Arkansas Business Litigation Lawyer & Attorney : Allen Law Firm : Serving Little Rock, Fort Smith, North Little Rock

Today's per curiam in Dodson v. Norris highlights a textual subtlety of Rule 5-2: the plain text of the rule does not bar citation of unpublished decisions from other jurisdictions.

Rule 5-2 of the Supreme Court and Court of Appeals of Arkansas states, in pertinent part (emphasis supplied):

Opinions of the court of appeals not designated for publication shall not be published in the Arkansas Reports and shall not be cited, quoted or referred to by any court or in any argument, brief, or other materials presented to any court (except in continuing or related litigation upon an issue such as res judicata, collateral estoppel, or law of the case).

(A note on the words "court of appeals" after the jump.)

The rule creates an interesting situation: advocates are free to tell the Arkansas Supreme Court what, for example, the Idaho Court of Appeals held via unpublished opinion on a certain issue, and even urge adoption of that court's reasoning. But advocates are not allowed to tell the Arkansas Supreme Court  what its own Court of Appeals held on the same issue.

Of course, the opinions of the Idaho Court of Appeals and the Arkansas Court of Appeals are equally binding on the Arkansas Supreme Court, that is, not at all.

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The Arkansas Supreme Court recently decided not to abolish its no-citation rule. The rule is contained in Arkansas Supreme Court Rule 5-2 and bars litigants from citing any unpublished decision of the Arkansas Court of Appeals in a brief filed in the Arkansas appellate courts.

Today, in Dodson v. Norris, No. 07-1179, the Arkansas Supreme Court sent the message that it was quite serious about its decision to keep the no-citation rule. The petitioner, who is briefing a criminal law question certified to the Court by the Eastern District of Arkansas, requested permission to cite some unpublished Court of Appeals opinions because "only four published opinions exist on the issues involved in this appeal."

The Court replied, "no," by way of citation to Weatherford v. State, 352 Ark. 324, 101 S.W.3d 227 (2003). Weatherford was an interesting case that presented a federal due-process challenge to Rule 5-2, as well as arguments under the Arkansas Constitution--all of which were denied. In denying petitioner's motion, the Court wrote:

We dealt extensively with the use of unpublished opinions in Weatherford v. State . . . we said, “While Appellant may prefer those cases that are not published, there is nothing to indicate that Appellant is impaired in seeking immediate appellate relief by not being able to rely on those cases.” Such is the case here.

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The appellants in Castleberry v. Fohn, No. CA07-1040, a Ouachita County medical malpractice case, fell victim to the final order rule when the Arkansas Court of Appeals dismissed their case. The plaintiff, Donald Castleberry, who was suing on behalf of the estate of Bobby L. Castleberry, filed a medical malpractice action against the Ouachita County Medical Center, Dr. Charles H. Fohn, Dr. Charles H. Fohn, M.D., P.A., and six John Doe defendants. Ouachita Circuit Judge David Guthrie dismissed the suit as to Dr. Fohn and his professional association on the basis of the statute of limitations. The order dismissing the Fohn defendants did not cover the Doe defendants or Ouachita County Medical Center. In a per curiam opinion, the en banc Court of Appeals quickly held that the order was not appealable.

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The Arkansas appellate courts are starting a electronic filing pilot program. According to the standards document, briefs are to be submitted in searchable PDF formate (except for the addendum) and cannot have "live" links to other parts of the pdf or the Internet in them. More information is at the Arkansas Judiciary website.

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The Arkansas Supreme Court granted a writ of mandamus and writ of prohibition in CenterPoint Energy, Inc. v. Miller County Circuit Court, No. 07-924 (2/14/08).

 

In a class action against CenterPoint, the named plaintiffs were an Arkansas plaintiff (Johnson) and a Texas plaintiff (Engledowl). Last summer, the Arkansas supreme court dismissed Johnson because the Arkansas Public Service Commission had exclusive jurisdiction (previously posted 6/11/07). CenterPoint then moved the trial to dismiss Johnson for lack of jurisdiction.

 

CenterPoint also moved to dismiss Engledowl for lack of venue because now there was no Arkansas plaintiff in the case. Engledowl argued CenterPoint waived venue because it did not raise it in the first motion to dismiss. CenterPoint claimed its venue challenge did not arise until Johnson was dismissed. The trial court denied the motions and stayed the proceedings pending a decision by the APSC.

 

The supreme court reversed, stating that the trial court never had jurisdiction over Johnson's claims, so it cannot maintain jurisdiction while awaiting a ruling by the APSC. Citing federal cases, the court agreed with CenterPoint that its venue challenge did not arise until Johnson was dismissed. CenterPoint did not waive its venue challenge by not raising it in the original motion to dismiss.

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The Arkansas Supreme Court clarified its stance on appealable orders when multiple claims against multiple parties are involved in Advanced Environmental Recycling Technologies v. Advanced Control Solutions, Inc., No. 06-1145 (2/7/08).

 

ACS filed suit against AERT and one of its former employees for trade secret misappropriation, breach of a noncompete agreement, and tortious interference with business. ACS nonsuited its claim against the former employee and then obtained a final judgment against AERT.

 

In a thorough opinion, the supreme court held the order was a final appealable order. The court explained that, when a plaintiff files a nonsuit against one defendant, one appeal will still decide all issues between the plaintiff and the remaining defendants. A nonsuit of certain claims against one defendant is not an appealable order because one appeal cannot dispose of the claims between the two parties.   

 

 

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The Arkansas Court of Appeals dismissed the appeal for failure to timely file the record in Murphy v. Michelle Smith Designs, No. 07-251 (12/5/07).

 

Murphy sold the assets of his embroidery business to Smith. He agreed to work for her as a manager and signed a noncompete agreement that he would not compete against her for 2 years after his employment ended. However, he opened a competing business immediately after his employment ended.

 

Smith obtained a preliminary injunction to prohibit Murphy from operating a competing business. After the trial was delayed, the trial court refused to dissolve the preliminary injunction on January 23, 2007. Murphy appealed that order and filed the record with the clerk on March 9, 2007. When a party appeals a refusal to modify a preliminary injunction in Arkansas, the record must be filed with the clerk within 30 days of the entry of the order. See Ark. R. App. P.--Civ. 5(a). In this case, Murphy had to file the record by February 22, 2007. The court dismissed the appeal for lack of jurisdiction.

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The Arkansas Court of Appeals dismissed a case for failure to reconstruct a record in Turner v. Brandt, No. 07-88 (11/28/07).

 

Turner was engaged in a property boundary dispute with the Brandts, but she failed to appear at the trial. The trial court entered judgment for the Brandts and stated that Turner had twice violated earlier orders. The trial court ruled that, if Turner fails to comply with the judgment, she will be jailed at least 180 days and pay whatever fine the court seems fit. Turner raised 2 points on appeal:
(1) the trial court failed to create a record of the trial; and (2) the trial court improperly preset a minimum punishment.

 

The court of appeals dismissed both arguments. When a trial court fails to make a record, the party is required to reconstruct the record at the trial court before filing an appeal. See Ark. R. App. P.
6(d). Turner failed to follow any of these procedures. As to the preset punishment, that issue is not ripe for appeal if and until the trial court actually imposes the punishment.  

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The Arkansas Court of Appeals dismissed an appeal for lack of a final, appealable order in Follett v. Fitzsimmons, No. 06-1409 (11/28/07).

 

The Fitzsimmons' filed suit against Follett claiming they owned certain property by adverse possession. Follett had purchased the property from First Methodist Church, and she brought a third-party indemnity action against the church. The trial court dismissed the Fitzsimmons' claim but did not address the third-party claim. A judgment is not final and appealable until it dispenses of all claims and all parties. A trial court can make a judgment final by finding that injustice will occur without an immediate appeal. See Ark. R. Civ. P. 54(b).

 

The trial court granted Rule 54(b) certification, stating "there is no just reason for delay of the entry of a final judgment." The court of appeals held the trial court failed to comply with Rule 54(b), and the appeal was dismissed.

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The Arkansas Supreme Court will conduct oral argument at the John Paul Hammerschmidt Conference Center-North Arkansas College in Harrison, Arkansas on Thursday, November 1, 2007 beginning at 9:00 a.m.

The announcement is here. The Court is holding argument in Harrison by virtue of Amendment 80:

This will only be the sixth occasion in modern times that the Supreme Court has held court outside of Little Rock. Since 2002, the Supreme Court has held oral argument in Fayetteville, Fort Smith, Jonesboro, Monticello, and Hope. Amendment 80 to the Arkansas Constitution, adopted by vote of the people in 2000, provides that the Supreme Court may meet at such times and places as may be designated by the Court.

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A final appellate practice lesson on Francis v. Protective Life Insurance Company is that, contrary to former practice, "[p]leadings and documentary evidence shall not be abstracted.” Ark. R. Sup. Ct. 4-2(a)(5) (2007).

Protective Life argued in this case that Francis's brief should be sent for rebriefing because she didn't include an abstract. The Court held in a footnote holding that in cases where there are no hearings and no testimony, an abstract is not required by the rules:

No abstract was provided in this case because no hearings were held and no testimony was taken. Protective Life claims that Elizabeth was not excused from abstracting the affidavits and responses to requests for admissions, as these documents are analogous to testimony. However, Protective Life cites us to a case decided pursuant to an old version of our rule on abstracting. Our current rule provides that “[p]leadings and documentary evidence shall not be abstracted.” Ark. R. Sup. Ct. 4-2(a)(5) (2007). The discovery documents at issue here were submitted as exhibits attached to pleadings. Such evidence is appropriately included in the addendum, pursuant to Ark. R. Sup. Ct. 4-2(a)(8) (2007).

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In Francis v. Protective Life Insurance Company, the appellant made an argument that makes some common sense (especially to non-lawyers). Again, the timeline:

November 3, 2005: An amended and substituted order fax-filed by the Court. 

Moreover, the clerk failed to send this order to the appellant.

November 10, 2005: Hard copies of an order marked "Replaces fax filed 11-3-05", and correcting a minor error in the November 3 order, filed by the Court.

December 9, 2005: Appellant files notice of appeal.

The rule (for our non-lawyer readers) is that you have to file a "notice of appeal" in the trial court within thirty (30) days of the final order entered in the case. The final order is essentially one that leaves no undecided issues behind for the trial court to consider, and conversely, makes all of the issues ready for the appellate court's consideration. If you miss the thirty-day deadline, the appellate court won't hear your case--because it lacks "appellate jurisdiction." In this case, December 9 was timely if November 3 was the final order date, but too late if November 10 is the final order date.

Appellant's counsel claimed prejudice because the Clerk failed to copy counsel on the November 3 order. His argument was common-sense, especially for non-lawyers: how could I appeal from an order that I didn't know existed?

However, attorneys are held to a stringent standard (and so are non-lawyers, if they represent themselves):

According to her counsel, Elizabeth’s notice of appeal was filed late through no fault of his own, but because the circuit court failed to keep him informed about the filings in the case. We disagree. We have held that a lawyer and litigant must exercise reasonable diligence in keeping up with the happenings of a case. By the exercise of reasonable diligence so as to keep up with the filings in the case, Elizabeth and her counsel would have known about the order and judgment entered on November 3 and the notation on the November 10 order and judgment. Thus, we must reject Elizabeth’s claim that the notice of appeal was filed late through no fault of her own.

Thus the second lesson of this case is to call the clerk's office every day when you are waiting for a final order to be filed.

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This is the first of three posts on Francis v. Protective Life Insurance Company, No. 07-206. In this case the Arkansas Supreme Court, per Justice Imber, reversed the court of appeals and dismissed for lack of appellate jurisdiction, holding that the appellant's notice of appeal was filed too late.

The widow plaintiff sued Protective Life after it denied her claim under a credit life insurance policy sold in connection with a retail installment contract for an automobile. She also sued Chrysler, who bought the retail installment contract from the original dealership. Chrysler counter-claimed for the balance owed under the contract. Johnson County Circuit Judge John S. Patterson granted summary judgment in favor of the insurance company and also granted Chrysler summary judgment for its claim against the plaintiff. 

A series of orders granting Chrysler's summary judgment motion were entered in the case:

November 1, 2005: Circuit court enters order granting Chrysler's summary-judgment motion. The Order contains a serious error: it grants a motion to dismiss, not a motion for summary judgment--whoever prepared the order apparently cut-and-pasted from an earlier order entered in the case.

November 3, 2005: An amended and substituted order fax-filed by the Court. The order grants the proper relief but still contains a mistake: the interest rate of the judgment was set at ten percent (10%).

November 10, 2005: Hard copies of an order marked "Replaces fax filed 11-3-05" filed by the Court. This order modified the rate of interest on the judgment to six percent (6%) per annum.

December 9, 2005: Appellant files notice of appeal.

The Arkansas Supreme Court held that the November 10 order was "clearly nunc pro tunc," in that it merely corrected the interest rate on the previous order. Thus: the thirty-day period to file the notice of appeal ran from November 3, 2005, not November 10, 2005, and the appellant filed too late. Case dismissed.

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Selmon v. Metropolitan Life Insurance Company, No. 06-1340, is an appeal from Circuit Judge Jay Moody's decision to deny the appellant an jury trial in his appeal from an adverse ERISA decision.

The trial court held a hearing on the appellant's jury-trial request but the appellant neither abstracted the hearing nor included a transcript of the hearing in the appellate record. The appellant maintained that the case was decided "primarily on the briefs of the parties and the administrative record," and that "[no] hearings on any substantive issue was [sic] held on any substantive issue." ([sic] in original).

Not good enough: the Court ordered appellant to add transcript of the hearing to the record within 60 days, and submit a new brief with proper abstracting.

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The case is Gamble v. Ray and the Court of  Appeals, per Judge Hart, gave pro se litigant Robert G. Gamble III fifteen days to re-file his brief. "While we are mindful that Mr. Gamble is attempting to represent himself in this matter, it is well-settled law that a pro se defendant must abide by the same rules and standards as a licensed attorney."

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In our third and final post on Rymor Builders, Inc. v. Tanglewood Plumbing Company, Inc.
 we explain why the trial court's reversible error did not lead to reversal: Rymor "waived this error because it failed to argue the point until its reply brief." Judge Marshall explains:

Rymor’s opening brief does not seek reversal based on the circuit court’s premature assessment of the witnesses’ credibility. Rymor states one point on appeal: “The ruling of the court is clearly against the preponderance of the evidence.” Rymor’s seventeen-page argument covers the testimony and documents in detail, contending that the weight of the evidence supports the conclusion that Tanglewood broke the parties’ contracts. In a couple of places, Rymor notes that the circuit court rejected its claim because the court did not find Rymor’s witnesses credible. At no point in its opening brief, however, does Rymor argue that the circuit court’s assessment of the witnesses’ credibility at the close of Rymor’s case was a reversible error.

Quoting Judge Easterbrook, Judge Marshall explained the Court's holding:

An argument made for the first time on reply comes too late. Coleman v. Regions Bank, 364 Ark. 59, 64, 216 S.W.3d 569, 573 (2005). “A litigant wanting to challenge the core of the [circuit] court’s holding must do so in its opening brief and not hold its fire until after the appellee has filed its only brief.” Horn v. Transcon Lines, Inc., 7 F.3d 1305, 1308 (7th Cir. 1993) [Easterbrook, J.].

Thus, an appellant with a winning issue on appeal lost the case.

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In a case interpreting Arkansas's Freedom of Information Act, the Arkansas Supreme Court affirmed Pulaski County Circuit Judge Mary McGowan's in camera FOIA review of emails sent between former Pulaski County Comptroller Ron Quillin and intervenor Jane Doe in Pulaski County v. Arkansas Democrat-Gazette, Inc. Jane Doe was an employee of Government e-Management Solutions (GEMS), a company that had a services contract with the County.  Doe and Quillin became "romantically involved" during the period of Quillin's embezzlement and the Arkansas Democrat-Gazette requested, under the State's FOIA law, copies of emails between Quillin and Doe. The Court held in July that a case-by-case in camera determination was necessary to determine whether each individual email was subject to FOIA. (The Court declined to rule that all of the emails were subject to FOIA because they were created on a County computer.)

The second case presented two issues: standing of Jane Doe to challenge the circuit judge's FOIA ruling, and her constitutional challenge that disclosure of the emails violated her right to privacy.

As to standing: according to the Court, the Democrat-Gazette advanced an interesting argument that Doe "has no standing under the Arkansas FOIA because she is a citizen of Missouri." Unfortunately, the opinion does not elaborate on the Democrat-Gazette's argument, and the Court's analysis is conclusory:

Only a claimant who has a personal stake in the outcome of a controversy has standing. Here, Doe is not attempting to gain access to public records; she is merely trying to block the disclosure of e-mails that she sent and received. Therefore, she has a personal stake in the outcome of this case. Thus, even though she is not a citizen of Arkansas, we hold that she has standing to assert a privacy interest.

(citations omitted).

The Court went on to hold that Doe waived her right  to raise a privacy challenge to release of the emails because "the romantic relationship between Quillin and Doe was indistinguishably intertwined with the business relationship between the County and GEMS."

The Court also held that Doe waived her right to raise the issue:

[W]e note that the circuit court found that one particular email exchange between Quillin and Doe sent on March 12, 2006, beginning at 9:44 a.m., is evidence that Doe lost any expectation of privacy. The sexually explicit exchange concludes by Doe’s response: “Hey now. This is work email. goofball!” Quillin then responds at 9:58 a.m.: “Delete, delete, delete . . . .” This e-mail exchange proves that Doe knew the risk that the e-mails could become public, yet she continued to e-mail Quillin on the county’s computer, and therefore, lost any expectation of privacy.

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The Southeast Texas Record notes an appeal (either an interlocutory appeal or a request for extraordinary writ relief) in Chivers v. State Farm, one of the many nationwide class actions simmering in the Texarkana, Arkansas-based state courts.

Chivers is a case against several major insurers over the way the insurers compensate  contractors:

The lawsuit involves allegations that after a loss or damage to an insured's property, insurance companies did not disclose or pay the general contractors' overhead and profit. Although the insurance companies paid the claims to the insurers, the plaintiffs state they are entitled to the additional money. The complaint states that general contractors' overhead and profit is 20 percent of an estimated construction job cost and is a paid-for-benefit to the customer.

The issue in the appeal is Circuit Judge Kirk Johnson's order that one of the defendants, Foremost Insurance, produce discovery at a cost of $45 million.

Judge Johnson's disagreed with Foremost's cost estimate in his order and stated that non-lawyer clerks could be employed to search the discovery for privileged material:

After Judge Johnson analyzed the costs of production of Foremost's claim files, he believes 90 percent of the costs are for attorneys' fees for removing attorney-client work product, which "can be identified by company clerks for attorney review at a greatly reduced rate of pay."

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The Arkansas Supreme Court issued a reminder yesterday to appellate advocates--follow Judge Crabtree's advice and "[i]f you argue it, abstract it." Terry Crabtree, Abstracting the Record, 21 U. Ark. Little Rock 1, 10 (1998).

LandsnPulaski, LLC v. Arkansas State Dept. of Correction, No. 06-1334, is an appeal from a grant of judgment on the pleadings. Rylwell, Inc. and Pulaski Lands, LLC v. Arkansas Development and Finance Authority, No. 07-334, is an appeal from a grant of summary judgment. City of Dardenelle, Arkansas v. City of Russellville, et al., No. 07-195, is an appeal from a grant of a motion to dismiss.

The Arkansas Supreme Court ordered rebriefing in each case for failure to abstract the relevant hearings. LandsnPulaski included a "summary" of the arguments in the abstract instead of the first-person rendering of testimony and argument called for by the rule, while Rylwell and Dardenelle placed transcripts of the relevant hearings in their respective addendums.

We have noted before the "Hobson's Choice" presented by Rule 4-2(a)(5): "If the appellant's attorney omits something from the abstract, the appellate court will not reach the issue," the result being an inefficient "tendency . . . for the attorney to abstract virtually everything in the record, even material of marginal relevance to the issues on appeal." John J. Watkins & Price Marshall, A Modest Proposal: Simplify Arkansas Appellate Procedure by Abolishing the Abstracting Requirement, 53 Ark. L. Rev. 37, 45-46 (2000). 

These cases don't present that dilemma, however. The portion of the transcript containing the hearing where the court granted dispositive relief is obviously a "material part[] of the testimony of the witnesses and colloquies between the court and counsel and other parties as [is]  necessary to an understanding of all questions presented to the Court for decision," Ark. Sup. Ct. R. 4-2(a)(5), and therefore must be abstracted.

The Court has made clear several times that including a transcript of a hearing in the addendum does not comply with the rule. See  Hanners v. Giant Oil Co. of Arkansas, 369 Ark. 226 (2007) (transcript of summary judgment hearing should have been abstracted rather than included in the addendum); Calaway v. Dickson, 360 Ark. 463, 201 S.W.3d 931 (2005) (same with respect to transcript of Rule 11 hearing). Preparing a summary of the argument apparently does not suffice any more than including a transcript of the arguments in the Addendum would.

In other words: "If you argue it, abstract it." Substitute measures, however reasonable, won't do.

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The Eighth Circuit reversed summary judgment on a unique insurance coverage question in Farm Bureau Mut. Ins. Co. v. Wilcox, No. 06-3982 (8/28/07).

 

Wilcox owned a rental property insured by Farm Bureau for fire and other perils. The tenants moved out in June 2004. In November 2004, Wilcox discovered a running faucet which caused extensive damage, and he submitted a claim. Farm Bureau filed this action seeking a declaration that coverage did not apply.

 

In Minnesota, fire insurance policies must provide a statutory minimum coverage. The insurer is not liable if the premises were vacant for 60 days or more. See Minn. Stat. § 65A.01, subd. 3. Insurers are able to provide more coverage if they want. Id. The Farm Bureau policy at issue had two provisions affecting vacancy. One provided that coverage was excluded for vandalism or malicious mischief if the premises were vacant for 30 days or more ("Vandalism Provision"). The other provided that, unless limited elsewhere in the policy, no coverage would apply to premises that were vacant for 180 days or more ("Vacancy Provision").

 

Wilcox only raised the Vandalism Provision to the district court; he did not find the Vacancy Provision. The district court held that the 60-day vacancy provision of the Minnesota statute applied and granted summary judgment to Farm Bureau. In an uncharacteristic move, Wilcox prevailed by raising a new argument on appeal.  

 

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The details are here. The most important notes:

• you don't submit an electronic copy of the addendum, and
• during the pilot program, the e-brief is submitted in addition to -- not instead of -- the traditional paper brief. Submitting the e-brief has no effect your brief's due date!

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The Arkansas Supreme Court declined to address two constitutional challenges to the Civil Justice Reform Act in Shipp v. Franklin, No. 07-22 (6/14/07).

 

Shipp was involved in a car wreck with Franklin and filed a lawsuit against him. Franklin filed a third-party complaint against Sanders, and Shipp amended her complaint to include Sanders as a defendant. Prior to trial, Shipp settled with Sanders. The remainder of the case proceeded to trial, with the jury finding Sanders 100% responsible for the accident.

 

On appeal, Shipp raised two constitutional challenges to the Civil Justice Reform Act. First, Shipp challenged the compensatory damages statute, which provides that the plaintiff can only present evidence of medical expenses that the plaintiff actually paid. See A.C.A. § 16-55-212. Shipp claims this statute violates the well-established collateral-source rule.

 

Second, Shipp challenged A.C.A. § 16-55-201, which provides that, for personal injury, the liability of each defendant is several only and not joint. Shipp claimed this statute improperly invades the power of the Arkansas Supreme Court to set rules of procedure.

 

The court decided not to address these questions on grounds of mootness. Because the jury returned a verdict finding Sanders 100% responsible, the case did not present joint tortfeasors to trigger analysis of these statutes. The jury verdict was affirmed.

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The Arkansas Court of Appeals dismissed an appeal because it was not properly perfected in Franks v. Mountain View, Arkansas Planning and Zoning Comm'n, No. 06-1234 (6/13/07).

 

The Frankses developed a subdivision with a common plan of development. In October 2003, the Mountain View Planning and Zoning Commission and the Mountain View City Council permitted a homeowner in the subdivision make curb cuts. The Frankses filed an appeal to circuit court in November 2004. The trial court granted summary judgment to the defendants because the Frankses failed to comply with District Court Rule 9.

 

The court of appeals affirmed, noting that Rule 9 required the Frankses to, within 30 days of the City Council's action, file a certified copy of the record or an affidavit stating they could not timely file the record. As the court noted, "Strict compliance with the requirements of Rule 9 is necessary; substantial compliance will not suffice."

 

In an interesting concurring opinion, Judge Marshall argues that the standard should change to substantial compliance. Under that standard, he argues the Frankses' appeal would have been perfected. 

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The U.S. Supreme Court reversed the Eighth Circuit and held that Arkansas state court is the proper forum for the pending class action against Philip Morris in Watson v. Philip Morris Cos., Inc., No. 05-1284 (6/11/07).

 

Plaintiffs filed a class action suit against Philip Morris claiming deceptive trade practices. Plaintiffs claim Philip Morris altered the tests of its light cigarettes to register lower levels of tar and nicotine than what are actually delivered to consumers. Philip Morris removed the case under the federal officer removal statute. See 28 U.S.C. § 1442(A)(1). Philip Morris argued that, since it was subject to intensive review by the Federal Trade Commission, it was a federal official. The district court agreed, and the Eighth Circuit affirmed (opinion here).

 

The Supreme Court reversed, reasoning that a private firm's compliance with federal laws and regulations cannot rise the private firm to the level of a federal official. The case will return to Arkansas state court, and protracted litigation can be expected.

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The Arkansas Supreme Court granted a writ of prohibition denying jurisdiction to the trial court in CenterPoint Energy, Inc. v. Miller County Circuit Court, No. 06-1294 (6/7/07).

 

Plaintiffs filed a class action against CenterPoint Energy and other companies alleging a scheme to increase energy rates to Texas and Arkansas consumers. The complaint stated claims for fraud and unjust enrichment rather than increased rates. The defendants moved to dismiss, arguing that the Arkansas Public Service Commission ("APSC") has exclusive jurisdiction of disputes regarding energy rates.

 

The trial court denied the motion to dismiss, and the defendants filed a writ of prohibition. The APSC submitted an amicus curiae brief supporting the grant of the writ. The supreme court reviewed similar cases from numerous other states that held jurisdiction lied in public utility commissions. Moreover, the court found persuasive that the Legislature granted the APSC "sole and exclusive jurisdiction" over public utility rates. See A.C.A. § 23-4-201(a)(1).  

 

The supreme court granted the writ, but only to the extent it placed jurisdiction of Arkansas consumers under the APSC. The court refused to exercise jurisdiction over Texas consumers in this case.

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The Arkansas Supreme Court dismissed an appeal in National Home Centers, Inc. v Coleman, No. 06-1315 (5/31/07).

 

National Home Centers filed a foreclosure complaint against Regions Bank, Coleman Homes, LLC, and Newoods, Inc. National was attempting to have its interest in certain property declared superior to the other parties' interests. The trial court granted summary judgment to Regions and Coleman. Newoods never filed an appearance. Although the Court orally granted judgment to National, the oral ruling was never reduced to a written judgment.

 

The Arkansas Supreme Court reversed on two grounds. First, the oral ruling was insufficient to count as a final judgment as to Newoods. Second, National failed to show in the record that Newoods had been properly served. The appeal was dismissed without prejudice.

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The Arkansas Supreme Court previously remanded this case to settle the record and ordered rebriefing because of a basic problem with appellant's brief: in violation of Rule 6(3) of the Rules of Appellate Procedure--Civil, it did not "contain the pleadings from Heard’s case in the district court, particularly Heard’s complaint, Regions’s answer, the district court’s order granting dismissal, or any of the other pleadings considered by the circuit court in reaching its determination."

The Arkansas Supreme Court has now dismissed the case in Heard v. Regions Bank, No. 06-1040, after the appellant failed to follow up on the Court's order.

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Misenheimer v. Pitts, No. CA06-76, returned to the Court of Appeals for a second time this week and the Court of Appeals dismissed again, for the same reason as the first appeal: lack of a final order.

The underlying case involves "various torts in connection with the shooting of [plaintiff's] hogs and cattle." The plaintiffs earlier appealed the Stone County Circuit Court's grant of summary judgment to some, but not all, of the defendants; that appeal was dismissed for lack of a final order.

At that point:

Appellant returned to circuit court and non-suited his case against one alleged tortfeasor, leaving appellees and possibly one other person as the remaining defendants, with trespass, conversion, and assault as the remaining claims.

On November 14, 2005, appellant tried his conversion and assault claims against appellees. Appellees obtained a directed verdict, and judgment was entered accordingly. That is the order from which this appeal is brought. . . . Appellant’s claims for conversion and assault were concluded by a directed verdict, but the record does not indicate that appellant’s trespass count has been dismissed or otherwise resolved. That count therefore remains pending.

(emphasis supplied). This defect would be enough to dismiss the appeal, but there was also another, mysterious, defendant whose inclusion created problems for the appeal:

[A]ppellant, in an amended complaint, added allegations against Sybil McIntire, although he did not list her in the complaint’s caption. It is not clear whether Ms. McIntire was served with a summons—she never appeared in the action, and appellant does not mention her in this appeal. Nevertheless, her being named as a defendant requires that she be dismissed to achieve finality.

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The Arkansas Supreme Court dismissed the appeal as a legal nullity in Clarendon Am. Ins. Co. v. Hickock, No. 06-889 (5/10/07).

 

Jay M. Wallace, a Texas attorney, represented Clarendon America in proceedings before the Workers' Compensation Commission. After an adverse decision, Mr. Wallace filed the notice of appeal on behalf of Clarendon, but he never obtained pro hac vice admission. He later associated Arkansas counsel after the deadline for filing a notice of appeal had expired. P.A.M. Transport and Liberty Mutual moved to dismiss the appeal.

 

The Supreme Court held that Wallace engaged in the unauthorized practice of law by filing a notice of appeal prior to obtaining pro hac vice admission. The court declared that the notice of appeal as filed was a legal nullity and dismissed the appeal with prejudice.

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The Court of Appeals issued two opinions ordering rebriefing due to defective abstracting this week:

In Farm Bureau Mutual Insurance Co. of Arkansas, Inc., v. Nowlin, No. CA06-01053, the appellant's abstract referred "to documents relied upon in evidence at trial, including references to the insurance policy, interrogatories submitted to the jury, and verdict form, that are not included in appellant's abstract or addendum for our review."

And in Johnson v. State, No. CACR06-818, the appellant's abstract "consist[ed] of only eleven pages of abstracted testimony from the three-volume record consisting of approximately 977 pages and omits various sections of testimony and colloquies" needed for appellate review.

Moreover, the Court held that the abstract was insufficient to decide the appellant's evidentiary challenges because:

Appellant included in the addendum some forty-seven pages of photocopied transcript related to the challenges to the evidentiary rulings brought up in this appeal, which consist of material parts of the testimony of the witnesses and colloquies between the trial court, counsel, and other parties. That information should have been abstracted as required by Rule 4-2(a)(5) and included in the abstract section of appellant’s brief. Additionally, appellant failed to include in the abstract any proffered testimony related to the issues presented to this court. Without a proffer, we are unable to evaluate the trial court’s evidentiary rulings, and thus, any related arguments on appeal cannot be reached. See Arnett v. State, 353 Ark. 165, 122 S.W.3d 484 (2003).

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An appellate practice decision Wednesday from the Court of Appeals: Horvath v. State Farm Federal Savings Bank, No. 06-678. Horvath attempted to appeal  pro se appeal from Saline County Circuit Court Grisham A. Phillip's denial of a motion to dismiss and the court's finding that Saline County was proper venue. Neither of these are final orders; hence, no appellate jurisdiction.

The Court also gave short shrift Horvath's alternative request for a writ of prohibition:

We note that Horvath is apparently aware that an appeal is not the proper remedy in this case. In the conclusion of his reply brief, he asks that this court treat his “‘pro se’ pleadings as a petition for a writ of prohibition.” We decline to do so. Pro se appellants receive no special consideration of their argument and are held to the same standard as licensed attorneys. Paris v. State, 87 Ark. App. 344, 192 S.W.3d 277 (2004). The court of appeals does not have jurisdiction to take up petitions for writs of prohibition. Ark. S. Ct. R. 1-2(a)(3). It is Horvath’s responsibility to comply with the rules regarding the preparation and filing of a petition for a writ of prohibition.

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In Scott v. Harris, No. 05-1631, the United States Supreme Court reversed the Eleventh Circuit in a qualified immunity case. The underlying case involved whether an officer's decision to end a high-speed chase by ramming the suspect's vehicle violated the Fourth Amendment (the threshold inquiry in the officer's qualified-immunity defense).

As Dave Hoffman at Concurring Opinions points out, however, the case may have implications beyond the Fourth Amendment context, because the majority's decision was based on an independent review of the police videotape of the chase.  In deciding summary judgment case, of course, "courts are required to view the facts and draw reasonable inferences ?in the light most favorable to the party opposing the [summary judgment] motion.?" Id.(citations and quotations omitted).

Justice Scalia, writing for the 8-1 majority (Justices Breyer and Ginsburg concurred), held that the Eleventh Circuit applied this rule erroneously because the plaintiff's version of the facts were so blatantly contradicted by the videotape: "Respondent's version of the facts is so utterly discredited by [the videotape] that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape." Id. (Quotations of each side's description of the tape are after the jump).

Justice Stevens, dissented, citing the Eleventh Circuit's milder characterization of the chase and chided the majority for deciding the case on its own interpretation of the tape, referring to the majority as "[m]y colleagues on the jury."

SCOTUSblog gives an overview of the decision; additional links (via Howard Bashman) here. Dave Hoffman's post at Concurring Opinions argues that the majority's reliance on its own viewing of the videotape undermines the jurisprudence of appellate review. The Volokh Conspiracy reacts to the decision here (law professor Orin Kerr was co-counsel for police officer). Professor Kerr, in the comment thread of the Concurring Opinions post, reads the case more narrowly: "My view is that this case makes only a narrow point. A plaintiff in a civil action can't make a claim about the facts and get past a videotape that obviously shows the falseness of his allegations so long as the plaintiff doesn't claim the videotape is inaccurate in any way." In an earlier post, Professor Kerr argues that the facts found by the Eleventh Circuit are "technically accurate but irrelevant." Professor Kerr continues, "[t]here's really only one set of undisputed facts, and the question is their legal relevance."

UPDATE: Coverage from the ABA Journal & Report here.

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The Eighth Circuit decided Otter Tail Power Co. v. Surface Transportation Board, No. 06-1962/2412, an administrative procedure by Circuit Judge (and Arkansas native) Lavenski Smith dealing with the arcana of federal regulation of rail shipping prices. The decision is interesting from an appellant practice standpoint because the court imposed a procedural bar on the appellant's arguments, using "a judicially imposed issue-exhaustion requirement when reviewing administrative decisions, which is 'analog[ous] to the rule that appellate courts will not consider arguments not raised before trial courts.'" Id. (quoting Sims v. Apfel, 530 U.S. 103, 108–109 (2000)).

The appellant was Otter Tail Power Company, who appealed the federal Surface Transportation Board's approval of a rate proposed by the Burlington Northern Santa Fe Railroad to haul Otter Tail's coal from from Wyoming to South Dakota. The Board, according to this overview, is a federal agency "charged with the fundamental missions of resolving railroad rate and service disputes and reviewing proposed railroad mergers."

Otter Tail is a "captive shipper" under federal law as it has no alternative carriers to BNSF for shipping its coal. Federal law imposes a reasonableness requirement on the prices carriers charge to captive shippers and an appeal procedure to the Board in case of disputes. In this case BNSF proposed a certain rate for shipping Otter Tail's coal, Otter Trail availed itself of the appeal process, the Board approved BNSF's rate, Otter Tail appealed, and the Eighth Circuit affirmed.

Otter Tail argued on appeal that the Board's decision to use the so-called PPL-test to determine a reasonable rate. The details of the PPL-test were not determinative on appeal, however; for Otter Tail failed to raise the issue sufficiently below:

We note that the joint appendix submitted by the parties consists of over 300 pages of motions, exhibits, and other relevant material excluding Otter Tail's final brief. Out of these 300 pages, Otter Tail can only point to twenty-one words spread over two sentences found in two different proceedings where it referenced the Board's adoption of the PPL-test. In the first reference, Otter Tail states, "Otter Tail is uncertain why the Board has posed the cross-subsidy question . . ." The second citation by Otter Tail states "Otter Tail . . . continues to object to the PPL-test . . . "

The Court acknowledged that "Neither the Supreme Court nor this court has articulated with precision the requirements an appellant must fulfill to successfully claim that it has properly raised and exhausted an issue before the Board," but twenty-one words over two sentences in a 300-page record are obviously not enough.

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In a cautionary tale about keeping track of the status of a case that is under consideration by the trial court, the Arkansas Supreme Court dismissed Sloan v. Arkansas Rural Medical Practice Loan and Scholarship Board for lack of appellate jurisdiction.

This appellate practice decision arose out of a contractual dispute between the Board, which provides scholarships to doctors who agree to practice in rural counties after graduation, and two of the Board's scholarship recipients. The scholarship recipients lost before the Board and in front of University of Arkansas President Alan Sugg; they then appealed to Pulaski County Circuit Court, where Circuit Judge Marion Humphrey ruled.

On June 23, 2006, the trial court issued an order holding, in effect, for the Scholarship Board.

On July 24, 2006, of course, the 30-day period of Rule 4(a) of the Arkansas Rules of Civil Appellate Procedure--Civil passed. Without a timely notice of appeal there is no appellate jurisdiction and no appeal.

On September 21, 2006, however, the Sloans filed a motion to extend their time to file the appeal, which the court granted; the notice of appeal followed on September 29, 2006. The Arkansas Supreme Court found that the motion was erroneous and the notice late, and dismissed.

The Sloans attempted to avoid their appellate fate by arguing that they didn't know about the June order because the clerk failed to disseminate it. The Court gave short shrift to this argument:

[The] Sloans filed a motion requesting that the circuit court extend the time for filing the notice of appeal because the clerk’s office had “failed to disseminate the order” to the Sloans. This bare allegation is the only evidence in the record used to assert grounds for an extension under Rule 4(b)(3). This conclusion and self-serving allegation falls far short of establishing the diligence required of the Sloans and their attorneys so they may acquire any help or benefit from Rule 4(b)(3).

There are two other interesting appellate practice points in this opinion:

• The Sloans filed an affidavit in the Supreme Court detailing their diligence in checking the circuit court's docket, but the Court held that  the affidavit was outside the record. The Court also pointedly asked: "Even if this court could consider these affidavits, it raises the question of why, if the two affiants were closely monitoring the progress of this case and its appeal, did the Sloans fail to discover when it was filed and wait almost three months to request an extension for their appeal?"
  
• The Sloans had filed a motion to dismiss the appeal; it is unclear whether the motion was intended to avoid a dismissal by published opinion or to gain an opportunity to save the appeal below. In any event, the Court denied the motion, reasoning that it could not dismiss an appeal that it had never acquired appellate jurisdiction of in the first place.
  

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The United States Supreme Court heard oral argument (transcript here) yesterday in Watson v. Philip Morris Companies, Inc., No. 05-1284. From the invaluable SCOTUSblog, the argument preview is here and the blog coverage roundup is here. This is a case about federal removal jurisdiction; a good description of the case and question presented is from this Washington Post article (which is quoted in a post at the Mass Tort Blog):

The cigarette case, Watson v. Philip Morris (05-1284), comes from Arkansas, where consumers alleged that the company had violated the state's deceptive-advertising law with claims about its "light" cigarettes. Similar class-action lawsuits have been filed around the country.

But Phillip Morris, whose parent company is now known as Altria Group Inc., was successful in having the case transferred to federal courts, saying that its advertising is regulated by the Federal Trade Commission, and that made it a "person acting under" a federal officer.

The Bush administration said it disagreed with the U.S. Court of Appeals for the 8th Circuit ruling upholding the lower court's decision. Nevertheless, Solicitor General Paul D. Clement had recommended the Supreme Court not take the case, saying it did not warrant the court's review.

Those who sued said the move to federal court denies the right of states to be the primary forum for adjudicating state laws.

The Eighth Circuit opinion affirms the unpublished opinion of United States District Judge G. Thomas Eisele for the Eastern District of Arkansas . The case originated in Pulaski County Circuit Court, Sixth Division (Pulaski County Circuit Judge Tim Fox, presiding).

Local coverage seems somewhat limited: Channel 7.

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The Eighth Circuit considered Arkansas's unique practice of abstracting the record on appeal today, holding that "[t]he Arkansas abstracting rule is a procedural bar to federal habeas review." Clay v. Norris, No. 06-1157.

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"In this case, for the first time, we are faced with the question of whether a trial court order granting permissive intervention, but denying intervention as a matter of right, is immediately appealable. It is not." Duffield v. Benton County Stone Co., No. 06-1329.

The Court acknowledged that an interlocutory appeal normally lies against an order denying intervention as of right under Rule 2(a)(2) of the Appellate Rules of Appellate Procedure--Civil. This is because such is an order determines the outcome of the action as to the party attempting to intervene. In Duffield, however, the Court held that when the intervening party is granted permissive intervention in the same breath as it is denied intervention by right, the party's arguments as to intervention by right can be addressed on direct appeal after the outcome in the trial court.

Since the order was not appealable, the Court held it lacked appellate jurisdiction and dismissed. An interesting note on this case is that the parties did not recognize the jurisdictional problem, which the Court raised sua sponte.

More on the Court's analysis after the jump.

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Hanners v. Giant Oil Co. of Arkansas, Inc., No 06-800, is another "Rule 54(b) dismissal-with-instructions-on-abstracting" opinion released on March 15, 2007. In this case the culprit was not undismissed John Doe defendants, but an unruled-upon counterclaim.

The Court also admonished the parties to abstract the arguments presented at an admittedly relevant hearing, rather than reproducing them verbatim in the addendum:

In the case at bar, the abstract submitted contains the following statement:

Since the case on appeal involves an appeal from a summary judgment and an order granting Appellee’s motion for attorney fees, neither of which includes a transcript of testimony, there will be no abstract of testimony in this case.

Although there was no testimony presented at the hearing on summary judgment or the hearing on attorney fees, transcripts of both of those hearings are included in the Addendum to this Brief. Arguments of counsel are not abstracted, but are included in the Addendum. The trial court’s ruling at the summary judgment hearing held February 3, 2006, is abstracted below along with the trial court’s ruling from the bench at the attorney fee hearing held July 6, 2006, for the convenience of the Court.

The Court did not find this arrangement to be convenient:

[I]nstead of abstracting the transcript of these hearings as required by Rule 4-2(a)(5), Hanners has included a copy of each transcript in the addendum. This does not comply with Rule 4-2(a)(5). See Simons v. Marshall, ___ Ark. ___, ___ S.W.3d ___
(Mar. 1, 2007) (per curiam).

Although this abstracting decision is distinguishable from Vimy Ridge Muni. Water Imp. Dist. v. Ryles (the Ryles appellant considered the unabstracted hearing "nece