Opinion
Delivered January 27, 2000
The 1999 report of the Arkansas Supreme Court Committee on Civil Practice contained a number of suggested rules changes. The Committee's suggestions were published in our per curiam order of December 9, 1999, so that members of the bench and bar could have an opportunity to comment. We thank those who took the time to review the proposals and submit comments.
The proposals, with some revisions, will be implemented. We again express our gratitude to the members of our Civil Practice Committee, chaired by Judge John Ward, and to the Committee Reporter, Professor John J. Watkins, for the Committee's diligence in performing the important task of keeping our civil rules current, efficient, and fair.
The proposals with regard to Rule 8, that part of Rule 12(h)(3) dealing with transfer fees, and parts of Rule 60 (c) are not being adopted at this time.
We adopt the following amendments to be effective immediately, and republish the rules and Reporter's Notes as set out below.
Arkansas Rules of Civil Procedure1. Rule 5(c)(1) is amended to provide that discovery materials (excluding requests for admissions) shall not be filed with the clerk unless the trial court orders otherwise and shall read as follows:
(c) Filing. (1) All papers after the complaint required to be served upon a party or his attorney shall be filed with the clerk of the court either before service or within a reasonable time thereafter. The clerk shall note the date and time of filing thereon. However, proposed findings of fact, proposed conclusions of law, trial briefs, proposed jury instructions, and responses thereto may but need not be filed unless ordered by the court. Depositions, interrogatories, requests for production or inspection, and answers and responses thereto shall not be filed unless ordered by the court. When such discovery documents are relevant to a motion, they or the relevant portions thereof shall be submitted with the motion and attached as an exhibit unless such documents have already been filed. The clerk shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in the proper form.
Addition to Reporter's Notes, 2000 Amendment: Subdivision (c)(1) of the rule has been amended to provide that discovery materials, except for requests for admission, shall not be filed with the clerk unless the court so orders. This is the practice in the federal district courts in Arkansas and in several states. See Rule 5.5(f), Rules of the U.S. District Courts for the Eastern and Western Districts of Arkansas; Rule 2-401(d)(2), Md. R. Civ. P.; Rule 191.4, Tex.R.Civ.P. Under the prior version of the rule, the filing of such materials was optional absent a court order.
2. Rule 6(a) is amended to change the time period in the third sentence from 11 days to 14 days and shall read as follows:
(a) Computation. In computing any period of time prescribed or allowed by these rules, by order of the Court or by any applicable statute, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday. When the period of time prescribed or allowed is less than fourteen (14) days, intermediate Saturdays, Sundays, or legal holidays shall be excluded in the computation. As used in this rule and Rule 77(c), "legal holiday" means those days designated as a holiday by the President or Congress of the United States or designated by the laws of this State.
Addition to Reporter's Notes, 2000 Amendment: The time period in the third sentence of sub-division (a) has been changed from eleven days to fourteen days, the intent being to eliminate confusion in the computation of response time when a motion has been served by mail under subdivision (d).
3. Rule 12(h)(3) is amended by rewriting the second sentence of the subdivision and shall read as follows:
(h) Waiver or Preservation of Certain Defenses.
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(3) Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action or direct that the case be transferred to the proper court. Upon a determination that venue is improper, the court shall dismiss the action or direct that it be transferred to a county where venue would be proper, with the plaintiff having an election if the action could be maintained in more than one county.
Addition to Reporter's Notes, 2000 Amendment: The second sentence of subdivision (h)(3) has been amended by replacing the introductory phrase "whenever it appears" with "upon a determination." This change eliminates the unintended suggestion in the original version of the sentence that a motion to dismiss for improper venue, like a motion to dismiss for lack of subject matter jurisdiction, can be made at any time. As subdivision (h)(1) of the rule makes plain, improper venue is a waivable defense.
4. Rule 45 is amended to allow attorneys to issue subpoenas and to provide an official form for subpoenas and shall read as follows:
(a) Form and Issuance. Every subpoena shall be issued by the clerk, under seal of court, shall state the name of the court and title of the action, and shall command each person to whom it is directed to appear and give testimony at the time and place therein specified. An attorney admitted to practice in this State, as an officer of the court, may also issue and sign a subpoena in any action pending in a court of this State in which the attorney is counsel of record.
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(d) Subpoena for Trial or Hearing. At the request of any party the clerk of the court before which the action is pending shall issue a subpoena for a trial or hearing, or a subpoena for the production at a trial or hearing of documentary evidence, signed and sealed, but otherwise in blank, to the party requesting it, who shall fill it in before service. The subpoena may also be issued by an attorney pursuant to subdivision (a) of this rule. A witness, regardless of his county of residence, shall be obligated to attend for examination on trial or hearing in a civil action anywhere in this State when properly served with a subpoena at least two (2) days prior to the trial or hearing. The court may grant leave for a subpoena to be issued within two (2) days of the trial or hearing. The subpoena must be accompanied by a tender of a witness fee calculated at the rate of $30.00 per day for attendance and $0.25 per mile for travel from the witness' residence to the place of the trial or hearing. In the event of telephone service of a subpoena by a sheriff or his deputy, the party who caused the witness to be subpoenaed shall tender the fee prior to or at the time of the witness' appearance at the trial or hearing. If a continuance is granted and if the witness is provided adequate notice thereof, reservice of the subpoena shall not be necessary. Any person subpoenaed for examination at the trial or hearing shall remain in attendance until excused by the party causing him to be subpoenaed or, after giving testimony, by the court.
(e) Subpoena for Taking Depositions: Place of Examination. Upon the filing of a notice of deposition upon oral examination pursuant to Rule 30(b), the clerk of the court in which the action is pending shall, upon the request of the party giving notice, issue a subpoena in accordance with the notice. The subpoena may also be issued by an attorney pursuant to subdivision (a) of this rule. The subpoena may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents, or tangible things which constitute or contain matters within the scope of the examination permitted by Rule 26(b), but in that event the subpoena will be subject to the provisions of Rule 26(c) and subdivision (b) of the rule. The witness must be properly served at least five (5) business days prior to the date of the deposition, unless the court grants leave for subpoena to be issued within that period. The subpoena must be accompanied by a tender of a witness fee calculated at the rate of $30.00 per day for attendance and $0.25 per mile for travel from the witness' residence to the place of the deposition.
The person to whom the subpoena is directed may, within ten (10) days after the service thereof or on or before the time specified in the subpoena for compliance if such time is less than ten (10) days after service, serve upon the attorney causing the subpoena to be issued written objection to inspection or copying of any or all of the designated materials. If objection is made, the party causing the subpoena to be issued shall not be entitled to inspect and copy the materials except pursuant to an order of the court before which the deposition may be used. The party causing the subpoena to be issued may, if objection has been made, move, upon notice to the deponent, for an order at any time before or during the taking of the deposition.
A witness subpoenaed under this subdivision may be required to attend a deposition at any place within 100 miles of where he resides, or is employed, or transacts his business in person, or at such other convenient place as is fixed by an order of court.
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Addition to Reporter's Notes, 2000 Amendment: Subdivision (a) has been amended to permit an attorney admitted to practice in Arkansas, as an officer of the court, to issue subpoenas in Arkansas cases in which he or she is counsel of record. Cross-references to subdivision (a) have also been added to subdivisions (d) and (e) of the rule. This authority does not apply to subpoenas pursuant to subdivision (f), which governs depositions for use in out-of-state proceedings; accordingly, a subpoena under subdivision (f) may be issued only by the clerk. The phrase "admitted to practice" in amended subdivision (a) refers not only to attorneys licensed in Arkansas, but also to those admitted pro hac vice.
In 1991, the corresponding federal rule was amended to allow attorneys to issue subpoenas. See Rule 45(a)(3), Fed.R.Civ.P. The federal rule expressly provides for sanctions, including lost earnings and reasonable attorneys' fees, against an attorney "responsible for issuance and service of a subpoena" that "impos[es] an undue burden or expense on the person subject to that subpoena." Rule 45(c)(1), Fed.R.Civ.P. While a similar provision has not been added to the Arkansas rule, the courts have inherent authority to sanction attorneys who abuse their power to issue subpoenas.
Subpoena Form
The following form for subpoenas is adopted and shall be published in the notes immediately following Rule 45 in the Court Rules volume of the Arkansas Code:
Issued by the ____________ COURT _____________ County, Arkansas
________________________ SUBPOENA IN A CIVIL CASE v. CASE NUMBER ______________
________________________
TO: _______________________
YOU ARE COMMANDED to appear in the ___________ Court of ___________ County, Arkansas, at the place, date, and time specified below to testify in the above case.
Place of Testimony Courtroom __________________________
Date and Time ____________________________________________________________________
YOU ARE COMMANDED to appear at the place, date, and time specified below to testify in the taking of a deposition in the above case.
Place of Deposition Date and Time ____________________________________________________________________
YOU ARE COMMANDED, at the time of the trial, hearing or deposition described above, to produce and permit inspection and copying of the following documents or objects (list documents or objects):
____________________________________________________________________ Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers, directors, managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. Arkansas Rules of Civil Procedure 30(b)(6).
Issuing Officer Signature and Title Date (Indicate if Attorney for Plaintiff or Defendant) ___________________________________________________________________ Issuing Officer's Name, Address, and Phone Number ___________________________________________________________________
PROOF OF SERVICE
____________________________________________________________________ Date Place
SERVED ____________________________________________________________________ Served On (Print Name) Manner of Service
____________________________________________________________________ Served By (Print Name) Title
DECLARATION OF SERVER
I declare, under penalty of perjury under the laws of the State of Arkansas that the foregoing information contained in the Proof of Service is true and correct.
Executed on ____________________________ __________________________ Date Signature of Server
__________________________ Address of Server
NOTICE TO PERSONS SUBJECT TO SUBPOENAS
Regardless of his or her county of residence, a witness subpoenaed for examination at a trial or hearing must be properly served with a subpoena at least two days prior to the trial or hearing, or within a shorter time if the court so orders. The subpoena must be accompanied by a witness fee calculated at the rate of $30.00 per day for attendance and $0.25 per mile for travel from the witness' residence to the place of the trial or hearing. Rule 45(d), Ark.R.Civ.P.
A witness subpoenaed in connection with a deposition must be properly served with a subpoena at least five business days prior to a deposition, or within a shorter time if the court so orders. The witness is required to attend a deposition at any place within 100 miles of where he or she resides, is employed, or transacts business in person, or at such other convenient place set by court order. The subpoena must be accompanied by a witness fee calculated at the rate of $30.00 per day for attendance and $0.25 per mile for travel from the witness' residence to the place of the deposition. Rule 45(e), Ark.R.Civ.P.
A subpoena may command the person to whom it is directed to produce for inspection any books, papers, documents, or tangible things designated in the subpoena. The person subpoenaed may ask the court to quash or modify the subpoena if it is unreasonable or oppressive or to require that the person on whose behalf the subpoena is issued pay the reasonable cost of such production. Rule 45(b), Ark.R.Civ.P. If the subpoena is issued in connection with a deposition, the person subpoenaed may object in writing to inspection or copying of any or all of the designated materials or seek a protective order from the court. If a written objection is made within ten days of service of the subpoena or on or before the time specified for compliance if such time is less than ten days, the party causing the subpoena to be issued is not entitled to inspect the materials unless the court so orders. Rule 45(d), Ark.R.Civ.P.
When a witness fails to attend in obedience to a subpoena or intentionally evades the service of a subpoena by concealment or otherwise, the court may issue a warrant for arresting and bringing the witness before the court to give testimony and answer for contempt. Rule 45(g), Ark.R.Civ.P.
5. Rule 60 is amended to set a 90-day limitation on the trial court's authority to modify or correct errors in a judgment except that the court may correct clerical errors at any time; to permit the court to set aside a judgment after 90 days for misrepresentation or fraud by an adverse party; and to change the cross-reference in subdivision (c) (1) from Rule 59 (c) to Rule 59 (b). The rule shall read as follows:
(a) Ninety-Day Limitation. To correct errors or mistakes or to prevent the miscarriage of justice, the court may modify or vacate a judgment, order or decree on motion of the court or any party, with prior notice to all parties, within ninety days of its having been filed with the clerk.
(b) Exception; Clerical Errors. Notwithstanding subdivision (a) of this rule, the court may at any time, with prior notice to all parties, correct clerical mistakes in judgments, decrees, orders, or other parts of the record and errors therein arising from oversight or omission. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court and thereafter while the appeal is pending may be so corrected with leave of the appellate court.
(c) Grounds for Setting Aside Judgment, Other than Default Judgment, After Ninety Days. The court in which a judgment, other than a default judgment [which may be set aside in accordance with Rule 55(c)] has been rendered or order made shall have the power, after the expiration of ninety (90) days of the filing of said judgment with the clerk of the court, to vacate or modify such judgment or order:
(1) By granting a new trial where the grounds therefor were discovered after the expiration of ninety (90) days after the filing of the judgment, or, where the ground is newly discovered evidence which the moving party could not have discovered in time to file a motion under Rule 59(b), upon a motion for new trial filed with the clerk of the court not later than one year after discovery of the grounds or one year after the judgment was filed with the clerk of the court, whichever is the earlier; provided, notice of said motion has been served within the time limitations for filing the motion.
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(4) For misrepresentation or fraud (whether heretofore denominated intrinsic or extrinsic) by an adverse party.
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(d) * * *
Addition to Reporter's Notes, 2000 Amendment: Subdivisions (a) and (b) of the rule have been revised in response to case law. In addition, subdivision (c) has been amended by changing the cross-reference in paragraph (1) from Rule 59(c) to Rule 59(b), and by revising paragraph (4).
As originally adopted, subdivision (a) provided that the trial court could "at any time" correct clerical mistakes and errors "arising from oversight or omission." Under subdivision (b), the trial court could "correct any error or mistake or to prevent the miscarriage of justice" by modifying or setting aside a judgment, decree or order within 90 days of its having been filed with the clerk. Despite this apparent dichotomy, the Supreme Court held that the 90-day limitation in subdivision (b) also applied to subdivision (a). See, e.g., Ross v. Southern Farm Bureau Cas. Ins. Co., 333 Ark. 227, 968 S.W.2d 622 (1998); Phillips v. Jacobs, 305 Ark. 365, 807 S.W.2d 923 (1991). The Supreme Court subsequently held in Lord v. Mazzanti, 335 Ark. 25, 2 S.W.3d 76 (1999), that "clerical mistakes" under subdivision (a) can be corrected at any time, and overrruled any language to the contrary in Phillips and Ross.
This amendment is consistent with Lord v. Mazzanti, supra. As amended, subdivision (a) is a slightly modified version of former subdivision (b). It states the general rule that the court may, with prior notice to all parties, modify a judgment, decree or order within 90 days of its filing with the clerk to "correct errors or mistakes or to prevent the miscarriage of justice." Revised subdivision (b) expressly states an exception for "clerical mistakes" and errors "arising from oversight or omission," which may be corrected at any time with prior notice to all parties.
Amended paragraph (4) of subdivision (c) allows a judgment, decree or order to be modified or set aside "[f]or misrepresentation or fraud (whether heretofore denominated intrinsic or extrinsic) by an adverse party." This language, taken in part from Rule 60(b)(3) of the Federal Rules of Civil Procedure, eliminates the distinction between intrinsic and extrinsic fraud, a distinction that has been described as "shadowy, uncertain, and somewhat arbitrary." Howard v. Scott, 125 S.W. 1158, 1166 (Mo. 1909). See also C. Wright A. Miller, Federal Practice Procedure § 2861 (1995) (distinction is "very troublesome and unsound").
Under the prior rule, only extrinsic fraud was a ground for setting aside or modifying a judgment. This has resulted in unfairness. See, e.g., Ward v. McCord, 61 Ark. App. 271, 966 S.W.2d 925 (1998) (husband's concealment of bank account from wife during negotiations leading to property settlement in divorce action was not extrinsic fraud); Office of Child Support Enforcement v. Mitchell, 61 Ark. App. 54, 964 S.W.2d 218 (1998) (mother's failure to mention in affidavit filed in paternity case that a man other than defendant could have been the father of her child was not extrinsic fraud); Office of Child Support Enforcement v. Offutt, 61 Ark. App. 207, 966 S.W.2d 275 (1998) (conduct of attorney in preparing precedent containing findings not made by the court and mailing it to the judge with a letter requesting that he sign the order if no objection was received from opposing counsel did not constitute extrinsic fraud).
Arkansas Rules of Appellate Procedure — Civil6. Rule 2(a) is amended to add the following: a new paragraph (10) providing for an immediate appeal from an order denying a motion to dismiss or for summary judgment based on the defense of sovereign immunity or the immunity of a government official; a new paragraph (11) providing for an immediate appeal in cases in which the trial court has made the findings required by Rule 54 (b); and a new paragraph (12) providing for an immediate appeal from an order that is appealable under any statute in effect on July 1, 1979. The rule shall read as follows:
(a) An appeal may be taken from a circuit, chancery, or probate court to the Arkansas Supreme Court from:
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9. An order granting or denying a motion to certify a case as a class action in accordance with Rule 23 of the Arkansas Rules of Civil Procedure;
10. An order denying a motion to dismiss or for summary judgment based on the defense of sovereign immunity or the immunity of a government official;
11. An order or other form of decision which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties in a case involving multiple claims, multiple parties, or both, if the trial court has directed entry of a final judgment as to one or more but fewer than all of the claims or parties and has made an express determination, supported by specific factual findings, that there is no just reason for delay; and
12. An order appealable pursuant to any statute in effect on July 1, 1979, including Ark. Code Ann. § 16-108-219 (an order denying a motion to compel arbitration or granting a motion to stay arbitration, as well as certain other orders regarding arbitration) and § 28-1-116 (all probate court orders, except an order removing a fiduciary for failure to give a new bond or render an accounting required by the court or an order appointing a special administrator).
Addition to Reporter's Notes, 1999 Amendment: The Supreme Court added subdivisions (c) and (d) to Rule 2 in 1999 and redesignated former subdivision (c) as (e). Also, appeals under subdivisions (c)(3) and (d) were added to the list of civil cases that "take precedence" in the appellate court. These changes were recommended by an ad hoc committee on foster care and adoption. See In re Rules of Appellate Procedure — Civil, Rule 2, 336 Ark. Appx. (1999).
Addition to Reporter's Notes, 2000 Amendment: Three changes, all of which restate present law, have been made in Rule 2(a). New paragraph 10 provides that an immediate appeal lies from an order "denying a motion to dismiss or for summary judgment based on the defense of sovereign immunity or the immunity of a government official." This provision is a codification of case law. See, e.g., Ozarks Unlimited Resources Coop., Inc. v. Daniels, 333 Ark. 214, 969 S.W.2d 169 (1998); Newton v. Ethoch, 332 Ark. 325, 965 S.W.2d 96 (1998); Robinson v. Beaumont, 291 Ark. 477, 725 S.W.2d 839 (1987).
New paragraph 11 is a restatement of Rule 54(b) of the Arkansas Rules of Civil Procedure. Because noncompliance with Rule 54(b) continues to be a problem, this provision was added as a reminder to counsel. New paragraph 12 reflects the Supreme Court's holding that Rule 2(a) preserves all statutory rights of appeal in existence as of July 1, 1979, the effective date of the Rules of Appellate Procedure. See Pickens v. Black, 316 Ark. 499, 872 S.W.2d 405 (1994); American Ins. Co. v. Cazort, 316 Ark. 314, 871 S.W.2d 575 (1994). The original Reporter's Note to Rule 2 contains a statement to that effect, but the Committee on Civil Practice deemed it desirable to include specific language in the text of the rule. Paragraph 12 also includes two examples of statutes that fall within its scope.
7. Rule 4 is amended to redesignate the subdivisions of the rule and to add a new subdivision (c) incorporating statutes in election cases that depart from the general rule requiring the notice of appeal to be filed within 30 days, and the rule shall read as follows:
(a) Time for Filing Notice of Appeal. Except as otherwise provided in subdivisions (b) and (c) 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. * * *
(c) Exception for Election Cases. If a statute of this State pertaining to elections prescribes a time period for taking an appeal, the period so prescribed shall apply in any case subject to the statute.
(d) 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.
Addition to Reporter's Notes, 2000 Amendment. Former subdivision (c) of the rule has been redesignated as subdivision (d) and a new subdivision (c) added. By virtue of the new provision and a cross-reference in subdivision (a), a statutory deadline for election cases is controlling as to the timeliness of an appeal, notwithstanding the 30-day period generally applicable under subdivision (a). The amendment reflects recent Supreme Court decisions to that effect. See Citizens for a Safer Carroll County v. Epley, 338 Ark. 61, 991 S.W.2d 562 (1999) (applying Ark. Code Ann. § 3-8-205(e)(1), which provides for a 10-day period in which to file a notice of appeal in cases involving the sufficiency of petitions in local option elections); Weems v. Garth, 338 Ark. 437, 993 S.W.2d 926 (1999) (applying Ark. Code Ann. § 7-5-810, which imposes a seven-day limit for an appeal from a circuit court in an election contest).
8. Rule 5 is amended to add a new subdivision (c) providing for the filing of a partial record in connection with a motion to dismiss or other preliminary matters and shall read as follows:
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(c) Partial record. Prior to the time the complete record on appeal is filed with the clerk of the Arkansas Supreme Court as provided in this rule, any party may docket the appeal to make a motion for dismissal or for any other intermediate order by filing a partial record with the clerk. At the request of the moving party, the clerk of the trial court shall certify the portion of the record designated by that party as being a true and correct copy. It shall be the responsibility of the moving party to transmit the certified partial record to the clerk of the Arkansas Supreme Court.
Addition to Reporter's Notes, 2000 Amendment: New subdivision (c) requires the filing of a partial record in the appellate court in connection with a motion to dismiss or for any other intermediate relief. It reflects prior case law and thus does not work any change in appellate practice. See, e.g., Mitchell v. City of Mountain View, 304 Ark. 585, 803 S.W.2d 556 (1991); In re Estate of Wilkinson, 311 Ark. 311, 843 S.W.2d 316 (1992); Green v. Williford, 331 Ark. 533, 961 S.W.2d 766 (1998). The new provision is based on Rule 4(c) of the Arkansas Rules of Appellate Procedure — Criminal but departs from that rule by placing on the moving party the burden of transmitting the certified partial record to the appellate court. This requirement is consistent with Rule 7(b) of the Arkansas Rules of Appellate Procedure — Civil.