Opinion
Delivered December 9, 1999
The Arkansas Supreme Court Committee on Civil Practice has submitted its annual proposals and recommendations for changes in the Arkansas Rules of Civil Procedure and the Arkansas Rules of Appellate Procedure — Civil.
We publish the Committee's suggested changes to the Rules and the Reporter's Notes for comment from the bench and bar. For ease of reference, the changes are also presented in "line-in, line-out" fashion. We note that the proposed amendment to Ark.R.Civ.P. 12 (h)(3) will, if adopted, result in Ark. Code Ann. § 21-6-403(b), as amended by Act 1081 of 1999, being deemed superseded.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, 2000, 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. Subdivision (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.
The Reporter's Notes accompanying Rule 5 are amended by adding the following:
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. The third sentence of subdivision (a) of Rule 6 is amended by replacing "eleven (11)" with "fourteen (14)."
The Reporter's Notes accompanying Rule 6 are amended by adding the following:
Addition to Reporter's Notes, 2000 Amendment: The time period in the third sentence of subdivision (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. Subdivision (a) of Rule 8 is amended to read as follows:
(a) Claims for Relief. (1) A pleading which sets forth a claim for relief, whether a complaint, counterclaim, cross claim or third party claim, shall contain (A) a statement in ordinary and concise language of facts showing that the court has jurisdiction of the claim and is the proper venue and that the pleader is entitled to relief, and (B) a demand for the relief to which the pleader considers himself entitled. Relief in the alternative may be demanded.
(2) In claims for unliquidated damages, a demand containing no specified amount of money shall limit recovery to an amount less than required for federal court jurisdiction in diversity of citizenship cases, unless language of the demand indicates that the recovery sought is in excess of such amount. An insufficient demand for purposes of this paragraph is correctable only by amendment pursuant to Rule 15(a) filed within 60 days of the original pleading.
The Reporter's Notes accompanying Rule 8 are amended by adding the following:
Addition to Reporter's Notes, 2000 Amendment: Subdivision (a) has been rearranged slightly and divided into two paragraphs. New language in the second paragraph is intended to overturn Interstate Oil Supply Co. v. Troutman Oil Co., 334 Ark. 1, 972 S.W.2d 941 (1998). That case held that the plaintiff's failure to demand a specific sum of money where damages were unliquidated, or to plead that the recovery sought was in excess of the amount required for federal diversity jurisdiction, did not limit the plaintiff's recovery because the issue was tried by implied consent under Rule 15(b), Ark.R.Civ.P.
Under the Troutman decision, a plaintiff could effectively defeat a defendant's right to removal yet suffer no penalty, a result at odds with the intent of Rule 8(a). Accordingly, the rule has been amended to provide that an inadequate demand for unliquidated damages may be corrected only by a formal amendment filed within 60 days of the original pleading. Because such an amendment is the only method for curing the defect, Rule 15(b) is inapplicable.
4. Subdivision (h)(3) of Rule 12 is amended by adding the following new sentence at the end: "No filing or transfer fee may be imposed by the clerk of the court to which a case is transferred." Subdivision (h)(3) is further amended by replacing the introductory phrase "Whenever it appears" in the second sentence with the phrase "Upon a determination."
The Reporter's Notes accompanying Rule 12 are amended by adding the following:
Addition to Reporter's Notes, 2000 Amendment: A new sentence has been added to subdivision (h)(3) making plain that neither a filing fee nor a transfer fee may be imposed by the clerk of the court to which a case is transferred. A statute setting a $50 fee when a case is transferred from one county to another is deemed superseded. See Ark. Code Ann. § 21-6-403(b), as amended by Act 1081 of 1999. Imposition of a fee would seriously burden plaintiffs and impede operation of the transfer mechanism provided in subdivision (h)(3). 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.
5. Subdivision (a) of Rule 45 is amended by adding the following new sentence at the end: "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." Subdivisions (d) and (e) of the rule are amended by adding the following new sentence after the first sentence in each subdivision: "The subpoena may also be issued by an attorney pursuant to subdivision (a) of this rule."
The Reporter's Notes accompanying Rule 45 are amended by adding the following:
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 to produce and permit inspection and copying of the following documents or objects at the place, date, and time specified below (list documents or objects):
_________________________________________________________________ Place | Date and Time | ____________________________________|____________________________
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.
6. Subdivisions (a) and (b) of Rule 60 are amended to 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.
Subdivision (c)(1) of the rule is amended by changing the cross-reference from "Rule 59(c)" to "Rule 59(b)," and subdivision (c)(4) is amended to read as follows:
(4) For fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.
Subdivision (c) is further amended by adding new paragraph (8) as follows:
(8) To otherwise prevent the miscarriage of justice, but not more than one year after entry of the judgment, decree, or order.
The Reporter's Notes accompanying Rule 60 are amended by adding the following:
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), by revising paragraph (4), and by adding new paragraph (8).
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).
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. New paragraph (8) of subdivision (c) allows the court to act after the expiration of the 90-day period, but not more than one year after entry of the judgment, decree or order, "to otherwise prevent the miscarriage of justice."
Amended paragraph (4) of subdivision (c) allows a judgment, decree or order to be modified or set aside "[f]or fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party." This language, taken 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 — Civil
1. Subdivision (a) of Rule 2, Ark. R. App. P. — Civ., is amended by replacing the period at the end of paragraph 9 with a semicolon and by adding the following new paragraphs:
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).
The Reporter's Notes accompanying Rule 2 is amended by adding the following:
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.
2. Subdivision (a) of Rule 4 is amended by replacing the reference to "subdivision (b)" in the first sentence with "subdivisions (b) and (c)", by redesignating subdivision (c) as subdivision (d), and by adding new subdivision (c) as follows:
(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.
The Reporter's Notes accompanying Rule 4 are amended by adding the following:
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).
3. Rule 5 is amended by adding the following as new subdivision (c):
(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.
The Reporter's Notes accompanying Rule 5 are amended by adding the following:
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 Criminal 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.
Arkansas Rules of Civil Procedure Rule 5(c)(1), Ark.R.Civ.P.
(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, depositions, interrogatories, requests for production or inspection, proposed findings of fact, proposed conclusions of law, trial briefs, proposed jury instructions, and responses thereto may but need not be filed with the clerk 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.
Rule 6(a), Ark.R.Civ.P.
(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 eleven (11) 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).
Rule 8(a), Ark.R.Civ.P.
(a) Claims for Relief. (1) A pleading which sets forth a claim for relief, whether a complaint, counterclaim, cross claim or third party claim, shall contain (1) (A) a statement in ordinary and concise language of facts showing that the court has jurisdiction of the claim and is the proper venue and that the pleader is entitled to relief, and (2) (B) a demand for the relief to which the pleader considers himself entitled. Relief in the alternative may be demanded.
(2) In claims for unliquidated damage s, a demand containing no specified amount of money shall limit recovery to an amount less than required for federal court jurisdiction in diversity of citizenship cases, unless language of the demand indicates that the recovery sought is in excess of such amount. Relief in the alternative may be demanded. An insufficient demand for purposes of this paragraph is correctable only by amendment pursuant to Rule 15(a) filed within 60 days of the original pleading.
Addition to Reporter's Notes, 2000 Amendment: Subdivision (a) has been rearranged slightly and divided into two paragraphs. New language in the second paragraph is intended to overturn Interstate Oil Supply Co. v. Troutman Oil Co., 334 Ark. 1, 972 S.W.2d 941 (1998). That case held that the plaintiff's failure to demand a specific sum of money where damages were unliquidated, or to plead that the recovery sought was in excess of the amount required for federal diversity jurisdiction, did not limit the plaintiff's recovery because the issue was tried by implied consent under Rule 15(b), Ark.R.Civ.P.
Under the Troutman decision, a plaintiff could effectively defeat a defendant's right to removal yet suffer no penalty, a result at odds with the intent of Rule 8(a). Accordingly, the rule has been amended to provide that an inadequate demand for unliquidated damages may be corrected only by a formal amendment filed within 60 days of the original pleading. Because such an amendment is the only method for curing the defect, Rule 15(b) is inapplicable.
Rule 12(h)(3), Ark.R.Civ.P.
(h) Waiver or Preservation of Certain Defenses.
* * *
(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. Whenever it appears 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. No filing or transfer fee may be imposed by the clerk of the court to which a case is transferred.
Addition to Reporter's Notes, 2000 Amendment: A new sentence has been added to subdivision (h)(3) making plain that neither a filing fee nor a transfer fee may be imposed by the clerk of the court to which a case is transferred. A statute setting a $50 fee when a case is transferred from one county to another is deemed superseded. See Ark. Code Ann. § 21-6-403(b), as amended by Act 1081 of 1999. Imposition of a fee would seriously burden plaintiffs and impede operation of the transfer mechanism provided in subdivision (h)(3). 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.
Rule 45, Ark.R.Civ.P.
Rule 45. Subpoena.
(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.
* * *
(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.
* * *
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.
Rule 60, Ark.R.Civ.P.
(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. Clerical Mistakes. Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own motion or on the motion of any party and after such notice, if any, as the court orders. 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.
(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. Ninety-Day Limitation . To correct any error or mistake or to prevent the miscarriage of justice, a decree or order of a circuit, chancery or probate court may be modified or set aside on motion of the court or any party, with or without notice to any party, within ninety days of its having been filed with the clerk.
(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) (c), 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 fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party. practiced by the successful party in obtaining the judgment.
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(8) To otherwise prevent the miscarriage of justice , but not more than one year after entry of the judgment, decree, or order.
(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), by revising paragraph (4), and by adding new paragraph (8).
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).
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. New paragraph (8) of subdivision (c) allows the court to act after the expiration of the 90-day period, but not more than one year after entry of the judgment, decree or order, "to otherwise prevent the miscarriage of justice."
Amended paragraph (4) of subdivision (c) allows a judgment, decree or order to be modified or set aside "[f]or fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party." This language, taken 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 — Civil Rule 2(a), Ark. R. App. P. — Civ.
(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.
Rule 4, Ark. R. App. P. — Civ.
(a) Time for Filing Notice of Appeal. Except as otherwise provided in subdivision s (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.
(c) (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).
Rule 5, Ark. R. App. P. — Civ.
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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 Criminal 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.