Ark. R. App. P. Civ. 3
Ark. R. App. P. Civ. 3
COMMENT
Addition to Reporter's Notes, 2010 Amendment.
Subdivision (e) has been reformatted into subparts, creating a check list to help parties in preparing their notices of appeal and cross-appeal. With one exception, no substantive change from the former rule has been made. Subdivision (e) has been amended to require one new statement in every notice of appeal and notice of cross-appeal from a final order or judgment. Pursuant to new subpart (vi), the appealing party must state that the party is abandoning any pending but unresolved claim. This abandonment operates as a dismissal with prejudice of these stray claims. This amendment will cure a recurring finality problem. Too often-after the parties have paid for the record, filed it, and filed all their briefs on appeal-the appellate court will discover that what appears to be a final order or judgment is not final because a pleaded claim, counterclaim, or cross-claim remains unadjudicated. This kind of stray claim destroys finality and renders an otherwise final order or judgment unappealable. E.g., Ramsey v. Beverly Enters., Inc., 375 Ark. 424, 291 S.W.3d 185 (2009); Rigsby v. Rigsby, 340 Ark. 544, 11 S.W.3d 551 (2000); Brasfield v. Murray, 96 Ark. App. 207, 239 S.W.3d 551 (2006). These stray claims often appear to have been forgotten by the parties or abandoned even though no order resolved them. It wastes parties' and courts' scarce resources to have two appeals in these situations. A party taking an interlocutory appeal or cross-appeal authorized by the Arkansas Rules of Appellate Procedure, the Rules of the Supreme Court and Court of Appeals, or precedent, should not make this statement in the parties' notice. Nor is this statement required in a notice of appeal or cross-appeal from a judgment certified by the circuit court as final under Rule of Civil Procedure 54(b). In all these situations, which are in essence interlocutory appeals, some claims remain pending and viable in the circuit court during the appeal.
Addition to Reporter's Notes, 2012 Amendment:
Arkansas Rules of Appellate Procedure-Civil 2(b) and 3(a) contained an ambiguity (same language in both rules) that could have been misconstrued as creating, under limited circumstances, a 180-day period in which to file the notice of appeal of a judgment (or intermediate order). Both rules stated that "[a]n appeal from an order disposing of a postjudgment motion under Rule 4 brings up for review the judgment and any intermediate order involving the merits and necessarily affecting the judgment, as well as the order appealed from." The reference in Rules 2(b) and 3(a) to orders disposing of postjudgment motions under Rule 4 (without designation of a specific subsection under Rule 4 ) was intended to apply only to orders disposing of the postjudgment motions included in Rule 4(b)(1) (motions for judgment notwithstanding the verdict, motions to amend the court's findings of fact or to make additional findings, or any other motions to vacate, alter, or amend the judgment). However, the general reference to Rule 4 in Rules 2(b) and 3(a) could have been read as allowing appellate review of the original judgment (or intermediate order) "brought up for review" by an order disposing of any postjudgment motion allowed under Rule 4. Since motions for extension of time to file a belated appeal are also included under Rule 4 (Rule 4(b)(3) ), orders denying belated-appeal motions could have been considered to bring up for review the original judgment (or intermediate order). Because belated-appeal motions under Rule 4(b)(3) may be filed up to 180 days following the judgment, the effect would have been to create a 180-day period in which to appeal the original judgment (or intermediate order). The amendment clarifies the original intent of Rules 2(b) and 3(a) by specifically limiting the postjudgment motions that bring up for review original judgments or intermediate orders to the postjudgment motions included in Rule 4(b)(1).