Annual Recommendations of the Committee on Civil Practice

SUPREME COURT OF ARKANSAS — IN RE RECOMMENDATIONS OF
THE COMMITTEE ON CIVIL PRACTICE
Per Curiam Opinion Delivered June 20, 2013
2013 Ark. 278

Click here for the full text: http://opinions.aoc.arkansas.gov/WebLink8/0/doc/316775/Electronic.aspx

This per curiam contains the recommendations of the Supreme Court’s Civil Practice Committee for rule changes.  The per curiam contains the proposed changes in a line-out format so it is easy to see what amendments are proposed.   Many of the changes are minor matters.  One change clarifies that motions in the appellate courts need not be bound like a brief, but can simply be stapled in the corner.   A prior change to Rule 2-1 said that motions had to be bound like a brief, but in practice the clerk’s office preferred that motions only be stapled to make it easier to scan them to a PDF.   Another change requires only one redacted copy of a brief that includes confidential information under Administrative Order 19.    Rule 4-1 and 4-4.   Another change (Rule 4-2) requires that multi-volume briefs be clearly labeled by volume.   The court’s practice that an appeal will not be dismissed upon motions of the parties or notice of settlement if the appeal has been submitted for decision is now codified in Rule 4-4(e).

Rule 6 of the Rules of Appellate Procedure – Civil is amended to say that stipulations or motions to supplement the record must be made within 30 days of the filing of the opening brief.

Rule 9 of the District Court Rules is amended extensively to clarify the process for bringing an appeal from a district court to a circuit court.

Lastly, the committee recommended some changes to the official probate forms.

Comments on the suggested rules changes should be made in writing before July 31, 2013 to:

Leslie W. Steen, Clerk, Supreme Court of Arkansas

Attn.: Civil Procedure Rules

Justice Building

625 Marshall Street

Little Rock, Arkansas 72201

Advertisements

New Cover Sheets Required for Appeals

“The Clerk of the Supreme Court and Court of Appeals is implementing a new case
management system, and in connection with this system, the clerk studied the use of cover
sheets in initiating cases. Cover sheets have been in use in our circuit courts for a number of
years, but they are not required in our appellate courts. The clerk has determined that in
performing the various tasks required when a case is opened and for subsequent case
management, a cover sheet to accompany an initial filing would be beneficial.”

IN RE ADOPTION OF SUPREME COURT AND COURT OF APPEALS RULE 3-7. COVER SHEET, 2013 Ark. 277.

Effective August 1, 2013, any record or initial pleading filed in the appellate court must also include a cover sheet.  The Administrative Office of the Courts will be responsible for the contents and format of the cover sheet.

http://opinions.aoc.arkansas.gov/WebLink8/0/doc/316758/Electronic.aspx

Hollandsworth Presumption Applies to Joint Legal Custody (Based on a 5-4 decision of the Court of Appeals)

The Arkansas Court of Appeals continues to grapple with the application of Hollandsworth v. Knyzweski, 353 Ark. 470, 109 S.W.3d 653 (2003).   Hollandsworth announced a presumption in favor of a custodial parent’s relocation, and that relocation alone would not constitute a material change of circumstances to justify a change of custody.   But even after the Supreme Court’s decision in Hollandsworth, this issue is still the subject of much disagreement, as evidenced by the rare nine-judge decision today from an en banc Arkansas Court of Appeals.

In Bishop v. Singletary, 2013 Ark. App. 394, Judge Wynne was joined by Judges Walmsley, Glover and Hixon, with Judge Brown concurring, in reversing a trial court’s change of custody when the mother proposed to move out-of-state. The mother and father shared joint legal custody, but the mother had primary physical custody.   The trial court ruled that the Hollandsworth presumption did not apply in this circumstance, and granted a change of custody to the father. The five judge majority reversed, finding that the move was not a material change and that the trial court was obligated to apply Hollandsworth, even in a joint legal custody situation.

But four other judges on the court dissented.  Chief Judge Gladwin framed the issue as whether the joint custody arrangement was a question of fact or question of law.  He viewed it as a question of fact, and would affirm based on the standard of review because he could not say the trial court’s decision was clearly erroneous.  Notably, Chief Judge Gladwin’s dissent argues that the Hollandsworth presumption need not apply under these circumstances.

The three remaining judges on the case (Wood, Harrison, and Gruber) joined in a dissent disagreeing with both the majority opinion and Gladwin’s dissent.  Their take on the issue was this:

“Based on the testimony and the decree, the court found that the parents had a true joint-custody arrangement and that neither was entitled to the Hollandsworth presumption.  This finding was not clearly against the preponderance of the evidence, and we should affirm.”

It will be interesting to see if the Supreme Court takes this case on review to attempt to bring some certainty to this issue.  The full text of today’s decision in Bishop v. Singletary is available here: http://opinions.aoc.arkansas.gov/WebLink8/0/doc/316667/Electronic.aspx

New Rule 1-8 Effective August 1, 2013

Starting August 1st, all briefs and motions filed in Arkansas appellate courts must also include a PDF file.   Here is an excerpt from the new rule:

 

(a) Motions, petitions, writs, briefs, responses, and replies filed in the appellate court, except those filed by a party proceeding pro se or by a party who by court order has been allowed to prosecute the suit in forma pauperis, shall be submitted with an electronic copy of those documents in Adobe Portable Document Format (PDF).  Submissions in PDF of circuit court records or parts of records filed in the appellate court is encouraged but not required.  Submission of PDF documents in text-searchable Adobe Portable Document Format is also encouraged by not required.

The new rule also proscribes requirements for naming the electronic file.   For now, section (f) requires the PDF files be submitted on a disc or flash drive.  The Reporters Notes state this is a “transitional step toward the anticipated requirement of electronic filing of documents in the Arkansas appellate courts (See Administrative Order 21 – Electronic Filing).   The full per curiam can be found here: Rule 1-8

 

 

Summary Judgment Affirmed in Malpractice Case Based on “Locality Rule.” Arguments Raised for the First Time in a Motion for Reconsideration Will Not Be Considered on Appeal.

This decision handed down today (June 5, 2013) by the Arkansas Court of Appeals affirmed a trial court’s order granting summary judgment in a malpractice case.  The plaintiff developed an infection at an epidural site.  She alleged the infection would not have occurred but for negligence in prepping and sterilizing the site.  There was also a claim that there was no informed consent for a student to administer the epidural.   The defense submitted affidavits in support of summary judgment.  The plaintiff submitted counter-affidavits from experts (an anesthesiologist, a CRNA, and a registered nurse).  The trial court ruled in favor of the defense, holding that the plaintiff’s expert affidavits did not satisfy the “locality rule” or meet their burden on proximate cause:

The circuit court granted the appellees’ motion for summary judgment, finding that the Quattlebaums’ experts’ affidavits failed to properly establish the standard of care required of the appellees. Specifically, regarding the failure-to-sterilize claim, the circuit court found that the “conclusory statements of familiarity” with local standards did not satisfy the locality rule found in Arkansas Code Annotated section 16-114-106(b). Moreover, the court found that the affidavits did not provide evidence of a breach of the requisite standard of care. Finally, the court determined that the Quattlebaums’ experts did not provide evidence of proximate cause, and the Quattlebaums had not proven the elements necessary to apply the doctrine of res ipsa loquitur. As to the claim of lack of informed consent, the circuit court again found that the affidavits did not satisfy the locality rule; in addition, the court concluded that there was no evidence of proximate cause of any damages resulting from the performance of the procedures by the student nurse-anesthetist rather than by the anesthesiologist.

The plaintiff filed a motion to reconsider, arguing that the defense expert affidavits were conclusory, contained no admissible evidence, no facts about the plaintiff’s treatment, no mention of their familiarity with the standard of care in Little Rock, and were not stated to a reasonable degree of medical certainty.   (But see Muccio v. Hunt, 2012 Ark. 416 on use of the “motion for reconsideration”).  On appeal, the Court refused to address those arguments, holding:

These arguments, however, were made for the first time in the Quattlebaums’ motion
for reconsideration. It is well settled that our appellate courts will not consider an argument
made for the first time in a posttrial motion. See Lee v. Daniel, 350 Ark. 466, 91 S.W.3d 464
(2002); Wal-Mart Stores, Inc. v. Lee, 348 Ark. 707, 74 S.W.3d 634 (2002); Rose v. Rose, 2013
Ark. App. 256, ___ S.W.3d ___. An issue must be presented to the trial court at the earliest
opportunity in order to preserve it for appeal. Plymate v. Martinelli, 2013 Ark. 194 (refusing
to address an argument concerning the constitutionality of section 16-114-206 where it was
not raised until the plaintiff’s motion for new trial or for reconsideration). Stated another
way, a party may not wait until the outcome of a case to bring an error to the trial court’s
attention. LaFont v. Mooney Mixon, 2010 Ark. 450, 374 S.W.3d 668. The Quattlebaums did
not raise the specific arguments they make on appeal until their motion for reconsideration.
They were not timely raised and are not preserved for our review on appeal, and we
therefore affirm.

The case is Quattlebaum v. McCarver, et al., 2013 Ark. App. 376.  Here is the link: http://opinions.aoc.arkansas.gov/WebLink8/0/doc/316394/Page1.aspx

Summary judgment based on proximate cause affirmed in malpractice case

The Arkansas Court of Appeals affirmed summary judgment granted in favor a surgeon.  Black v. Rowen, 2013 Ark. App. 349.  (Here is the link: http://opinions.aoc.arkansas.gov/WebLink8/0/doc/316114/Electronic.aspx )

The plaintiff alleged the surgeon lacked the skill to deal with an intraoperative complication, and was negligent in failing to promptly call for assistance.   The opinion recites the standard of review for summary judgment, and the elements that must be proven in a medical negligence case, including the element of proximate cause:

Proximate causation is an essential element for a cause of action in negligence. “Proximate cause” is defined, for negligence purposes, as that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. Although proximate causation is usually a question of fact for a jury, where reasonable minds cannot differ, a question of law is presented for determination by the court.

But in spite of the admonition that proximate cause is usually a question of fact for a jury, the Court of Appeals in this decision affirmed summary judgment, holding there was a lack of proof on how the injury was sustained and that calling a qualified surgeon sooner would have prevented the damages.

Commentary:  Juries are the arbiters of disputed facts.  Here, there seems to be ample proof to submit the case to a jury.  Proximate cause is a unique element.   It is rarely susceptible to direct proof.   It is often inferred as the essential link between the proven negligence and damages.

“Our case law is replete with the proposition that causation is almost always a question of fact for the jury and not appropriate for summary judgment.” Green v. Alpharma, 373 Ark. 378, 395, 284 S.W.3d 29, 42 (2008), citing Southeastern Distributing Co. v. Miller Brewing Co., 366 Ark. 560, 237 S.W.3d 63 (2006); Miller Brewing Co. v. Roleson Inc., 365 Ark. 38, 223 S.W.3d 806 (2006); Coca-Cola Bottling Co. v. Gill, 352 Ark. 240, 100 S.W.3d 715 (2003); and Wal-Mart Stores, Inc. v. Lee, 348 Ark. 707, 74 S.W.3d 634 (2002).    

Without the benefit of the expert affidavits and deposition testimony, it is impossible to fully evaluate exactly what proof was submitted.  However, the excerpt from the plaintiff’s affidavit at page 3 of the opinion seems to address the proximate cause issue directly:    “. . . followed procedure required by the standard of care and called for assistance from one of the on-call surgeons for that day, it is more likely than not Mr. Black would not have suffered the injuries he did.”

This decision is likely to confound trial courts and litigants grappling with the legal standard for proximate cause at the summary judgment stage.  Perhaps the Arkansas Supreme Court will review the decision and clarify this point.

Tim Cullen

Overnight guests in violation of decree requires finding of contempt in custody case

This case is best summarized by this excerpt from the decision:

The decree of the trial court contained a provision prohibiting the parties from having
overnight romantic partners while the children were present. Uselton never challenged the
validity of the underlying court-ordered overnight-guest provision below. Rather, she argued
that her conduct did not fall within the provision. The court specifically found that her
conduct fell within the provision and found that her violation of that provision was willful.
Willful disobedience of a valid order of a court is, by definition, contemptuous behavior. See
Henderson v. Dudley, 264 Ark. 697, 710, 574 S.W.2d 658, 666 (1978) (“[T]he disobedience
of any valid judgment, order or decree of a court having jurisdiction to enter it is such an
interference with the administration of justice as to constitute contempt.”). Yet, the court did
not find her in contempt. Because we cannot reconcile these two findings, we reverse and
remand.

Davenport v. Uselton, 2013 Ark. App. 344.  http://opinions.aoc.arkansas.gov/WebLink8/0/doc/316118/Electronic.aspx

Rebriefing ordered for a third time

Apparently it will take three tries to get this appeal decided.   First, the parties failed to secure a final order from the trial court, and the appeal was dismissed.  Chesapeake Exploration, LLC v. Whillock, 2012 Ark. App. 397.  Then the parties obtained the necessary final order, and filed a second set of briefs.   But the second appeal was also dismissed.  Chesapeake Exploration, LLC v. Whillock, 2013 Ark. App. 339.  This time the Court of Appeals faulted counsel for failing to abstract excerpts from depositions that were reproduced verbatim in the addendum.  Here’s the short opinion ordering the appeal dismissed: http://opinions.aoc.arkansas.gov/WebLink8/0/doc/316117/Electronic.aspx

Arbitration agreement for internet auto sale is enforceable

The Arkansas Court of Appeals reversed a trial court’s ruling denying arbitration, holding that an arbitration agreement related to the sale of an automobile conducted over the internet is valid and enforceable, even where an officer of the seller did not sign the agreement. The Court of Appeals held:

As in Arkansas, parties may become bound by the terms of the contract even if they do not sign it, if their assent is otherwise indicated, such as by the acceptance of benefits under the contract or by the acceptance of the other’s performance. Lankford v. Orkin Exterminating Co., 597 S.E.2d 470 (Ga. Ct. App. 2004); Comvest, L.L.C. v. Corporate Sec. Grp., 507 S.E.2d 21 (Ga. Ct. App. 1998).

The case is Asbury v. McCain, 2013 Ark. App. 338.   Here is a link: http://opinions.aoc.arkansas.gov/WebLink8/0/doc/316134/Electronic.aspx