [administratrix]) thereunder. Contest of the probate of the will can be effected only by filing a petition within the time provided by law.

All persons having claims against the estate must exhibit them, duly verified, to the undersigned within three (3) months from the date of the first publication of this notice, or they shall be forever barred and precluded from any benefit in the estate. However, claims for injury or death caused by the negligence of the decedent shall be filed within six (6) months from the date of the first publication of this notice, or they shall be forever barred and precluded from any benefit in the estate.

This notice first published on [date].

______________________________________ [Executor] [Executrix] [Administrator] [Administratrix]

______________________________________ [Mailing Address]

Reporter's Notes to Form 13: See Ark. Code Ann. § 28-40-111. This form shall be used if a will was admitted to probate and a personal representative was appointed. The language in parentheses in the first paragraph should be substituted for the language immediately preceding it if the personal representative was not nominated in the decedent's will. The form to be used when a will is probated but no personal representative appointed may be found in Ark. Code Ann. § 25-40-111(c)(3). Because such proceedings are infrequent, no official form was adopted.

Form 14. [Caption] NOTICE TO SURVIVING SPOUSE

The will of the _____________, deceased, dated ________, ____, was admitted to probate by this court on [date].

Any right which you may have to take against the will must be exercised by written election filed in this court within one month after the expiration of the time limited for the filing of claims against the estate; except, however, that in the particular circumstances set forth in Ark. Code Ann. § 28-39-403, you may be entitled to make such election at a later date.

Dated: __________, ____.

__________________________, Clerk. By: ________________, Deputy Clerk.

(Seal)

Reporter's Notes to Form 14: See Ark. Code Ann. § 28-39-402. This notice must be mailed by the clerk to the surviving spouse of the decedent within one month after a will has been admitted to probate.

Form 15. [Caption] REQUEST FOR SPECIAL NOTICE OF HEARING

The undersigned, ___________, respectfully requests written notice by ordinary mail of the time and place of all hearings on the settlement of accounts, on final distribution, and on any other matters for which any notice is required by law, by rule of court, or by an order in this case.

My address is __________________________________.

My interest in the estate is that of __________________.

My attorney, authorized to represent me in this proceeding, and to accept notice for me, is ________, whose address is ____________.

Dated: __________, ____.

_______________________________ [Signature]

PROOF OF SERVICE

1. (To be used if acknowledged by personal representative or his attorney)

The undersigned acknowledges receipt of this notice on [date].

_______________________________ [Personal Representative]

By: ____________________________ [Attorney]

(To be used when not so acknowledged)

The undersigned duly served this notice on ____________, the personal representative of this estate, on [date] in the following manner: [Insert the method of service as specified in Ark. Code Ann. § 28-1-112.]

[Affidavit]

Reporter's Notes to Form 15: See Ark. Code Ann. § 28-40-108(b). This form is to be used only after a personal representative has been appointed and must be prepared in duplicate, with one copy served on the personal representative. An affidavit is required only if Paragraph 2 is used and must be sworn to unless signed by an officer authorized by law to serve civil process, or signed by the clerk or by an attorney of this state. See Ark. Code Ann. § 28-1-112(f).

Form 16. [Caption] PETITION FOR AWARD OF STATUTORY ALLOWANCES

The decedent, __________, is survived by the persons named below who constitute the surviving spouse, if any, and all of the decedent's minor children, if any.

Name of surviving spouse: ____________________. Children: Name of Child Sex Age Name of Guardian _______________________ ____ ____ _____________________ _______________________ ____ ____ _____________________

The surviving spouse, who was living with the decedent at the time of the decedent's death, is entitled to the award of the following items of household furniture, furnishings, appliances, implements and equipment which are reasonably necessary for the use and occupancy of the family dwelling by the surviving spouse and minor children, if any:

HOUSEHOLD FURNITURE AND EQUIPMENT

[Itemizing is required only to the extent necessary to distinguish the selected items from other household furniture and equipment, if any, of the decedent's estate.]

Among the items of personal property of the estate of the decedent are those described below, which the undersigned surviving spouse of the decedent (or the undersigned guardian of the decedent's minor children) have selected to be assigned to and vested in the surviving spouse and minor children of the decedent as provided by law. Each item of property has the value stated opposite its description.

ITEMIZED DESCRIPTION OF PROPERTY

Description Value __________________________ $ ________ __________________________ $ ________ __________________________ $ ________

The surviving spouse and minor children of the decedent are entitled to be awarded sustenance for a period of two months after the death of the decedent as follows:

THEREFORE, petitioner requests that this court enter an order assigning to and vesting in the surviving spouse and minor children of the decedent the personal property described above, to which they are respectively entitled under the provisions of Ark. Code Ann. §§ 28-39-101 through 28-39-104.

______________________________ [Capacity of Petitioner]

[Affidavit]

Reporter's Notes to Form 16: See Ark. Code Ann. §§ 28-39-101 — 28-39-104. The total value under "Itemized Description of Property" is limited to $1,000 as against creditors and $2,000 as against distributees. If minor children are not the children of the surviving spouse, the petition should be revised to reflect that the allowance vests in the surviving spouse to the extent of one-half thereof, and the remainder vests in the decedent's minor children in equal shares. Award for sustenance for period of two months after death of decedent shall be a reasonable amount, not exceeding $500 in the aggregate. Ark. Code Ann. § 28-39-101(c). Beneath the signature line, the capacity of the petitioner should be identified ( e.g., as the personal representative, the surviving spouse, or the guardian of minor children). If the petitioner is the guardian of minor children, the language in parentheses should be substituted for the language immediately preceding it.

Form 17. [Caption] INVENTORY OF DECEDENT'S ESTATE

The undersigned, ___________ of the estate of ___________, deceased, states on oath that to the best of my knowledge and belief, the following is a complete and accurate inventory of all property owned by the decedent, and its fair market value, at the time of the decedent's death.

REAL ESTATE

Legal Encumbrances, Liens, etc., and Net Value Description Respective Amounts Thereof Homestead: ____________ ______________________________ $ ______ Other real estate: ____________ ______________________________ $ ______ Total Value of Real Estate: $ ________

PERSONAL PROPERTY Household Goods and Personal Effects

[This list should include, but not be limited to, furniture, household and yard equipment, clothing, jewelry, etc.]

Description Encumbrances, Liens, etc., and Net Value Respective Amounts Thereof ___________ _______________________________ $ ________ ___________ _______________________________ $ ________

Other Tangible Personal Property

[This list should include, but not be limited to, automobiles and other motor vehicles, farm equipment, livestock, agricultural products, stocks of merchandise, any going business enterprise or interest therein, etc.]

Description Encumbrances, Liens, etc., and Net Value Respective Amounts Thereof ___________ ________________________________ $ ________ ___________ ________________________________ $ ________

Intangible Personal Property

[List separately in detail: cash on hand; money on deposit, stating names and addresses of depositories; bonds, stating names of issuers, interest rates, classes, maturity dates, serial numbers, face amounts, and dates to which interest is paid; corporate stocks, stating certificate numbers, names of issuers, classes, and number of shares; notes receivable, stating the names and addresses of makers, dates, amounts, interest rates, and dates to which interest paid, balances due, maturities, and security, if any; accounts receivable, stating names of debtors, dates of last items and balances due; and other intangibles, describing in detail.]

Description Encumbrances, Liens, etc., and Net Value Respective Amounts Thereof ____________ _______________________________ $ ________ ____________ _______________________________ $ ________

Total Value of Personal Property: $ ________

SUMMARY

Total real property: $ ________ Total personal property: $ ________ Total estate: $ ________

The undersigned was not indebted or obligated to the decedent at the time of the decedent's death except as stated herein.

Date: ________, ____.

________________________________ [Signature]

[Affidavit]

Reporters Notes to Form 17: See Ark. Code Ann. § 28-49-110. This form should be filed by the personal representative within two months after qualification, unless the requirement is waived pursuant to Ark. Code Ann. § 28-49-110(c)(1). Inventory should not include any property owned jointly with right of survivorship by the decedent and a third party, or any insurance proceeds or other benefits payable by beneficiary designation, unless such benefits are payable to the decedent's estate. An affidavit is required by Ark. Code Ann. § 28-49-110(a)(2).

Form 18. [Caption] AFFIDAVIT TO CLAIM AGAINST ESTATE

I, ____________, do swear that the attached claim against the estate of ____________, deceased, is correct, that nothing has been paid or delivered toward the satisfaction of the claim except as noted, that there are no offsets to this claim, to the knowledge of this affiant, except as therein stated, and that the sum of ________ Dollars ($ ________) is now justly due (or will or may become due as stated). I further state that if this claim is based upon a written instrument, a true and complete copy, including all endorsements, is attached.

Date: _________, ___.

_________________________________ [Signature]

[Affidavit]

Reporter's Note to Form 18: See Ark. Code Ann. §§ 28-50-103 — 28-50-104. If this affidavit is made by a corporation, organization, or anyone other than an individual in his or her own behalf, the representative capacity of the affiant must be clearly stated in the first line in the form and below the signature line. An affidavit is required by Ark. Code Ann. § 28-50-103(a).

Form 19. [Caption] APPRAISAL

The undersigned, ________, ________ and ________, having been appointed to appraise the property described below, represented to us by ________ as ________ to be property of the captioned estate, do appraise the value of each item as:

REAL ESTATE

Legal Description of Property and Interest Therein Owned by the Estate Value _________________________________ $ _______ _________________________________ $ _______ Total Value: $ ________

Each of the undersigned states on oath that [he] [she] is not interested in the estate, the property appraised, or the sale of any of this property; that [he] [she] believes [himself] [herself] to be well informed concerning the value of the property appraised; and that the foregoing appraisal is on the basis of the full and fair value of the property.

Date: __________, ____.

______________________________ [Appraiser] ______________________________ [Appraiser] ______________________________ [Appraiser]

[Affidavit]

Reporter's Note to Form 19: See Ark. Code Ann. § 28-51-302. This form is to be used by personal representatives and guardians of estates when real estate of the decedent or ward is to be sold, and in sales of personal property when an appraisal is required by the court. The court may approve the appointment of one appraiser instead of the three contemplated by the form to appraise real property, unless an heir or beneficiary of the estate objects. By statute, the appraisers must certify the appraisal under oath. Ark. Code Ann. § 28-51-302(b).

Form 20. [Caption] ACCOUNTING BY PERSONAL REPRESENTATIVE

_______________ respectfully submits to the court [his] [her] account as ____________ of this estate for the period beginning on [date] and ending on [date]. This account is submitted because [insert the occasion for filing of account as set forth in Ark. Code Ann. § 28-52-103(a)].

1. Charges to accountant: [If this is the first account, the first item should be the value of the estate as reflected by the inventory. If a subsequent account, the first item should be the balance shown by the previous account. Thereafter list separately, described in detail: (a) additional property received by accountant; (b) all income; and (c) gains from the sale, conveyance or other disposition of any property received by the accountant during the accounting period. Show the date of each transaction.]

Total Charges to Accountant: $ ________

2. Credits, other than payments to distributees, to which accountant is entitled: [List separately (a) all disbursements, other than payments to distributees, and (b) all losses sustained on sales, conveyances or other dispositions of any property, describing each item in full. Show the date of each transaction.]

Total: $ ________

3. Credits for money paid or assets delivered to distributees: [Itemize each disbursement of cash and describe in detail other assets delivered, showing opposite each asset the amount at which its value was estimated in the inventory or, if purchased by the accountant, its cost. Show the date of each transaction.]

Total: $ ________

SUMMARY OF ACCOUNT

Charges to accountant: $ ________ Credits as per paragraph 2: $ ________ Credits as per paragraph 3: $ ________ Total Credits: $ ________ Balance remaining in hands of accountant: $ ________

4. Description of balance remaining in hands of accountant: [List separately and describe in detail each item of property remaining in the accountant's hands, showing the inventory value or cost of each.]

5. Changes in form of assets not affecting balance: [List separately and describe in detail all changes in the form of assets resulting from collections or sales at inventory or cost value and other such transactions. Show the date of each transaction.]

6. All outstanding liabilities of the estate of which accountant has knowledge are:

Total Liabilities: $ ________

Vouchers evidencing cash disbursements and receipts evidencing other assets delivered for which accountant has taken credit are attached to this account.

THEREFORE, having fully accounted for the administration of this estate for the period set out above, accountant requests that, after proper advertisement and notice, if any, required by law or by the court, this account be examined, approved, and confirmed by the court, and that accountant be allowed the sum of $ ________ as [his] [her] fee for services rendered during the period covered by this account.

________________________________ [Signature]

[Affidavit]

Reporter's Notes to Form 20: See Ark. Code Ann. §§ 28-52-103 — 28-52-104. In the case of a final account, a request for an order of final distribution should be added, pursuant to Ark. Code Ann. § 28-52-105(b). This form should be filed by the personal representative unless the requirement is waived pursuant to Ark. Code Ann. § 28-52-104(c). Verification of the account is required by Ark. Code Ann. § 28-52-103(a). Form 31 is to be used for an accounting by a guardian.

Form 21. [Caption] NOTICE OF FILING OF ACCOUNTS

Pursuant to Ark. Code Ann. § 28-52-106, notice is given that accounts of the administration of the estates listed below have been filed on the dates shown by the named personal representatives.

All interested persons are called on to file objections to such accounts on or before the sixtieth day following the filing of the respective accounts, failing which they will be barred forever from excepting to the account.

Name of Estate Name and Address of Nature of Account Date Personal Representative Filed ______________ _______________________ __________________ ______ ______________ _______________________ __________________ ______

Date: ________, ____.

__________________________, Clerk.

By: ________________, Deputy Clerk.

(Seal)

Reporter's Note to Form 21: By statute, the clerk must publish, in a newspaper published or having a general circulation in the county, a notice of estates in which accounts have been filed by personal representatives during the preceding month, listing in alphabetical order the names of the estates. Ark. Code Ann. § 28-52-106.

Form 22. [Caption] CITATION FOR FAILURE TO PRESENT ACCOUNT

To _____________, the personal representative of this estate:

Being delinquent in the filing of your account of your administration of this estate, you are required to file that account within thirty (30) days after the date of service of this citation and to show cause why an attachment should not be issued against you for your failure to present your account according to law.

Date: __________, ____.

___________________________, Clerk. By: ________________, Deputy Clerk.

(Seal)

Reporter's Notes to Form 22: See Ark. Code Ann. § 28-52-103(c). Form 23. [Caption] AFFIDAVIT FOR COLLECTION OF SMALL ESTATE BY DISTRIBUTEE

________, ________ and ________, for the purpose of dispensing with administration of this estate, deceased, state on oath:

1. The decedent ___________, aged ___, who resided at ________ in __________ County, Arkansas, died at ________ on or about [date]. No petition for the appointment of a personal representative for the decedent's estate is pending or has been granted.

2. More than forty-five (45) days have elapsed since decedent's death.

3. The value, less encumbrances, of all property owned by the decedent at the time of death, excluding the homestead of and statutory allowances for the benefit of the surviving spouse or minor children, if any, of the decedent, does not exceed fifty thousand dollars ($50,000).

4. There are no unpaid claims or demands against the decedent or the decedent's estate, and the Department of Human Services furnished no federal or state benefits to the decedent (or, that if such benefits have been furnished, the Department of Human Services has been reimbursed in accordance with state and federal laws and regulations).

5. An itemized description and valuation of the decedent's personal property; a legal description and valuation of the decedent's real property, including homestead, if any; and the names and addresses of persons having possession thereof or residing on any of the decedent's real property, are:

Description of Property, and Extent Valuation Less and Details of Encumbrances, if Any Encumbrances In Possession of ___________________________________ ______________ ________________ ___________________________________ ______________ ________________

6. The names, ages, relationships to the decedent and residence addresses of the persons entitled to receive the property of the decedent as surviving spouse, heirs or devisees of decedent's will are:

Name Age Relationship Residence Address __________________ ____ ____________ __________________ __________________ ____ ____________ __________________

THEREFORE, the distributee[s] of this estate shall be entitled to distribution of the property identified above, without the necessity of an order of the court or other proceeding, upon furnishing a copy of this Affidavit, certified by the clerk, to any person owing any money, having custody of any property, or acting as registrar or transfer agent of any evidence of interest, indebtedness, property or right of the decedent.

Date: ___________, ____.

________________________________ [Affiant] ________________________________ [Affiant] ________________________________ [Affiant]

[Affidavit] CERTIFICATE OF CLERK

The undersigned Clerk of the Probate Court of ___________ County, Arkansas, certifies that this is a true copy of an affidavit filed in this court on [date], that the affidavit remains on file and that no petition for the appointment of a personal representative of this estate has been filed in this court.

Date: __________, ____.

__________________________, Clerk.

By: ________________, Deputy Clerk.

(Seal)

Reporter's Notes to Form 23: See Ark. Code Ann. § 28-41-101. The language in parentheses in Paragraph 4 should be substituted for the language immediately preceding it if the Department of Human Services furnished benefits to the decedent. An affidavit by the distributee is required by Ark. Code Ann. § 28-41-101(a)(4). If an estate collected pursuant to this affidavit contains real property, the distributee, to allow for presentation of claims against the estate, may publish a notice promptly after the affidavit has been filed. Ark. Code Ann. § 28-41-101(b)(2).

Form 24. [Caption] PETITION FOR APPOINTMENT OF GUARDIAN OF THE PERSON AND ESTATE

The petitioner respectfully represents to this court that a guardian of the person and of the estate should be appointed for the incapacitated person whose name, date of birth, sex, and address are:

Name Date of Birth Sex Residence Address ______________ _________________ ___ _________________

The nature of the incapacity and purpose of the guardianship sought for the incapacitated person are: [Insert the nature of incapacity and purpose of guardianship, in accordance with the definitions and classifications set forth in Ark. Code Ann. §§ 28-65-101 28-65-104.]

The nature, extent and value of the property of the incapacitated person and the interest of the incapacitated person in that property, are: [Include approximate value and description of property, including any compensation, pension, insurance or allowance to which the incapacitated person may be entitled].

There is no guardian of the person or estate of the incapacitated person, except as follows: [State whether a guardian has been appointed in any state for the estate or person of the incapacitated person and if not, write "none."]

____________, whose address is ____________, is related to or interested in the incapacitated person by reason of _______________ and is legally qualified to serve as guardian of the person and estate of the incapacitated person.

[He] [She] is at present serving as guardian of the persons or estates of the incapacitated persons whose names and addresses are as follows: [List the names and addresses of any wards for whom the person whose appointment is sought is already guardian.]

Insofar as the petitioner has been able to ascertain, the persons most closely related, by blood or marriage, to the incapacitated person are:

Name Relationship Residence Address ___________________ _______________ __________________ ___________________ _______________ __________________

The nature of the proposed ward's alleged disability is: [Set forth a statement of the alleged disability as defined by Ark. Code Ann. §§ 28-65-101(1) 28-65-104.]

Petitioner recommends the following type of guardianship, having the scope and duration indicated: [Include a recommendation proposing the type, scope and duration of guardianship.]

The following facility or agency from which the proposed ward is receiving services has been notified of the proceedings: [Include a statement that any facility or agency from which the respondent is receiving services has been notified of the proceedings.]

The names and addresses of others having knowledge of the proposed ward's disability are:

Name Residence Address _______________________ _____________________ _______________________ _____________________

_______________________________ [Signature of Petitioner]

[Affidavit]

Reporter's Notes to Form 24: This petition is for a guardianship of both the person and the estate. It should be modified if the guardianship is only of one or the other. By statute, incapacitated persons include those who are impaired by certain specified mental and physical disabilities, as well as persons under the age of 18 whose disabilities have not been removed and persons who are detained or confined by a foreign power or who have disappeared. Ark. Code Ann. §§ 28-65-101 28-65-104. Matters that must be enumerated in the petition are set forth in Ark. Code Ann. § 28-65-205. See also Ark. Code Ann. §§ 28-65-105 — 28-65-106 (purpose of guardianship proceedings and rights of incapacitated persons).

Form 25. [Caption] NOTICE OF HEARING FOR APPOINTMENT

To: ___________________

You are hereby notified that a petition has been filed in this court for the appointment of a guardian of the [person] [estate] [person and estate] of _______________, an incapacitated person, and that the petition will be heard at ___ o'clock __.m., on [date] at the __________ County Courthouse, or at a later time or other place to which the hearing may be adjourned or transferred.

Date: __________, ____.

__________________________, Clerk.

By: ________________, Deputy Clerk.

Reporter's Notes to Form 25: See Ark. Code Ann. § 28-65-207 (notice of hearing for appointment and methods for service of such notice); Ark. Code Ann. § 28-65-208 (persons who must be notified of the hearing). At least 20 days notice of the hearing must be given. Ark. Code Ann. § 28-65-207(c)(2).

Form 26. [Caption] APPLICATION FOR WRITTEN NOTICE

To: _________________

The undersigned, ______________, in accordance with Ark. Code Ann. § 28-65-209, requests written notice of all hearings on petitions for settlement of accounts, for the sale, mortgage, lease, or exchange of any property of this guardianship estate, for an allowance of any nature payable from the ward's estate, for the investment of funds of the estate, for the removal, suspension, or discharge of the guardian, or for final termination of the guardianship, and any other matter affecting the welfare or care of the incapacitated person or [his] [her] property.

The requested notice should be sent to the undersigned at the following address:

Date: __________, ____.

_______________________________ [Applicant or attorney] _______________________________ [Mailing Address]

Reporter's Notes to Form 26: Pursuant to Ark. Code Ann. § 28-65-209, an interested party may, in person or by attorney, serve upon the guardian and upon his attorney, and file with the clerk of the court where the proceedings are pending, with a written admission or proof of service, a written request stating that he desires notice of some or all of the matters enumerated in this form. Unless the court directs otherwise, upon filing the request, the person shall be entitled to notice of all such hearings or of such of them as he designates in his request.

Form 27. [Caption] GUARDIAN'S BOND

The undersigned, ______________, as principal, having been appointed guardian of the [person] [estate] [person and estate] of ______________, an incapacitated person; and ________________, as suret __, acknowledge themselves to be jointly and severally obligated to the State of Arkansas, for the use and benefit of all persons interested, in the penal sum of _________ Dollars ($ _______), conditioned as follows:

If the undersigned guardian shall well and faithfully account for his guardianship, as by law required, this bond shall become void; otherwise, it will remain in full force and effect.

Date: ________, ____.

___________________, as Principal.

______________________, as Surety.

______________________, as Surety.

Approved this date: ________, ____.

__________________________, Clerk.

By: ________________, Deputy Clerk.

Approved this date: ________, ____.

__________________________, Judge.

Reporter's Notes to Form 27: See Ark. Code Ann. § 28-65-215 (requirement for a bond). For the qualifying affidavit of personal sureties, see Form 7.

Form 28. [Caption] ACCEPTANCE OF APPOINTMENT AS GUARDIAN

The undersigned, _________________, having been appointed guardian of the [person] [estate] [person and estate] of ____________________, an incapacitated person, hereby accepts the appointment.

Date: __________, ____.

_______________________________ [Signature]

Reporter's Notes to Form 28: This form is to be used only when no bond is required of the guardian.

Form 29. [Caption] LETTERS OF GUARDIANSHIP OF THE PERSON AND ESTATE

Be It Known:

_________________, whose address is ________________, having been appointed guardian of the person and estate of _____________________, an incapacitated person, and having qualified as guardian, is hereby authorized to have the care and custody of and exercise control over the incapacitated person and to take possession of and administer the property of the incapacitated person, as authorized by law.

Date: _________, ____.

__________________________, Clerk. By: ________________, Deputy Clerk.

(Seal)

Reporter's Notes to Form 29: This form, prescribed by Ark. Code Ann. § 28-65-217, is for a guardianship of both the person and the estate. It should be modified if the guardianship is only of one or the other. If the powers, authorities, and duties of the guardian are limited, the letters of guardianship must clearly state, in bold print, that they are so restricted and the word "limited" must appear in both the title and in the body of the form. For designation of a process agent by a non-resident, see Form 9.

Form 30. [Caption] INVENTORY OF WARD'S ESTATE

The undersigned, guardian of the estate of __________________, an incapacitated person, states on oath that to the best of my knowledge and belief, the following is a complete and accurate inventory of all property owned by the ward at the time of my appointment as such guardian, and that the amount set opposite each item of property is its fair market value at the time it came under my control as guardian:

REAL ESTATE

Legal Description and Encumbrances, Liens, Etc., and Net Value Extent of Ward's Interest Respective Amounts Thereof _________________________ ______________________________ $ ________ _________________________ ______________________________ $ ________ Total value of real estate: $ _________

PERSONAL PROPERTY Household Goods and Personal Effects

[This list should include, but not be limited to, furniture, household and yard equipment, clothing, jewelry, etc.]

Description Encumbrances, Liens, etc., and Net Value Respective Amounts Thereof _________________________ ______________________________ $ ________ _________________________ ______________________________ $ ________

Other Tangible Personal Property

[This list should include, but not be limited to, automobiles and other motor vehicles, farm equipment, livestock, agricultural products, stocks of merchandise, any going business enterprise or interest therein, etc.]

Description Encumbrances, Liens, etc., and Net Value Respective Amounts Thereof _________________________ ______________________________ $ ________ _________________________ ______________________________ $ ________

Intangible Personal Property

[List separately in detail: cash on hand; money on deposit, stating names and addresses of depositories; bonds, stating names of issuers, interest rates, classes, maturity dates, serial numbers, face amounts, and dates to which interest is paid; corporate stocks, stating certificate numbers, names of issuers, classes, and number of shares; notes receivable, stating the names and addresses of makers, dates, amounts, interest rates, and dates to which interest paid, balances due, maturities, and security, if any; accounts receivable, stating names of debtors, dates of last items and balances due; and other intangibles, describing in detail.]

Description Encumbrances, Liens, etc., and Net Value Respective Amounts Thereof _________________________ ______________________________ $ ________ _________________________ ______________________________ $ ________ Total value of personal property: $ _______

SUMMARY

Total real property: $ _______ Total personal property: $ _______ Total estate: $ _______

The undersigned is not indebted or obligated to the ward except as stated herein.

Date: __________, ____.

____________________________ [Signature]

[Affidavit]

Reporter's Notes to Form 30: Paragraph (a) of Ark. Code Ann. § 28-65-321 provides that the inventory is subject to the same requirements for the inventory of a decedent's estate. See Ark. Code Ann. § 28-49-110. Among those requirements is an affidavit.

Form 31. [Caption] ACCOUNTING BY GUARDIAN

_____________ respectfully submits to the court [his] [her] account as guardian of the estate of ___________ for the period beginning on [date] and ending on [date]. This account is submitted because [insert the occasion for filing of account as set forth in Ark. Code Ann. § 28-65-320].

1. Charges to accountant: [If this is the first account, the first item should be the value of the estate as reflected by the inventory. If a subsequent account, the first item should be the balance shown on the previous account. Thereafter list separately and describe in detail (a) additional property received by accountant; (b) all income; and (c) gains from the sale, conveyance or other disposition of any property received by the accountant during the accounting period. Show the date of each transaction.]

Total charges to accountant: $ _________

2. Credits, other than payments to distributees, to which accountant is entitled: [List separately (a) all disbursements, other than payments to distributees, and (b) all losses sustained on sales, conveyances or other dispositions of any property, describing each item in full. Show the date of each transaction.]

Total: $ _________

3. Credits for money paid or assets delivered to distributees: [Itemize each disbursement of cash and describe in detail other assets delivered, showing opposite each asset the amount at which its value was estimated in the inventory or, if purchased by the accountant, its cost. Show the date of each transaction.]

Total: $ _________

SUMMARY OF ACCOUNT

Charges to accountant: $ ________ Credits as per paragraph 2: $ ________ Credits as per paragraph 3: $ ________ Total Credits: $ ________ Balance remaining in hands of accountant: $ ________

4. Description of balance remaining in hands of accountant: [List separately and describe in detail each item of property remaining in the accountant's hands, showing the inventory value or cost of each.]

5. Changes in form of assets not affecting balance: [List separately and describe in detail all changes in the form of assets resulting from collections or sales at inventory or cost value and other such transactions. Show the date of each transaction.]

6. All outstanding liabilities of the estate of which accountant has knowledge are:

Total Liabilities: $ ________

Vouchers evidencing cash disbursements and receipts evidencing other assets delivered for which accountant has taken credit are attached to this account.

THEREFORE, having fully accounted for the administration of this estate for the period set out above, accountant requests that, after proper advertisement and notice, if any, required by the law or by the court, this account be examined, approved, and confirmed by the court, and that accountant be allowed the sum of $ _________ as [his] [her] fee for services rendered during the period covered by this account.

_______________________________ [Signature]

[Affidavit]

Reporter's Notes to Form 31: Pursuant to Ark. Code Ann. § 28-65-320, a guardian of the estate must file with the court annually, within 60 days after the anniversary date of his or her appointment and also within 60 days after termination of his or her guardianship, a written verified accounting. Notice of hearing of every accounting must be given to the same persons in the same manner as required in connection with the petition to appoint the guardian, except that the court may dispense with notice to a mentally incompetent ward upon a satisfactory showing that such notice would be detrimental to his or her well-being.

Form 32. [Caption] ANNUAL REPORT OF GUARDIAN

______________, the duly appointed, qualified, and acting guardian of ______________, an incapacitated person, submits this annual report to the court in accordance with Ark. Code Ann. § 28-65-322.

The current mental, physical, and social condition of the incapacitated person is: [Provide a summary.]

The present living arrangements of the incapacitated person are: [Describe those arrangements.]

The need for continued guardianship services is: [State whether there is a need for such services.]

Submitted with this annual report is the petitioner's accounting of the guardianship estate for the period beginning on [date] and ending on [date].

________________________________ [Signature]

Reporter's Notes to Form 32: All guardians must file an annual report with the court, setting forth the matters reflected in this form. See Ark. Code Ann. § 28-65-322. Any other information which is requested by the court or is necessary in the opinion of the guardian must also be included.

Form 33. [Caption] AGREEMENT OF DEPOSITORY

The undersigned, being [a bank in Arkansas insured by the Federal Deposit Insurance Corporation] [a savings and loan association in Arkansas insured by the Federal Savings Loan Association Corporation] [a credit union in Arkansas insured by the National Credit Union Administration], received on deposit from _______________, as guardian of the estate of _______________, an incapacitated person, the sum of _________ Dollars ($ _______) in cash on [date] and agrees not to permit any withdrawal from these funds unless authorized by order of this court.

Date: __________, ____.

___________________________________________ [Authorized Officer or Agent of Depository]

Reporter's Notes to Form 33: By statute, the court may dispense with a bond for the guardian when the entire guardianship is in cash deposited on interest in any of the institutions identified in the form, provided that the value of the estate so deposited is not greater than the maximum amount of insurance provided by law for a single depositor. Ark. Code Ann. § 28-65-215(e). This form must be executed on behalf of the depository and filed with the probate clerk. For an enumeration of the types of authorized investments for guardianship funds, see Ark. Code Ann. § 28-65-311.

Arkansas Rules of Civil Procedure

Rule 4. SUMMONS

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(c) By Whom Served: Service of summons shall be made by (1) a sheriff of the county where the service is to be made, or his or her deputy; (2) any person not less than eighteen years of age appointed for the purpose of serving a summons by either the court in which the action is filed or a court in the county in which service is to be made; (3) any person authorized to serve process under the law of the place outside this state where service is made; or (4) in the event of service by mail pursuant to subdivision (d)(8) of this rule, by the plaintiff or an attorney of record for the plaintiff.

* * *

(e) Other Service: Whenever the law of this state authorizes service outside this state, the service, when reasonably calculated to give actual notice, may be made:

* * *

(3) By any form of mail addressed to the person to be served with a return receipt requested and delivery restricted to the addressee or the agent of the addressee as provided in subdivision (d)(8) of this rule;

* * *

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 for 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.

Rule 5. SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS

* * *

(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 unless the court so orders service upon the party himself or service is to be with respect to an the action is one in which a final judgment has been entered but and the court has continuing jurisdiction.

(2) Except as provided in paragraph (3) of this subdivision, service Service upon the attorney or upon the party shall be made by delivering a copy to him or by mailing 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; or, 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).

(c) Filing. * * *

(2) If the clerk's office has a facsimile machine, the The clerk may shall accept facsimile transmissions of any paper filed under this rule, providing that it is transmitted on to bond-type paper that can be preserved for a period of at least ten years or on to nonbond paper if an original is substituted for the facsimile copy with ten days of transmission. and may charge a fee of $1.00 per page. Any signature appearing on a facsimile copy shall be presumed authentic until proven otherwise. The clerk shall stamp or otherwise mark a facsimile copy as filed A facsimile copy shall be deemed received when it is transmitted and 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. without regard to the hours of operation of the clerk's office. The 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.

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 to hold former spouse in contempt for failure to pay 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 to charge a fee of $1.00 per page. Previously, the rule provided 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.

Rule 26. GENERAL PROVISIONS GOVERNING DISCOVERY

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(b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

(1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the issues in the pending actions, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other parity, including the existence, description, nature, custody, condition, identity and location of any books, documents, or other tangible things and the identity and location of persons who have knowledge of any discoverable matter or who will or may be called as a witness at the trial of any cause. It is not ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

* * *

(e) Supplementation of Responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except 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 he obtains information upon the basis of which (A) he knows that the response was incorrect when made, or (B) he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment 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.

* * *

Addition to Reporter's Notes, 1999 Amendment: The first sentence of subdivision (b)(1) has been amended to correct an oversight that dates to the rule's adoption. As revised, 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.

Rule 33. INTERROGATORIES TO PARTIES

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(d) Option to Produce Business Records. Where the answers to an interrogatory may be derived or ascertained from the business records of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, or from a compilation, abstract or summary based thereon, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries. A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily can the party served, the records from which the answer may be ascertained.

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).

Rule 34. PRODUCTION OF DOCUMENTS AND THINGS AND ENTRY UPON LAND FOR INSPECTION AND OTHER PURPOSES

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(b) Procedure. (1) The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place and manner of making the inspection and performing the related acts.

(2) The party upon whom the request has been served shall serve a written response within 30 days after the service of the request, except that a defendant must serve a response within 30 days after the service of the request upon him or within 45 days after the summons and complaint have been served upon him, whichever is longer. A shorter or longer time may be directed by the court or, in the absence of such an order, agreed to in writing by the parties subject to Rule 29. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified and inspection permitted of the remaining parts. The party submitting the request may move for an order under Rule 37 (a) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested.

[ (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.

* * *

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.

Rule 41. DISMISSAL OF ACTIONS

(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. [, provided, however, that such dismissal 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.

* * *

(d) Costs of Previously Dismissed Action. If a plaintiff who has once dismissed an action, or who has suffered an involuntary dismissal in any court, commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order. For purposes of this rule, the term "costs" means those items taxable as costs under Rule 54 (d)(2).

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).

Rule 50. MOTION FOR DIRECTED VERDICT AND FOR JUDGMENT NOTWITHSTANDING THE VERDICT

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(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 No more 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 withthis 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 re-open 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.

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 (c) of the Rules of Appellate Procedure — Civil but was added here as a reminder to counsel.

Rule 52. FINDINGS BY THE COURT

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(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.

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 (c) of the Rules of Appellate Procedure — Civil but was added here as a reminder to counsel.

Rule 54. JUDGMENTS; COSTS

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(d) Costs. (1) Costs authorized by statute or by these rules 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.

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).

Rule 55. DEFAULT

(a) When Entitled. When a party against whom a judgment for affirmative relief is sought has failed to appear plead or otherwise defend as provided by these rules, judgment by default may be entered by the court.

(b) * * *

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.

Rule 59. NEW TRIALS; AMENDMENT OF JUDGMENTS

* * *

(b) Time for Motion. A motion for new trial shall be filed not later than 10 days after the entry of judgment. 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.

* * *

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 (c) 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 — Civil

Rule 4. APPEAL — WHEN TAKEN

(a) Time for Filing Notice of Appeal . Except as otherwise provided in [subsequent sections 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. Upon a showing of failure to receive notice of the judgment, decree or order from which appeal is sought, the trial court may extend the time for filing the notice of appeal by any party for a period not to exceed sixty (60) days from the expiration of the time otherwise prescribed by these rules. Such an extension may be granted before or after the time otherwise prescribed by these rules has expired; but if a request for an extension is made after such time has expired; it shall be made by motion with such notice as the court shall deem appropriate. 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 Extended by Timely Motion . (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 , of a motion to amend the court's findings of fact or to make additional findings under Rule 52 (b), or of a motion for a new trial under Rule 59 (b) (a), the time for filingof a notice of appeal shall be extendedas provided in this rule. 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.

(c) Disposition of Posttrial Motion. If a timely motion listed in section subdivision (b) of this rule is filed in the trial court by any party, the time for appeal for all parties shall run from the entry of the order granting or denying a new trial or granting or denying any other such motion. Provided, that if the trial court neither grants nor denies a motion of the type set forth in paragraph (2) of this subdivision within thirty (30) days of its filing, the motion will be deemed denied as of the 30th day. A notice of appeal filed before the disposition of any such motion or, if no order is entered, prior to the expiration of the 30-day period shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion or from the expiration of the 30-day period. No additional fees shall be required for such filing.

(d) Time for Appeal from Disposition of Motion. Upon disposition of a motion listed in section (b) of this rule, any party desiring to appeal from the judgment, decree or order originally entered shall have thirty (30) days from the entry of the order disposing of the motion or the expiration of the 30-day period provided in section (c) of this rule within which to give 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) (e) 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.

(f) Notice of Appeal Filed on Same Day. A notice of appeal filed on the same day as the judgment, decree, or order appealed from shall be effective.

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.