Opinion
Delivered November 20, 2003
The Arkansas Supreme Court Committee on Civil Practice has submitted its annual proposals and recommendations for changes in rules of procedure affecting civil practice. We have reviewed the Committee's work, and we now publish the suggested amendments for comment from the bench and bar. The Reporter's Notes explain the changes, and the proposed changes are set out in "line-in, line-out" fashion (new material underlined; deleted material lined through).
We express our gratitude to the Chair of the Committee, Judge Henry Wilkinson, 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, 2004, and they should be addressed to: Clerk, Supreme Court of Arkansas, Attn: Civil Procedure Rules, Justice Building, 625 Marshall Street, Little Rock, Arkansas 72201.
New material underlined. Deleted material lined through. A. Rules of Civil Procedure
Rule 4. Summons.
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(d) * * *
(8)(A)(i) Service of a summons and complaint upon a defendant of any class referred to in paragraphs (1) through (5), and (7) of this subdivision (d) of this rule may be made by the plaintiff or an attorney of record for the plaintiff 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. The addressee must be a natural person specified by name, and the agent of the addressee must be authorized in accordance with U.S. Postal Service regulations. However, service on the registered agent of a corporation or other organization may be made by certified mail with a return receipt requested. (ii) Service pursuant to this paragraph (A) shall not be the basis for the entry of a default or judgment by default unless the record contains a return receipt signed by the addressee or the agent of the addressee or a returned envelope, postal document or affidavit by a postal employee reciting or showing refusal of the process by the addressee. If delivery of mailed process is refused, the plaintiff or attorney making such service, promptly upon receipt of notice of such refusal, shall mail to the defendant by first class mail a copy of the summons and complaint and a notice that despite such refusal the case will proceed and that judgment by default may be rendered against him unless he appears to defend the suit. Any such default or judgment by default may be set aside pursuant to Rule 55(c) if the addressee demonstrates to the court that the return receipt was signed or delivery was refused by someone other than the addressee or the agent of the addressee.
Addition to Reporter's Notes, 2004 Amendment: Subdivision (d)(8)(A) of the rule has been divided into two paragraphs. In a change that reflects settled case law, paragraph (A)(i) has been rewritten to state expressly that the agent of the addressee "must be authorized in accordance with U.S. Postal Service regulations." See Green v. Yarbrough, 299 Ark. 175, 771 S.W.2d 760 (1989). For the applicable postal service regulations, see Domestic Mail Manual S916.
More importantly, paragraph (A)(i) has been amended to establish less onerous requirements when service is made on the registered agent of a corporation or other organization. In that situation, the new last sentence provides that service may be made by certified mail, return receipt requested. Because delivery need not be restricted, there is no requirement that the addressee be a natural person or that the agent of the addressee be authorized in accordance with postal service regulations. See generally Domestic Mail Manual S912 (certified mail), S915 (return receipt).
Rule 6. Time.
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(b) Enlargement. When by these rules or by a notice given thereunder or by order of the court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice, order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of mistake, inadvertence, surprise, excusable neglect, or other just cause, but it may not extend the time for taking an action under Rules 4(i), 50(b), 52(b), 59(b), (d) and (e), and 60(b), except to the extent and under the conditions stated in them.
Addition to Reporter's Notes, 2004 Amendment: Subdivision (b) of the rule has been amended by adding Ark. R. Civ. P. 4(i) to the list of exceptions, thereby codifying the holding in Smith v. Sidney Moncrief Pontiac, No. 02-449 (June 19, 2003).
Rule 12. Defenses and objections — When and how presented — By pleading or motion — Motion for judgment on the pleadings.
(a) When Presented. (1) A defendant shall file his or her answer within twenty (20) 20 days after the service of summons and complaint upon him or her, except that: (A) a defendant not residing in this state shall file an answer within 30 days after service; (B) a defendant served under Rule 4(f) shall file an answer within 30 days from the date of first publication of the warning order; and (C) a defendant incarcerated in any jail, penitentiary, or other correctional facility in this state shall file an answer within 60 days after service. when service is upon a non-resident of this state or a person incarcerated in any jail, penitentiary, or other correctional facility in this state, in which event he shall have thirty (30) days after service of summons and complaint upon him within which to file his answer. Where service is made under Rule 4(f), the defendant shall have thirty (30) days from the date of the first publication of the warning order within which to file his answer. A party served with a pleading stating a cross-claim or counterclaim against him shall file his answer or reply thereto within twenty (20) 20 days after service upon him. The court may, upon motion of a party, extend the time for filing any responsive pleading.
(2) The filing of a motion permitted under this rule alters these periods of time as follows, unless a different time is fixed by order of the court: (1) If (A) if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be filed within ten (10) 10 days after notice of the court's action; (2) (B) if the court grants a motion for a more definite statement, the responsive pleading shall be filed within ten (10) 10 days after service of the more definite statement. Provided, that nothing herein contained shall prevent a defendant summoned in accordance with Rule 4(f) from being allowed, at any time before judgment, to appear and defend the action; and, upon a substantial defense being disclosed, from being allowed a reasonable time to prepare for trial.
(3) When any case is removed to federal court and subsequently remanded, the plaintiff shall file a certified copy of the order of remand with the clerk of the circuit court and shall forthwith give written notice of such filing to all parties in accordance with Rule 5. Any adverse party shall have 20 days from the receipt of such notice within which to file an answer or a motion permitted under this rule.
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Addition to Reporter's Notes, 2004 amendment: Subdivision (a) has been divided into three paragraphs and other stylistic made. The two departures from prior law appear in what are now paragraphs (1) and (3). Under the first paragraph, the time for an incarcerated defendant to file an answer has been increased from 30 days to 60 days. This change recognizes the role of prison employees under Rule 4(d)(4) in delivering the summons and complaint, the possibility that delays in such delivery may occur, and the likelihood that securing legal representation will take longer for incarcerated persons than for other defendants.
Paragraph (3) deals with an issue previously covered in Rule 55(f), i.e., the time period for responding to a complaint after a federal court has remanded a removed case to state court. The new paragraph expands that period from 10 to 20 days and states more clearly the point at which the time begins to run. See NCS Healthcare v. W.P. Malone, Inc., 350 Ark. 520, 88 S.W.3d 852 (2002). Because of new language in Rule 55(f), a defendant who filed an answer or Rule 12 motion in federal court while the case was pending there need not, following remand, take the same action in state court within the 20-day grace period to avoid a default judgment. See Addition to Reporter's Notes to Rule 55 (2004 amendment).
Rule 17. Parties plaintiff and defendant.
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(c) Prisoners. No judgment shall be rendered against a prisoner in the penitentiary until after a defense made for him by his attorney, or, if there is none, by a person appointed by the court to defend for him.
Addition to Reporter's Notes, 2004 Amendment: Subdivision (c), which has no counterpart in Fed.R.Civ.P. 17, has been deleted. Borrowed from a superseded statute that was part of the Civil Code of 1868, the subdivision stated that "[n]o judgment shall be rendered against a prisoner in the penitentiary until after a defense made for him by his attorney, or, if there is none, by a person appointed by the court to defend for him." Because of the elimination of subdivision (c), prisoners no longer receive special treatment with respect to default judgments. See Zardin v. Terry, 275 Ark. 452, 631 S.W.2d 285 (1982). However, the safeguards in Rule 4(d)(4) and Rule 12(a)(1) afford incarcerated persons notice, the opportunity to be heard, and the opportunity to obtain counsel. Rule 12(a)(1), as amended in 2004, provides that incarcerated persons have 60 days after service of process in which to file an answer, compared to the 20-day period for residents of the state. This differential reflects the role of prison employees in delivering the summons and complaint, as well as the likelihood that an incarcerated person will need more time than other defendants to arrange for legal representation.
Rule 35. Physical and mental examination of persons.
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(c) Medical Records. (1) A party who relies upon his or her physical, mental, or emotional condition as an element of his or her claim or defense shall, within 30 days after the request of any other party, execute an authorization to allow such other party to obtain copies of his or her medical records. 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 term "medical records" means any writing, document, or electronically stored information pertaining to or created as a result of treatment, diagnosis, or examination of a patient.
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Addition to Reporter's Notes, 2004 Amendment: A new sentence has been added to subdivision (c)(1) to provide that the 30-day response time may be lengthened or shorted by the court or by written agreement of the parties. Corresponding provisions appear in Rule 33(b) and Rule 34(b)(2), which apply to interrogatories and production of documents, respectively.
Rule 52. Findings by the court.
(a) Effect. If requested by a party at any time prior to entry of judgment, in all contested actions tried upon the facts without a jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58; and in granting or refusing interlocutory injunctions, the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for purposes of review. Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence), and due regard shall be given to the opportunity of the circuit court to judge the credibility of the witnesses. The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein. Findings of fact and conclusions of law are unnecessary on decisions of motions under these rules.
(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 previously made 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.
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Addition to Reporter's Notes, 2004 Amendment: Subdivision (a) has been amended to make plain that a request for findings of fact and conclusions of law may be made "at any time prior to entry of judgment." A companion change in subdivision (b)(1) emphasizes that a motion after entry of judgment pursuant to that provision is for a different purpose, i.e., to amend findings "previously made" or to make additional findings. The effect of these changes is to overrule Apollo Coating RSC, Inc. v. Brookridge Funding Corp., 103 S.W.3d 682 (Ark.App. 2003), which held that a motion for findings and conclusions pursuant to Rule 52(a) could be made after entry of judgment.
Rule 55. Default.
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(f) Remand from Federal Court. No judgment by default shall be entered against a party in an action removed to federal court and subsequently remanded if that party filed an answer or a motion permitted by Rule 12 in the federal court during removal. Whenever a case has been removed to a United States court and thereafter remanded, no judgment by default shall be entered prior to the expiration of ten (10) days after service of notice upon defendants that the order remanding such case has been filed. Within such time the defendants may move or plead as they might have done had the case not been removed.
Addition to Reporter's Notes, 2004 Amendment: Subdivision (f) has been rewritten to modify and clarify the practice when a case is removed to federal court and then remanded. A corresponding change has been made in Rule 12(a). These amendments are based on a Texas rule, see Tex. R. Civ. P. 237a, and a similar approach has been taken in other states as well.
Under the original version of subdivision (f), a defendant had a 10-day grace period during which file an answer or Rule 12 motion after a removed case was remanded to state court. Even if the defendant had so responded to the complaint while the case was pending in federal court after its removal, he or she was required to file another answer or motion in circuit court to avoid a default judgment. See NCS Healthcare v. W.P. Malone, Inc., 350 Ark. 520, 88 S.W.3d 852 (2002).
Amended Rule 12(b)(3) expands the grace period to 20 days, during which time a defendant who filed neither an answer nor a Rule 12 motion in the federal court must take such action in the state court. By contrast, if the defendant responded to the complaint in federal court while the case was pending there, Rule 55(f) prohibits entry of judgment by default upon remand. Consequently, the defendant need not respond again in circuit court, within the 20-day period, to avoid such a judgment. See Laguna Village, Inc. v. Laborers International Union, 672 P.2d 882 (Cal. 1983); Banks v. Allstate Indemnity Co., 757 N.E.2d 776 (Ohio App. 2001).
Because Arkansas procedural rules differ in some respects from those in the federal courts, however, Rule 55(f) does not require the circuit court to adopt the documents filed in federal court for all purposes. See Laguna Village, supra. For example, the plaintiff may move for an order from the circuit court directing the defendant to revise his or her answer to conform to the Arkansas pleading rules. In addition, the "bulk filing" of the federal pleadings and motions in the circuit court will not suffice. Rather, a party relying on a pleading or motion filed in federal court is charged with the responsibility of making the circuit court aware of the filings and must, if challenged, be able to show that the document was served on the other party. NCS Healthcare, supra; Banks, supra.
B. Rules of Appellate Procedure — Civil
Rule 4. Appeal — When taken.
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(b) Extension of time for filing notice of appeal.
(1) * * *
(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 circuit court may shall, 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) 14 days from the day 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. Expiration of the 180-day period specified in this paragraph does not limit the circuit court's power to act pursuant to Rule 60 of Arkansas Rules of Civil Procedure.
Addition to Reporter's Notes, 2004 Amendment: The first sentence of subdivision (b)(3) has been amended by replacing the word "may" with "shall," thereby requiring the circuit court to extend the time under the circumstances described in this provision. This change has the effect of overruling Arnold v. Camden News Pub. Co., 110 S.W.3d 268 (Ark. 2003).
A new third sentence has been added to subdivision (b)(3) to make plain that although an extension of time is no longer possible because more than 180 days have passed, the circuit court retains its authority to take action under Ark. R. Civ. P. 60. This provision has the effect of overruling Barnett v. Monumental Gen. Ins. Co., 97 S.W.3d 901 (Ark.App. 2003).
Rule 9. Extension of time when clerk's office is closed. Time extension when last day for action falls on Saturday, Sunday or holiday.
Whenever the last day for taking any action under these rules or under the Rules of the Supreme Court and Court of Appeals falls on a Saturday, Sunday, or legal holiday, or other day when the clerk's office is closed, the time for such action shall be extended to the next business day.
Addition to Reporter's Notes, 2004 Amendment: The rule has been amended to address the situation in which the clerk's office is closed for reasons other than weekends and legal holidays. This change mirrors an amendment to Ark. R. Civ. P. 6(a) in 2003 that incorporates the Supreme Court's holding in Honeycutt v. Fanning, 349 Ark. 324, 78 S.W.3d 96 (2002).
C. Supreme Court Rules
Rule 2-3. Petitions for rehearing.
(a) Filing and service. A petition for rehearing, a brief in support of the petition, and evidence of service of the petition, brief, and a certificate of merit stating that the petition is not filed for the purpose of delay, shall be filed within 18calendar days from the date of decision.
(b) Response. The respondent may file a brief on the following Monday (in the Supreme Court) or Wednesday (in the Court of Appeals) or within seven (7) calendar days from the filing of the petition for rehearing, whichever last occurs, or may, on or before that time, obtain an extension of one (1) week upon written motion to the Court.
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Rule 2-4. Petitions for review.
(a) Contents of petition. A petition to the Supreme Court for review of a decision of the Court of Appeals must be in writing and must be filed within 18 calendar days from the date of the decision, regardless of whether a petition for rehearing is filed with the Court of Appeals. The petition may be typewritten and shall not exceed three 8 1/2" × 11", double-spaced pages in length. The petition must briefly and distinctly state the basis upon which the case should be reviewed and may include citations of authority or references to statutes or constitutional provisions. The petition can only be filed by a party to the appeal and is otherwise subject to Rule 1-2(e).
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(f) Supplemental and reply briefs. Any party may request permission to submit a supplemental brief by motion, filed with the Clerk and served upon all other parties, within two weeks after the granting of review. The moving party's brief shall be due twenty 20 calendar days from the granting of the motion. Other parties may file responsive supplemental briefs withinten 10 calendar days of the date the moving party's supplemental brief is filed. A reply brief may be filed within five calendar days after the filing of a responsive supplemental brief. No supplemental brief, responsive supplemental brief, or reply brief submitted pursuant to this Rule shall exceed ten 10 pages in length. These briefs shall otherwise conform to the requirements of Rule 4-1.
Rule 4-3. Briefs in criminal cases.
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(k) Continuances and extensions of time.
(1) The Clerk or a deputy clerk may extend the due date of any brief by seven (7) calendar days upon oral request. If such an extension is granted, no further extension shall be entertained except by the Court upon a written motion showing good cause.
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Rule 4-4. Filing and service of briefs in civil cases.
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(f) Continuances and extensions of time.
(1) The Clerk or a deputy clerk may extend the due date of any brief by seven (7) calendar days upon oral request. If such an extension is granted, no further extension shall be entertained except by the Court upon a written motion showing good cause.
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Rule 5-1. Oral Arguments.
(a) Written request required. Any party may request oral argument by filing, contemporaneously with that party's brief, a letter, separate from the brief, stating the request with a copy to all parties. The request for oral argument may be filed contemporaneously with either the party's initial brief or reply brief. Oral argument will be allowed upon request unless it is determined that
(1) the appeal is frivolous;
(2) the dispositive issue or set of issues has been decided authoritatively; or
(3) the briefs and record adequately present the facts and legal arguments, and oral argument would not significantly aid the decision-making process.
Within 15 calendar days of the mailing of the letter notifying the Clerk and the other party or parties of the request for oral argument, counsel and the parties may submit to the Clerk, in writing, dates when they will be unavailable for argument. In addition to the reasons listed above, if it appears that attempts to schedule oral argument may result in undue delay, the Court may decide any case without oral argument.
The court may at its discretion and on its own motion select any case for oral argument when it appears to the court that the matters presented for consideration are such that oral arguments are appropriate for a full presentation of the issues.
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D. Inferior Court Rules
Rule 9. Appeals to circuit court.
(a) Time for Taking Appeal. All appeals in civil cases from inferior courts to circuit court must be filed in the office of the clerk of the particular circuit court having jurisdiction of the appeal within thirty (30) 30 days from the date of the entry of judgment. The 30-day period is not extended by a motion for judgment notwithstanding the verdict, a motion for new trial, a motion to amend the court's findings of fact or to make additional findings, or any other motion to vacate, alter or amend the judgment.
(b) How Taken. An appeal from an inferior court to the circuit court shall be taken by filing a record of the proceedings had in the inferior court. Neither a notice of appeal nor an order granting an appeal shall be required. It shall be the duty of the clerk to prepare and certify such record when requested by the appellant and upon payment of any fees authorized by law therefor. The appellant shall have the responsibility of filing such record in the office of the circuit clerk.
(c) Unavailability of Record. When the clerk of the inferior court, or the court in the absence of a clerk, neglects or refuses to prepare and certify a record for filing in the circuit court, the person desiring an appeal may perfect his appeal on or before the 30th day from the date of the entry of the judgment in the inferior court by filing an affidavit in the office of the circuit court clerk showing that he has requested the clerk of the inferior court (or the inferior court) to prepare and certify the records thereof for purposes of appeal and that the clerk (or the court) has neglected to prepare and certify such record for purposes of appeal. A copy of such affidavit shall be promptly served upon the clerk of the inferior court [or the court] (or the court) and the adverse party.
Addition to Reporter's Notes, 2004 Amendment: The new second sentence of subdivision (a) incorporates the holding of the Court of Appeals in Barnett v. Howard, 79 Ark. App. 293, 94 S.W.3d 342 (2002). The new second sentence of subdivision (b) provides that neither a notice of appeal nor order granting an appeal is required to perfect an appeal to circuit court. The Supreme Court has made plain that all that is necessary is the timely filing of the inferior court record or an affidavit that the record is unavailable. E.g., McBride v. State, 297 Ark. 410, 762 S.W.2d 785 (1989); Ottens v. State, 316 Ark. 1, 871 S.W.2d 329 (1994). However, an express statement in Rule 9 was deemed desirable in light of reports that some clerks have demanded a notice of appeal or court order.