Opinion
Opinion Delivered February 10, 2005
On November 18, 2004, we published for comment the Arkansas Supreme Court Committee on Civil Practice's proposals for changes in the Arkansas Rules of Civil Procedure, Rules of Appellate Procedure — Civil, Rules of the Supreme Court and Court of Appeals, and Administrative Order Number 2. We thank everyone who reviewed the proposals.
We accept the committee's recommendations except with respect to Ark. R. App. P. — Civil 5(b)(3), which remains under study by the court. We adopt the following amendments to be effective immediately and republish the Rules and Reporter's Notes as set out below.
We encourage all judges and lawyers to review this per curiam in order to familiarize themselves with the changes to the rules. We again express our gratitude to the members of our Civil Practice Committee for the Committee's diligence in performing the important task of keeping our civil rules current, efficient, and fair.
A. ARKANSAS RULES OF CIVIL PROCEDURE
1. Section (b) of Rule 3 is amended to read as follows:
(b) The term "clerk of the court" as used in these Rules means the circuit clerk and, with respect to probate matters, any county clerk who serves as ex officio clerk of the probate division of the circuit court pursuant to Ark. Code Ann. § 14-14-502(b)(2)(B). In counties where the county clerk serves as the ex officio clerk of any division of the circuit court, the filing requirement shall be satisfied when the complaint is filed with either the circuit clerk or the county clerk.
The Reporter's Notes accompanying Rule 3 are amended by adding the following:
Addition to Reporter's Notes, 2005 Amendment: Rule 3(b) has been amended. As the Rule states, in some counties the county clerk serves as the ex officio clerk of the probate division of the circuit court. Uncertainties have arisen in these circumstances about the effect of filing a pleading or paper with the wrong clerk. A sentence has been added to subsection (b) to make plain that, in these counties, a party complies with Rule 3(a) when the complaint is file marked by either the circuit clerk or the county clerk. This new provision accords with pre-Amendment 80 cases. Cf., Linder v. Howard, 296 Ark. 414, 415-18, 757 S.W.2d 549, 550-51 (1995) (the timely filing of a complaint in chancery court tolled the statute of limitations even through the case should have been brought in circuit court and was transferred there after the statute had run.). Similar clarifying language has been added to Rule of Civil Procedure 5(c)(1) (filing papers in general), Administrative Order Number 2 (clerk's docket and filing), and Rule of Appellate Procedure-Civil 3(b) (filing a notice of appeal).
2. Subsection (c)(1) of Rule 5 is amended to 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. In counties where the county clerk serves as the ex officio clerk of any division of the circuit court, the filing requirement for any pleading, paper, order, judgment, decree, or notice of appeal shall be satisfied when the document is filed with either the circuit clerk or the county clerk.
The Reporter's Notes accompanying Rule 5 are amended by adding the following:
Addition to Reporter's Notes, 2005 Amendment: Rule 5(c)(1) has been amended. In some counties, the county clerk serves as the ex officio clerk of the probate division of the circuit court. Ark. Code Ann. § 14-14-502(b)(2)(B). Uncertainties have arisen in these circumstances about the effect of filing a pleading or paper with the wrong clerk. A sentence has been added to subsection (c)(1) to make plain that, in these counties, a party complies with Rule 5 when the document is file marked by either the circuit clerk or the county clerk. Similar clarifying language has been added to Rule of Civil Procedure 3(b) (filing a complaint), Administrative Order Number 2 (clerk's docket and filing), and Rule of Appellate Procedure-Civil 3(b) (filing a notice of appeal).
3. Section (d) of Rule 30 is amended to read as follows:
(d) Schedule and Duration; Motion to Terminate or Limit Examination.
(1) Any objection during a deposition must be stated concisely and in a non-argumentative and non-suggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under paragraph (4).
(2) The court may by order limit the time permitted for the conduct of a deposition, but must allow additional time if needed for a fair examination of the deponent or if the deponent or another person impedes or delays the examination.
(3) If the court finds that any impediment, delay, or other conduct has frustrated the fair examination of the deponent, it may impose upon the persons responsible an appropriate sanction, including the reasonable costs and attorneys' fees incurred by any parties as a result thereof.
(4) At any time during a deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Rule 26(c). If the order made terminates the examination, it may be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition must be suspended for the time necessary to make a motion for an order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.
The Reporter's Notes accompanying Rule 30 are amended by adding the following:
Addition to Reporter's Notes, 2005 Amendments: Rule 30(d) has been amended and its subsections renumbered. For many years, Arkansas Rule 30 has been substantially similar to Federal Rule 30. The 2005 amendments to Rule 30(d) track changes made in 2000 to the Federal Rule and clarify the terms about behavior during depositions. The amendments confirm that the Rule's limitations extend beyond parties to all persons present at a deposition. They also clarify when a privilege may be asserted against a question. Former subsection (2) has been divided into new subsections (2) and (3), and former (3) has been renumbered as (4). See generally, Advisory Committee Note, 2000 Amendments to FRCP 30(d). The Federal Rule's presumptive limitation on the duration of any deposition to one seven-hour day has not been incorporated into the Arkansas Rule.
4. Section (a) of Rule 43 is amended to read as follows:
(a) Form. In all trials, the testimony of witnesses shall be taken in open court, unless otherwise provided by these rules or as otherwise provided by law. The court may, for good cause shown in compelling circumstances and upon appropriate safeguards, permit presentation of testimony in open court by contemporaneous transmission from a different location.
The Reporter's Notes accompanying Rule 43 are amended by adding the following:
Addition to Reporter's Notes, 2005 Amendments: Rule 43(a) has been amended in two ways. Continuing the substantial identity between the Arkansas Rule and FRCP 43, both of these changes mirror 1996 revisions of the Federal Rule. First, the requirement that testimony be taken "orally" has been eliminated. The amendment allows testimony through non-verbal means (i.e., writing, sign language, or computer) from a witness who is unable to speak. Second, a new provision has been added. That provision gives the circuit court discretion to allow testimony in open court from a different location by contemporaneous transmission. Two important requirements must inform that discretion: good cause shown in compelling circumstances and appropriate safeguards.
Because our legal tradition strongly prefers testimony in the fact-finder's presence, the inconvenience to a witness of attending trial will not establish good cause or compelling circumstances. The amended Rule contemplates some unexpected event that makes attendance by the witness very difficult. Examples of such events include an accident, an illness, or the need for an emergency hearing. When the witness's absence can be reasonably anticipated, a deposition should be the preferred method of securing the testimony. See generally, Advisory Committee's Note, 1996 Amendment to FRCP 43(a).
The amended Rule also requires the circuit court to adopt appropriate safeguards when it allows testimony by contemporaneous transmission. Those safeguards should ensure accurate identification of the witness, protect against influence by persons present with the witness, and secure accurate transmission of the testimony.
5. Subsection (c)(2) of Rule 50 is amended to read as follows:
(c) Same: Conditional Rulings on Grant of Motion.
* * *
(2) The party whose verdict has been set aside on motion for judgment notwithstanding the verdict may file a motion for a new trial pursuant to Rule 59 not later than 10 days after entry of the judgment notwithstanding the verdict.
The Reporter's Notes accompanying Rule 50 are amended by adding the following:
Addition to Reporter's Notes, 2005 Amendment: Rule 50(c)(2) has been clarified by substituting the word "file" for the word "serve." Under Rule 59, a motion for a new trial must be made in writing and filed with the clerk. Rule of Civil Procedure 59(b) (c). This amendment removes the potentially confusing reference to service of the motion and harmonizes this part of Rule 50 with Rule 59.
B. ADMINISTRATIVE ORDER
Section (a) of Administrative Order Number 2 — Dockets and Other Records is amended to read as follows:
(a) Docket. The clerk shall keep a book known as a "civil docket," designated by the prefix "CV"; a book known as a "probate docket," designated by the prefix "PR"; a book known as a "domestic relations" docket," designated by the prefix "DR"; a book known as a "criminal docket," designated by the prefix "CR"; and a book known as a "juvenile docket," designated by the prefix "JV". Each action shall be entered in the appropriate docket book. Cases shall be assigned the letter prefix corresponding to that docket and a number in the order of filing. Beginning with the first case filed each year, cases shall be numbered consecutively in each docket category with the four digits of the current year, followed by a hyphen and the number assigned to the case, beginning with the number "1". For example:
All papers filed with the clerk, all process issued and returns thereon, all appearances, orders, verdicts and judgments shall be noted chronologically in the dockets and filed in the folio assigned to the action and shall be marked with its file number. These entries shall be brief, but shall show the nature of each paper filed or writ issued and the substance of each order or judgment of the court and of the returns showing execution of process. The entry of an order or judgment shall show the date the entry is made. Where there has been a demand for trial by jury it shall be shown on the docket along with the date upon which demand was made. In counties where the county clerk serves as the ex officio clerk of any division of the circuit court, the filing requirement for any pleading, paper, order, judgment, decree, or notice of appeal shall be satisfied when the document is filed with either the circuit clerk or the county clerk.
C. ARKANSAS RULES OF APPELLATE PROCEDURE — CIVIL
1. Section (b) of Rule 3 is amended to read as follows:
(b) How Taken. An appeal shall be taken by filing a notice of appeal with the clerk of the circuit court that entered the judgment, decree, or order from which the appeal is taken. In counties where the county clerk serves as the ex officio clerk of any division of the circuit court, the filing requirement shall be satisfied when the notice of appeal is filed with either the circuit clerk or the county clerk. Failure of the appellant or cross-appellant to take any further steps to secure review of the judgment or decree appealed from shall not affect the validity of the appeal or cross-appeal, but shall be ground only for such action as the appellate court deems appropriate, which may include dismissal of the appeal or cross-appeal. If, however, the record on appeal has not been filed pursuant to Rule 5 of these rules, the circuit court in which the notice of appeal was filed may dismiss the appeal or cross-appeal upon petition of all parties to the appeal or cross-appeal accompanied by a joint stipulation that the appeal or cross-appeal is to be dismissed.
The Reporter's Notes accompanying Rule 3 are amended by adding the following:
Addition to Reporter's Notes, 2005 Amendment: Rule 3(b) has been amended. In some counties, the county clerk serves as the ex officio clerk of the probate division of the circuit court. Ark. Code Ann. § 14-14-502(b)(2)(B). Uncertainties have arisen in these circumstances about the effect of filing a notice of appeal with the wrong clerk. A sentence has been added to subsection (b) to make plain that, in these counties, a party complies with Rule 3 when the notice of appeal is file marked by either the circuit clerk or the county clerk. Similar clarifying language has been added to Rule of Civil Procedure 3(b) (filing a complaint), Rule of Civil Procedure 5(c)(1) (filing papers in general), and Administrative Order Number 2 (clerk's docket and filing).
2. Section (e) of Rule 6 has been amended to read as follows:
(e) Correction or Modification of the Record. If any difference arises as to whether the record truly discloses what occurred in the circuit court, the difference shall be submitted by motion to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the circuit court before the record is transmitted to the appellate court, or the appellate court on motion, or on its own initiative, may direct that the omission or misstatement shall be corrected, and if necessary, that a supplemental record be certified and transmitted. All other questions as to form and content of the record shall be presented to the appellate court. No correction or modification of the record shall be made without prior notice to all parties.
The Reporter's Notes accompanying Rule 6 are amended to add the following:
Addition to Reporter's Notes, 2005 Amendments: Rule 6(e) has been amended in three ways: it changes Arkansas law about which court — circuit or appellate — has jurisdiction to correct or modify the record in a case on appeal; it requires notice to all parties before any court alters the record; and it clarifies that the parties should proceed by motion when seeking to alter the record.
Amended Rule 6(e) preserves jurisdiction in the circuit court to correct or modify the record after a party files a notice of appeal and before the party files the record with the clerk of the Supreme Court and Court of Appeals. The 2005 amendment eliminates the circuit court's jurisdiction to alter the record after it has been filed. From that point forward, the appellate court has jurisdiction to correct or modify the record or remand to the circuit court for it to consider doing so.
This amendment overrules in part both the Supreme Court's recent decision in Gore v. Heartland Community Bank, No. 03-791, 2004 WL 743802 (8 April 2004), and Davie v. Smoot, 202 Ark. 294, 150 S.W.2d 50 (1941). Applying former Rule 6, Gore allowed a circuit court to modify the record while the case was pending in the Supreme Court. Davie is a pre-Rules case, which holds that trial courts have continuing jurisdiction to correct records even while a case is on appeal. As noted by the concurring opinion in Gore, the former version of Rule 6 confused parties and created an untenable situation: simultaneous jurisdiction in the appellate court and the circuit court to alter the record on appeal. The better practice is to have a bright jurisdictional line, which the amended Rule provides. Moreover, amended Rule 6 preserves the appellate courts' often-used authority to remand the case to the circuit court to settle the record.
The last sentence of the amended Rule is new. As both opinions in Gore pointed out, the former version of Rule 6(e) contained no requirement of notice to the parties before any court modified the record. The better practice is for all parties to have the opportunity to be heard on proposed changes. The amended Rule requires notice of all proposed changes to the record.
Finally, amended Rule 6(e) clarifies that parties should seek modifications and corrections of the record by motion. That requirement will help provide notice and achieve the Rule's purpose: to make the record on appeal accurately reflect what happened in the circuit court.
D. RULES OF THE ARKANSAS SUPREME COURT AND THE ARKANSAS COURT OF APPEALS
1. Section (c) of Rule 4-2 is amended to read as follows:
(c) Non-compliance. Briefs not in compliance with the format required by this Rule shall not be accepted for filing by the Clerk. When a party submits a brief on time that substantially complies with these Rules, the Clerk shall mark the brief "tendered", grant the party a seven-day compliance extension, and return the brief to the party for correction. If the party resubmits a compliant brief within seven (7) calendar days, then the Clerk shall accept that brief for filing on the date it is received.
2. Section (k)(1) of Rule 4-3 is amended to read as follows:
(k) Continuances and extensions of time.
(l) 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 granted except by the Clerk for compliance with these Rules as provided in Rule 4-2(c) or by the Court upon a written motion showing good cause.
3. Subsection (f)(1) of Rule 4-4 is amended to read as follows:
(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 granted except by the Clerk for compliance with these Rules as provided in Rule 4-2(c) or by the Court upon a written motion showing good cause.