Opinion
Delivered May 24, 2001
In the aftermath of the passage of Amendment 80, our Committee on Civil Practice has reviewed the various rules of court touching on civil practice to determine what amendments are required. With respect to the Rules of Civil Procedure and the Inferior Court Rules, the Committee has reported to the Court the changes it recommends. We have reviewed the report and thank the Committee for a job well done.
We accept the Committee's recommendations, with minor changes, and hereby amend and republish the rules as set out below:
Inferior Court Rule 1.
These changes shall be effective July 1, 2001, unless noted otherwise.
At the conclusion of the rules changes, there appears a line-in/line-out version of the rules for the convenience of the reader which illustrates the changes.
Implementation of Amendment 80: Amendments to Rules of Civil Procedure and Inferior Court Rules
A. Rules of Civil Procedure
1. Rule 1 is amended to read as follows:
These rules shall govern the procedure in the circuit courts in all suits or actions of a civil nature with the exceptions stated in Rule 81. They shall be construed and administered to secure the just, speedy and inexpensive determination of every action.
2. Rule 2 is amended to read as follows:
There shall be one form of action to be known as "civil action."
Section 6(B) of Amendment 80 authorizes the Supreme Court to promulgate rules governing the organization of circuit courts into subject matter divisions. Administrative Order No. 14, adopted by the Supreme Court pursuant to this authorization, requires that the circuit judges of each judicial circuit "establish the following subject-matter divisions in each county of the circuit: criminal, civil, juvenile, probate, and domestic relations." However, the order expressly provides that this designation of divisions "is for the purpose of judicial administration and caseload management and is not for the purpose of subject-matter jurisdiction." At all times, a circuit judge has "the authority to hear all matters within the jurisdiction of the circuit court and has the affirmative duty to do so regardless of the designation of divisions."
The merged system is to be contrasted with and distinguished from the prior practice in Arkansas during the period in which chancery courts had not been created in all counties. In counties without chancery courts, the circuit court "was a court of dual jurisdiction, the judge presiding in one division or 'on the law side' as a superior court of common law, and also sitting in chancery as judge of a court of equity. . . ." Morgan Utilities, Inc. v. Perry County, 183 Ark. 542, 547, 37 S.W.2d 74, 77 (1931). With the merger of law and equity, there are not separate law and equity "sides" of the circuit court.
Although law and equity have been merged, equitable principles may be applied where appropriate. This has been so in the federal courts. E.g., Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368, 382 n. 26 (1949) ("Notwithstanding the fusion of law and equity by the Rules of Civil Procedure, the substantive principles of Courts of Chancery remain unaffected"); In re United States Brass Corp., 110 F.3d 1261, 1267 (7th Cir. 1997) ("Ever since law and equity were merged in the federal courts . . . more than a half century ago, the courts have had a free hand in importing equitable defenses into suits at law"). Moreover, the merger does not alter substantive rights. Grupo Mexicano de Desarrollo, S.A., 527 U.S. 308, 322 (1999).
3. Rule 3 is amended to read as follows:
Rule 3. COMMENCEMENT OF ACTION — "CLERK" DEFINED
(a) A civil action is commenced by filing a complaint with the clerk of the court who shall note thereon the date and precise time of filing.
(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(a)(2)(B).
[Transitional Provision. For the period July 1, 2001 through December 31, 2001, probate matters shall continue to be filed with the same clerk where such matters were filed immediately prior to July 1, 2001. ]
4. The first line of the caption of the summons form accompanying Rule 4 is amended to read as follows:
IN THE CIRCUIT COURT OF ___ COUNTY, ARKANSAS
The explanatory paragraph accompanying the form is amended to read as follows:
Official Form of Summons
The Supreme Court of Arkansas has adopted the following form of summons for use in all cases in which personal service is to be had pursuant to Rule 4(c), (d) and (e) of the Arkansas Rules of Civil Procedure. The form may be modified as needed in special circumstances. Additional notices, if required, should be inserted in the appropriate space. This form is not for use in cases of constructive service pursuant to Rule 4(f). The adoption of this form is in compliance with Rule 4(b) and does not modify or amend any part of that rule.
5. Rule 12(h)(3) is amended to read as follows:
(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. 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.
6. Rule 18 is amended by revising subdivisions (a) and (b) to read as follows:
(a) Joinder of Claims. A party asserting a claim for relief as an original claim, counterclaim, cross-claim, or third-party claim may join, either as independent or alternate claims, as many claims, legal or equitable, as the party may have against an opposing party, provided that nothing herein shall affect the obligation of a party under Rule 13(a).
(b) Severance and Transfer. (1) Any claim against a party may be severed and proceeded with separately. (2) If the court determines that the action, or a particular claim, should in the interest of justice or judicial economy be heard in another division, the court may transfer it to that division.
7. Rule 22(b) is amended to read as follows:
(b) A plaintiff who disclaims any interest in the money or property that is the subject of the interpleader action shall, upon depositing the money or property in the registry of the court, be discharged from all liability. The court may make an award of reasonable litigation expenses, including attorneys' fees, to such a plaintiff.
8. Rule 27 is amended by revising subdivisions (a)(4) and (b) to read as follows:
(a) Before Action.
* * *
(4) Use of Deposition. If a deposition to perpetuate testimony is taken under these rules or if, although not so taken, it would be admissible in the courts of this state, it may be used in any action involving the same subject matter subsequently brought in a circuit court of this state in accordance with the provisions of Rule 32(a).
(b) Pending Appeal. If an appeal has been taken from a judgment of a circuit court or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the court. In such case the party who desires to perpetuate the testimony may make a motion in the circuit court for leave to take the depositions, upon the same notice and service thereof as if the same were pending in that court. The motion shall show (1) the names and addresses of persons to be examined and the substance of the testimony which he expects to elicit from each; (2) the reasons for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure of justice, it may make an order allowing the depositions to and may make orders of the character provided for by Rule 35, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed these rules for depositions taken in actions pending in the circuit court.
9. Rule 28(c) is amended to read as follows:
(c) For Use in Foreign Countries. A party desiring to take a deposition or have a document or other thing produced for examination in this state, for use in a judicial proceeding in a foreign country, may produce to a judge of the circuit court in the county where the witness or person in possession of the document or thing to be examined resides or may be found, letter rogatory, appropriately authenticated, authorizing the taking of such deposition or production of such document or thing on notice duly served; whereupon it shall be the duty of the court to issue a subpoena requiring the witness to attend at a specified time and place for examination. In case of failure of the witness to attend or refusal to be sworn or to testify or to produce the document or thing requested, the court may find the witness in contempt.
11. Rule 45(f) is amended to read as follows:
(f) Depositions for Use in Out-of-State Proceedings. Any party to a proceeding pending in a court of record outside this state may take the deposition of any person who may be found within this state. A party who has filed a notice of deposition upon oral examination in an out-of-state proceeding, which complies with Rule 30(b), may file a certified copy thereof with the circuit clerk of the county in which the deposition is to be taken; whereupon, the clerk shall issue a subpoena in accordance with the notice. All provisions of this rule shall apply to such subpoenas. Any objection shall be heard by a circuit judge of the county in which the deposition is to be taken.
12. Rule 51 is amended by revising the second paragraph to read as follows:
A mere general objection shall not be sufficient to obtain appellate review of the court's action relating to instructions to the jury except as to an instruction directing a verdict or the court's action in declining to do so.
13. Rule 52 is amended by revising subdivisions (a) and (b)(2) to read as follows:
(a) Effect. If requested by a party, 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 evi dence, 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) * * *
(2) When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the circuit court an objection to such findings or has made a motion to amend them or a motion for judgment.
14. Rule 60 is amended by revising subdivisions (h) and (i) to read as follows:
(h) Premature Judgment. Rendering judgment prior to the time fixed for filing an answer shall be deemed a clerical misprision. No misprision of the clerk shall be ground for appeal until relief has been sought in the circuit court and action taken there.
(i) Motion to Vacate or Modify May Be Heard First. The circuit court may first try and decide upon the grounds for vacating or modifying a judgment before trying or deciding the validity of the defense or cause of action.
The Reporter's Notes accompanying Rule 60 are amended by adding
15. Rule 78(d) is amended to read as follows:
(d) Mandamus and Prohibition. Upon the filing of petitions for writs of mandamus or prohibition in election matters, it shall be the mandatory duty of the circuit court having jurisdiction to fix and announce a day of court to be held no sooner than two (2) and no longer than seven (7) days thereafter to hear and determine the cause.
16. Rule 81(a) is amended to reads as follows:
(a) Applicability in General. These rules shall apply to all civil proceedings cognizable in the circuit courts of this state except in those instances where a statute which creates a right, remedy or proceeding specifically provides a different procedure in which event the procedure so specified shall apply.
17. Rule 82 is amended to reads as follows:
These rules shall not be construed to extend or limit the jurisdiction of circuit courts in this state or the venue of actions therein.
B. Inferior Court Rules
Rule 1 is amended to read as follows:
These rules shall govern the procedure in all civil actions in the inferior courts of this state. They shall apply in the small claims division of district courts to the extent that they do not conflict with Small Claims Procedure Act, Ark. Code Ann. §§ 16-17-601- 16-17-614.