A Sharply Divided Arkansas Supreme Court on Preservation Pitfalls

On May 16, 2013, the Arkansas Supreme Court issued a decision in TEMCO v. Gann, 2013 Ark. 202.   Like many decisions this term, the Court was sharply divided, with two dissents joined by three members of the Court.  The crux of the decision was whether three of the four points raised on appeal were preserved for appellate review.  Quoting from the 4-judge majority:

In summary, we reiterate that the motion to dismiss was based on several grounds, yet the circuit court granted dismissal based on only one of those several grounds—that the complaint was barred by statute, specifically section 18-44-115(a)(4), due to TEMCO’s failure to give sufficient notice. That is the only ruling the circuit court made. TEMCO argues reversal based on other arguments that were raised below, but not ruled on. As Appellant, it was TEMCO’s burden to obtain or insist on rulings on issues it desired to have reviewed on appeal. See Meador v. Total Compliance Consultants, Inc., 2013 Ark. 22, ___ S.W.3d ___; see also Ghegan & Ghegan, 345 Ark. 514, 49 S.W.3d 652. Alpha Marketing and Ground Zero are very clear that this court will not presume rulings based on a trial court’s silence. Ghegan & Ghegan is very clear that we will not presume a ruling based on a trial court’s general observations. This court is bound to follow these cases and is therefore precluded from reaching the merits of the arguments raised in this appeal, save the attorneys’ fees argument which is rendered without merit due to our summary affirmance.
The orders of the circuit court are affirmed.

Compare that to the Chief Justice’s dissent (joined by Baker and Hart):

Here the circuit court stated that it had considered all arguments, pleadings, briefs, and exhibits and it ruled.  To now conclude that the circuit court did not rule, when it expressly states that it did rule, is error. This decision puts counsel in an untenable position that counsel will be held responsible for the failure to obtain a ruling under the very narrow principles set out by the majority. This means that counsel must persuade the circuit-court judge that an extremely detailed, and finite written order must be issued. While counsel are sometimes assigned by the circuit court to draft a precedent, that is not always the case. Even if counsel were to always draft the precedent, there will be disputes between counsel and the circuit court, which will result in matters coming before this court under its original jurisdiction. This court will be faced with petitions to compel the circuit court to act in a manner that counsel believes is required by the majority’s decision. Overcrowded circuit-court dockets and overworked circuit-court judges will be compelled to engage in needless extra work. Counsel will be put in the unenviable position of having to challenge circuit judges before whom they customarily practice.

COMMENTARY:  This decision illustrates the difficulty counsel faces whenever more than one issue is raised to a trial court in a summary judgment or motion to dismiss context.  TEMCO holds that the following language:

“[t]he parties came before this Court to be heard on Defendants’ Motion to Dismiss. Upon consideration of all arguments, pleadings, briefs, and exhibits, this Court finds that the Defendants’ Motion to Dismiss should be and hereby is GRANTED.”

is not good enough to to preserve alternative arguments that were raised, briefed and argued. Counsel must find a way to obtain a detailed and specific ruling on all alternative arguments that were raised, even if those arguments are not the basis for the trial court’s ruling.  The Chief Justice’s dissent says this will put counsel in the “untenable” position of routinely forcing trial courts to issue “extremely detailed and finite written order[s]” on arguments they have summarily rejected.

The full decision can be found here: http://opinions.aoc.arkansas.gov/WebLink8/0/doc/316039/Electronic.aspx

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