IN RE: IMPLEMENTATION of AMENDMENT 80: AMENDMENTS to RULES oF APPELLATE PROCEDURE--CIVIL and RULES of the SUPREME COURT and COURT of APPEALS

___ S.W.3d ___

Supreme Court of Arkansas

Delivered June 7, 2001

Per Curiam. In response to the passage of Amendment 80, our Committee on Civil Practice has recommended changes to the Rules of Appellate Procedure-Civil and the

Rules of the Supreme Court and Court of Appeals. We approve the Committee's recommendations and thank them for another excellent job. We hereby amend and republish the rules, or subdivisions thereof, as set out in this order. The rules affected are the following:

Rules of Appellate Procedure--Civil: 2, 3, 4, 5, 6, 7, and 8;

Rules of the Supreme Court and Court of Appeals: 1-2, 1-5, 3-1, 3-2, 3-4, 3 -5, 3-6,

4-2, 4-4, 5-3, 6-1, 6-3, 6-5, and 6-7.

These changes shall be effective July 1, 2001.

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 Appellate Procedure-Civil

and Rules of the Supreme Court and Court of Appeals

A. Rules of Appellate Procedure-Civil

1. Rule 2 is amended by revising paragraphs (1), (11), (12) of subdivision (a), the introductory sentence of subdivision (c), and paragraph (2) of subdivision (c) to read as follows:

(a) An appeal may be taken from a circuit court to the Arkansas Supreme Court from:

1. A final judgment or decree entered by the circuit court;

* * *

11. An order or other form of decision which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties in a case involving multiple claims, multiple parties, or both, if the circuit court has directed entry of a final judgment as to one or more but fewer than all of the claims or parties and has made an express determination, supported by specific factual findings, that there is no just reason for delay, and has executed the certificate required by Rule 54(b) of the Rules of Civil Procedure; and

12. An order appealable pursuant to any statute in effect on July 1, 1979, including Ark. Code Ann. § 16-108-219 (an order denying a motion to compel arbitration or granting a motion to stay arbitration, as well as certain other orders regarding arbitration) and § 28-1-116 (all orders in probate cases, except an order removing a fiduciary for failure to give a new bond or render an accounting required by the court or an order appointing a special administrator).

* * *

(c) Appeals in juvenile cases shall be made in the same time and manner provided for appeals from circuit court.

* * *

2. Pending an appeal from any case involving a juvenile out-of-home placement, the circuit court retains jurisdiction to conduct review hearings.

The Reporter's Notes accompanying Rule 2 are amended by adding the following:

Addition to Reporter's Notes, 2001 Amendment: The reference to chancery and probate courts in the introductory clause of Rule 2(a) has been deleted in light of Constitutional Amendment 80, the new judicial article approved by the voters in November 2000. That amendment established the circuit courts as the state's "trial courts of original jurisdiction" and abolished the separate chancery and probate courts. For the same reason, the references to "trial court" in subdivisions (a)(1) and (a)(11) have been replaced with "circuit court."

The term "probate court" has been deleted from subdivision (a)(12) and the provision rewritten to refer to "probate cases." Similarly, the reference to "juvenile court" in the introductory sentence of subdivision (c) has been deleted and the sentence revised to refer to "juvenile cases." In subdivision (c)(2), the reference to "juvenile court" has been changed to "circuit court."

2. Rule 3 is amended by revising subdivisions (b) and (d) to read as follows:

(b) How taken. An appeal shall be taken by filing a notice of appeal with the clerk of the circuit court that entered the judgment, decree, or order from which the appeal is taken. Failure of the appellant or cross-appellant to take any further steps to secure review of the judgment or decree appealed from shall not affect the validity of the appeal or cross-appeal, but shall be ground only for such action as the appellate court deems appropriate, which may include dismissal of the appeal or cross-appeal. If, however, the record on appeal has not been filed pursuant to Rule 5 of these rules, the circuit court in which the notice of appeal was filed may dismiss the appeal or cross-appeal upon petition of all parties to the appeal or cross-appeal accompanied by a joint stipulation that the appeal or cross-appeal is to be dis missed.

(d) Cross-appeals. A cross-appeal may be taken by filing a notice of cross-appeal with the clerk of the circuit court that entered the judgment, decree or order being appealed.

The Reporter's Notes accompanying Rule 3 are amended by adding the following:

Addition to Reporter's Notes, 2001 Amendment: In the third sentence of subdivision (b), the term "trial court" has been changed to "circuit court." Under Constitutional Amendment 80, the circuit courts are the "trial courts of original jurisdiction" in the state. Also, the references to the "clerk of the court" in subdivisions (b) and (d) have been replaced with "clerk of the circuit court." In most cases, the circuit clerk serves as clerk of the circuit court and the notice of appeal will be filed in the circuit clerk's office. However, in some counties the county clerk is clerk of the circuit court with respect to probate matters. This division of labor is discussed in the 2001 Reporter's Note accompanying Rule 3 of the Rules of Civil Procedure.

3. Rule 4 is amended by revising subdivisions (a), (b)(1),(b)(3), and (d) to read as follows:

(a) Time for filing notice of appeal. Except as otherwise provided in subdivisions (b) and (c) of this rule, a notice of appeal shall be filed within thirty (30) days from the entry of the judgment, decree or order appealed from. A notice of cross-appeal shall be filed within ten (10) days after receipt of the notice of appeal, except that in no event shall a cross-appellant have less than thirty (30) days from the entry of the judgment, decree or order within which to file a notice of cross-appeal. A notice of appeal filed after the circuit court announces a decision but before the entry of the judgment, decree, or order shall be treated as filed on the day after the judgment, decree, or order is entered.

(b) Extension of time for filing notice of appeal.

(1) Upon timely filing in the circuit court of a motionfor judgment notwithstanding the verdict under Rule 50(b) of the Arkansas Rules of Civil Procedure, a motion to amend the court's findings of fact or to make additional findings under Rule 52(b), a motion for a new trial under Rule 59(a), or any other motion to vacate, alter, or amend the judgment made no later than 10 days after entry of judgment, the time for filing a notice of appeal shall be extended for all parties. The notice of appeal shall be filed within thirty (30) days from entry of the order disposing of the last motion outstanding. However, if the circuit court neither grants nor denies the motion within thirty (30) days of its filing, the motion shall be deemed denied by operation of law as of the thirtieth day, and the notice of appeal shall be filed within thirty (30) days from that date.

(2) * * *

(3) Upon a showing of failure to receive notice of the judgment, decree or order from which appeal is sought and a determination that no party would be prejudiced, the circuit court may, upon motion filed within 180 days of entry of the judgment, decree, or order, extend the time for filing the notice of appeal for a period of fourteen (14) days from the date of entry of the extension order. Notice of any such motion shall be given to all other parties in accordance with Rule 5 of the Arkansas Rules of Civil Procedure.

(d) When judgment is entered. A judgment, decree or order is entered within the meaning of this rule when it is filed with the clerk of the circuit court in which the claim was tried. A judgment, decree or order is filed when the clerk stamps or otherwise marks it as "filed" and denotes thereon the date and time of filing.

The Reporter's Notes accompanying Rule 4 are amended by adding the following:

Addition to Reporter's Notes, 2001 Amendment: The references to "trial court" in subdivisions (a), (b)(1), and (b)(3) have been replaced with "circuit court." Constitutional Amendment 80 established the circuit courtsas the "trial courts of original jurisdiction" in the state and abolished the separate chancery and probate courts. Also, the reference to the "clerk of the court" in subdivision (d) has been replaced with "clerk of the circuit court." In most cases, the circuit clerk serves as clerk of the circuit court. However, in some counties the county clerk handles probate matters. This division of labor is discussed in the 2001 Reporter's Note accompanying Rule 3 of the Rules of Civil Procedure.

4. Rule 5 is amended to read as follows:

(a) When filed. The record on appeal shall be filed with the clerk of the Arkansas Supreme Court and docketed therein within 90 days from the filing of the first notice of appeal, unless the time is extended by order of the circuit court as hereinafter provided. When, however, an appeal is taken from an interlocutory order under Rule 2(a)(6) or (7), the record must be filed with the clerk of the Supreme Court within thirty (30) days from the entry of such order.

(b) Extension of time. In cases where there has been designated for inclusion any evidence or proceeding at the trial or hearing which was stenographically reported, the circuit court, upon finding that a reporter's transcript of such evidence or proceeding has been ordered by appellant, and upon a further finding that an extension is necessary for the inclusion in the record of evidence or proceedings stenographically reported, may extend the time for filing the record on appeal, but the order of extension must be entered before the expiration of the period for filing as originally prescribed or extended by a previous order. In no event shall the time be extended more than seven (7) months from the date of the entry of the judgment, decree or order, or from the date on which a timely postjudgment motion under Rule 4(b) is deemed to have been disposed of under Rule 4(c), whichever is later. An appeal from an order disposing of a postjudgment motion under Rule 4 brings up for review the judgment, decree and any intermediate order involving the merits and necessarily affecting the judgment, as well as the orderappealed from. Counsel seeking an extension shall give to opposing counsel notice of the application for an extension of time.

(c) Partial record. Prior to the time the complete record on appeal is filed with the clerk of the Arkansas Supreme Court as provided in this rule, any party may docket the appeal to make a motion for dismissal or for any other intermediate order by filing a partial record with the clerk. At the request of the moving party, the clerk of the circuit court that entered the judgment, decree, or order from which the appeal is taken shall certify the portion of the record designated by that party as being a true and correct copy. It shall be the responsibility of the moving party to transmit the certified partial record to the clerk of the Arkansas Supreme Court.

The Reporter's Notes accompanying Rule 5 are amended by adding the following:

Addition to Reporter's Notes, 2001 Amendment: The term "trial court" in subdivisions (a), (b), and (c) has been replaced with "circuit court." Constitutional Amendment 80 established the circuit courts as the "trial courts of original jurisdiction" in the state and abolished the separate chancery and probate courts. Subdivision (c) has been further revised by specifying that certification of the partial record shall be made by the clerk of "the circuit court that entered the judgment, decree, or order from which the appeal is taken." In most cases, the circuit clerk serves as clerk of the circuit court. However, in some counties the county clerk handles probate matters. This division of labor is discussed in the 2001 Reporter's Note accompanying Rule 3 of the Rules of Civil Procedure.

5. Rule 6 is revising subdivisions (c), (d), and (e) to read as follows:

(c) Record to be abbreviated. All matters not essential to the decision of the questions presented by the appealshall be omitted. Formal parts of all exhibits and more than one copy of any document shall be excluded. Documents shall be abridged by omitting all irrelevant and formal portions thereof. For any infraction of this rule or for the unnecessary substitution by one party of evidence in question and answer form for a fair narrative statement proposed by another, the appellate court may withhold or impose costs as the circumstances of the case and discouragement of like conduct in the future may require; and costs may be imposed upon offending attorneys or parties. Where parties in good faith abbreviate the record by agreement or without objection from opposing parties, the appellate court shall not affirm or dismiss the appeal on account of any deficiency in the record without notice to appellant and reasonable opportunity to supply the deficiency. Where the record has been abbreviated by agreement or without objection from opposing parties, no presumption shall be indulged that the findings of the circuit court are supported by any matter omitted from the record.

(d) Statement of the evidence or proceedings when no report was made or the transcript is unavailable. If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best means available, including his recollection. The statement shall be served on the appellee, who may serve objections or proposed amendments thereto within ten (10) days after service upon him. Thereupon the statement and any objections or proposed amendments shall be submitted to the circuit court for settlement and approval and as settled and approved shall be included in the record on appeal by the clerk of the circuit court that entered the judgment, decree, or order from which the appeal is taken.

(e) Correction or modification of the record. If any difference arises as to whether the record truly discloses what occurred in the circuit court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error oraccident or is misstated therein, the parties by stipulation, or the circuit court, either before or after the record is transmitted to the appellate court, or the appellate court on proper suggestion, or on its own initiative, may direct that the omission or misstatement shall be corrected, and if necessary, that a supplemental record be certified and transmitted. All other questions as to form and content of the record shall be presented to the appellate court.

The Reporter's Notes accompanying Rule 6 are amended by adding the following:

Addition to Reporter's Notes, 2001 Amendment: The references to "trial court" in subdivisions (c), (d), and (e) have been replaced with "circuit court" in light of Constitutional Amendment 80, which established the circuit courts as the "trial courts of original jurisdiction" in the state. Subdivision (d) has been further revised by specifying that certification of the record shall be made by the clerk of "the circuit court that entered the judgment, decree, or order from which the appeal is taken." In most cases, the circuit clerk serves as clerk of the circuit court. However, in some counties the county clerk handles probate matters. This division of labor is discussed in the 2001 Reporter's Note accompanying Rule 3 of the Rules of Civil Procedure.

6. Rule 7 is amended to read as follows:

(a) Certification. The clerk of the circuit court that entered the judgment, decree, or order from which the appeal is taken shall certify the record as being a true and correct copy of the record as designated by the parties.

(b) Transmission. After the record has been duly certified by the clerk, it shall be the responsibility of the appellant to transmit such record to the clerk of the appellate court for filing and docketing.

The Reporter's Notes accompanying Rule 7 are amended by addingthe following:

Addition to Reporter's Notes, 2001 Amendment: The reference to the "clerk of the trial court" in subdivision (a) has been replaced with "clerk the circuit court that entered the judgment, decree, or order from which the appeal is taken." In subdivision (b), the phrase "the clerk of the trial court" has been reduced to simply "the clerk." In most cases, the circuit clerk serves as clerk of the circuit court. However, in some counties the county clerk handles probate matters. This division of labor is discussed in the 2001 Reporter's Note accompanying Rule 3 of the Rules of Civil Procedure.

7. Rule 8 is amended by revising subdivisions (b), (c) and (d) to read as follows:

(b) Supersedeas; by whom issued. A supersedeas shall be issued by the clerk of the circuit court that entered the judgment, decree or order being appealed from unless the record has been lodged with the appellate court in which event the supersedeas shall be issued by the clerk of the appellate court.

(c) Supersedeas bond. Whenever an appellant entitled thereto desires a stay on appeal, he shall present to the court for its approval a supersedeas bond which shall have such surety or sureties as the court requires. The bond shall be to the effect that appellant shall pay to appellee all costs and damages that shall be affirmed against appellant on appeal; or if appellant fails to prosecute the appeal to a final conclusion, or if such appeal shall for any cause be dismissed, that appellant shall satisfy and perform the judgment, decree or order of the circuit court.

(d) Proceedings against sureties. If security is given in the form of a bond or other undertaking with one or more sureties, each surety submits himself to the jurisdiction of the circuit court and irrevocably appoints the clerk of the circuit court that entered the judgment, decree, or order as his agent upon whom any papers affecting his liability on the bond or undertaking may beserved. His liability may be enforced on motion in the circuit court without the necessity of an independent action. The motion and such notice of the motion as the circuit court prescribes shall be filed with the clerk, who shall forthwith mail copies to the sureties if their addresses are known.

The Reporter's Notes accompanying Rule 8 are amended by adding the following:

Addition to Reporter's Notes, 2001 Amendment: The references to "court" in subdivision (b) and to "trial court" in subdivisions (c) and (d) have been replaced with "circuit court." Under Constitutional Amendment 80, the circuit courts are the "trial courts of original jurisdiction" in the state.

In subdivision (b) and the first sentence of subdivision (d), the clerk of the trial court is now referred to as the "clerk of the circuit court that entered the judgment, decree, or order." In the third sentence of subdivision (d), the reference is simply to "the clerk." In most cases, the circuit clerk serves as clerk of the circuit court. However, in some counties the county clerk handles probate matters. This division of labor is discussed in the 2001 Reporter's Note accompanying Rule 3 of the Rules of Civil Procedure.

B. Rules of the Supreme Court and Court of Appeals

1. Rule 1-2(a)(3) is amended to read as follows:

Petitions for quo warranto, prohibition, injunction, or mandamus directed to the state, county, or municipal officials or to circuit courts;

2. Rule 1-5 is amended to read as follows:

No argument, brief, or motion filed or made in the Court shall contain language showing disrespect for the circuit court.

3. Rule 3-1 is amended by revising subdivisions (a), (e), (h), and (j) to read as follows:

(a) Generally. All records shall begin with the style of the court in which the controversy was heard, the name of the judge presiding when the decree, judgment or order was rendered and its date, the names of all the parties litigant, and the nature of the suit or motion. For example: "Trial before A.B., judge of the circuit court on the ___ day of ________, ____;

John Doe, Plaintiff

vs. Action on Promissory Note"

Jane Doe, Defendant

(e) Record on second appeal. When a cause has been once before the Court and a record is again required (for the purpose of correcting error which occurred on retrial), the second record shall begin where the former ended; that is, with the judgment of the appellate court, which should be entered of record in the circuit court, omitting the opinion of the appellate court. The appeal or supersedeas bond should be the last entry included.

(h) Record fee and costs certified. The fee for the production of the record must be certified in all cases; in addition, all costs in the circuit court must be reported, and by whom paid.

(j) Exhibits. Documents of unusual bulk or weight shall not be transmitted by the clerk of the circuit court unless the clerk is directed to do so by a party or by the Clerk of the Court. Physical exhibits other than documents shall not be transmitted by the clerk of the circuit court except by order of the Court.

4. Rule 3-2(a) is amended to read as follows:

(a) Generally. The clerks of the circuit courts in making records to be transmitted to the Court, shall, unless excepted by the provisions of this Rule, includeall matters in the record as required by Rule 3-1(n).

5. Rule 3-4(c) is amended to read as follows:

(c) Exhibits. Photographs, charts, drawings and other documents that can be inserted into the record shall be included. Documents of unusual bulk or weight shall not be transmitted by the clerk of the circuit court unless the clerk is directed to do so by a party or by the Clerk of the Court. Physical evidence, other than documents, shall not be transmitted unless directed by an order of the Court.

6. Rule 3-5(a) is amended to read as follows:

(a) Authorization for writ of certiorari. When jurisdiction is conferred by filing, within the time allowed for appeal, a dated and certified copy of the order or judgment appealed from, the Clerk may, upon authorization by the Court, issue a writ of certiorari to the clerk of the circuit court, the reporter, or any other person charged with the duty of preparing the record on appeal, directing that any omissions or errors in the record be corrected.

7. Rule 3-6(b) is amended to read as follows:

(b) Failure to claim exhibits in civil cases. All exhibits filed in civil cases and not attached to the transcript, in the Supreme Court and Court of Appeals, must be claimed by the party who presented the exhibit to the circuit court and be removed from the Clerk's office within 90 days from the date the mandate is issued. The attorney receiving the exhibits must sign the docket showing their receipt. If an exhibit is not claimed within the 90 days, the Clerk may destroy or dispose of it after giving the parties, or the attorneys of record, 30 days notice of the Clerk's intention to do so.

8. Rule 4-2(a)(6)(A), as adopted by the per curiam order of May 31, 2001, is amended to read as follows:

(6) Argument. (A) First, the appellant's brief shall contain a concise statement of the case without argument. This statement shall be denoted as the "Statement of the Case," shall ordinarily not exceed two pages in length, and shall not exceed five pages without leave of the Court. The pages of the statement of the case shall appear immediately preceding the argument and are not counted against the page limits of the Argument set out in Rules 4-1 (b) and 4-3 (e). The statement of the case should be sufficient to enable the Court to understand the nature of the case, the general fact situation, the action taken by the circuit court, and must include page references to the abstract and Addendum. The Clerk will refuse to accept a brief if the required references to the abstract and Addendum are not included. The appellee's brief need not contain a statement of the case unless the appellant's statement is deemed to be controverted or insufficient.

9. Rule 4-4, as amended by the per curiam order of May 31, 2001, is amended by revising subdivisions (a), (b), (c), and (d) to read as follows:

(a) Appellant's brief. In all civil cases the appellant shall, within 40 days of lodging the record, file 17 copies of the appellant's brief with the Clerk and furnish evidence of service upon opposing counsel and the circuit court. Each copy of the appellant's brief shall contain every item required by Rule 4-2. Unemployment compensation cases appealed from the Arkansas Board of Review may be submitted to the Court of Appeals for decision as soon as the transcript is filed, unless the petition for review shows it is filed by an attorney, or notice of intent to file a brief for the appellant is filed with the Clerk prior to the filing of the transcript.

(b) Appellee's brief - Cross-appellant's brief. The appellee shall file 17 copies of the appellee's brief, and of any further abstract or Addendum thought necessary, within 30 days after the appellant's brief is filed, and furnish evidence of service upon opposing counsel and the circuit court. If the appellee's brief has a supplemental abstract or Addendum, it shall be compiled in accordancewith Rule 4-2 and included in or with each copy of the brief. This Rule shall apply to cross-appellants. If the cross-appellant is also the appellee, the two separate arguments may be contained in one brief, but each argument is limited to 25 pages.

(c) Reply brief - Cross-appellant's reply brief. The appellant may file 17 copies of a reply brief within 15 days after the appellee's brief is filed and shall furnish evidence of service upon opposing counsel and the circuit court. This Rule shall apply to the cross-appellant's reply brief except it must be filed within 15 days after the cross-appellee's brief is filed.

(d) Evidence of service. Briefs tendered to the Clerk will not be filed unless evidence of service upon opposing counsel and the circuit court has been furnished to the Clerk. Such evidence may be in the form of a letter signed by counsel, naming the attorney or attorneys and the circuit court to whom copies of the brief have been mailed or delivered.

10. Rule 5-3(a) is amended to read as follows:

(a) Mandate to be issued in all cases. In all cases, civil and criminal, the Clerk will issue a mandate when the decision becomes final and will mail it to the clerk of the circuit court from which the appeal was taken for filing and recording. A decision is not final until the time for filing of petition for rehearing or, in the case of a decision of the Court of Appeals, the time for filing a petition for review has expired or, in the event of the filing of such petition, until there has been a final disposition thereof.

11. Rule 6-1 is amended by revising subdivisions (a), (c), and (e) to read as follows:

(a) Pleadings - Number of copies. In cases in which the jurisdiction of the Court is in fact appellate although in form original, such as petitions for writs of prohibition, certiorari, or mandamus, the pleadings with certified exhibits from the circuit court (if applicable) aretreated as the record. If the petition falls within subsection (b) or (c) of this Rule, the pleader is required to file the original and seven copies of the pleading along with the record with the Clerk. Evidence of service of a copy upon the adverse party or his or her counsel of record in the circuit court is required. If the proceeding falls within subsection (e) of this Rule, the pleader is required to file only the original pleading along with the certified record. When the petition includes a certified copy of the record in the circuit court, it is not necessary that a copy of such exhibit be served upon the adverse party or his or her counsel. In prohibition cases, a copy of the pleadings will also be served upon the circuit judge, who is ordinarily a nominal party and is not required to file a response.

(c) Applications for temporary relief. When the petitioner intends to apply to the full Court for temporary relief staying the circuit court proceedings pending the consideration of the petition upon its merits, eight copies of the petition must be filed, and reasonable notice of the application for temporary relief must be served upon the other party or the counsel of record in the circuit court and the circuit court. If, after its review and consideration of the record and pleading filed, the Court shall determine that a temporary stay is warranted and granted, briefs shall be required as in other cases under Rule 4-4, and the parties' brief time will be calculated from the date the temporary relief is granted. However, the Court may decide the matter without ruling on the request for a briefing schedule.

(e) Time for filing briefs. If the proceedings in the circuit court have been stayed, or the time before a hearing or trial will allow a briefing schedule, briefs are required as in other cases, the parties' brief time under Rule 4-4 for filing a brief to be calculated from the date on which the petition is filed. The mere filing of a petition for relief under this section does not automatically entitle the petitioner to file briefs and stay the proceedings in the circuit court.

12. Rule 6-3(a) is amended to read as follows:

(a) Scope. In an appeal in which counsel for either side believes that a person's identity should be protected by the Court, counsel may move the Court to do so. These cases may include, but are not limited to, adoptions and appeals in juvenile cases.

13. Rule 6-5(b) is amended to read as follows:

(b) Procedure. In such proceedings, the procedure will conform to that prevailing in bench trials in the circuit courts. Upon filing the original and seven copies of the pleading and payment of a filing fee, a summons or other process will be issued by the Clerk. The respondent's pleading must be filed within the time provided by the Rules of Civil Procedure.

14. Rule 6-7 is amended by deleting subdivision (d), redesignating subdivision (e) as subdivision (d), and revising subdivision (c) to read as follows:

(c) Affirmed in part and reversed in part. The Court may assess appeal costs according to the merits of the case.

(d) Imposing or withholding costs. Whether the case be affirmed or reversed, the Court will impose or withhold costs in accordance with Rule 4-2(b).

Amendments to Rules with Changes Illustrated

[not to be published in Official Rules]

A. Rules of Appellate Procedure-Civil

1. Rule 2 is amended by revising paragraphs (1), (11), (12) of subdivision (a), the introductory sentence of subdivision (c), and paragraph (2) of subdivision (c) to read as follows:

(a) An appeal may be taken from a circuit, chancery, orprobate court to the Arkansas Supreme Court from:

1. A final judgment or decree entered by the trial circuit court;

* * *

11. An order or other form of decision which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties in a case involving multiple claims, multiple parties, or both, if the trial circuit court has directed entry of a final judgment as to one or more but fewer than all of the claims or parties and has made an express determination, supported by specific factual findings, that there is no just reason for delay, and has executed the certificate required by Rule 54(b) of the Rules of Civil Procedure; and

12. An order appealable pursuant to any statute in effect on July 1, 1979, including Ark. Code Ann. § 16-108-219 (an order denying a motion to compel arbitration or granting a motion to stay arbitration, as well as certain other orders regarding arbitration) and § 28-1-116 (all probate court orders in probate cases, except an order removing a fiduciary for failure to give a new bond or render an accounting required by the court or an order appointing a special administrator).

* * *

(c) All appeals from Appeals in juvenile cases court shall be made in the same time and manner provided for appeals from chancery circuit court.

* * *

2. Pending an appeal from any case involving a juvenile out-of-home placement, the juvenile circuit court retains jurisdiction to conduct review hearings.

2. Rule 3 is amended by revising subdivisions (b) and (d) to read as follows:

(b) How taken. An appeal shall be taken by filing a notice of appeal with the clerk of the circuit court which that entered the judgment, decree, or order from which the appeal is taken. Failure of the appellant or cross-appellant to take any further steps to secure review ofthe judgment or decree appealed from shall not affect the validity of the appeal or cross-appeal, but shall be ground only for such action as the appellate court deems appropriate, which may include dismissal of the appeal or cross-appeal. If, however, the record on appeal has not been filed pursuant to Rule 5 of these rules, the trial circuit court in which the notice of appeal was filed may dismiss the appeal or cross-appeal upon petition of all parties to the appeal or cross-appeal accompanied by a joint stipulation that the appeal or cross-appeal is to be dismissed.

(d) Cross-appeals. A cross-appeal may be taken by filing a notice of cross-appeal with the clerk of the circuit court which that entered the judgment, decree or order being appealed.

3. Rule 4 is amended by revising subdivisions (a), (b)(1),(b)(3), and (d) to read as follows:

(a) Time for filing notice of appeal. Except as otherwise provided in subdivisions (b) and (c) of this rule, a notice of appeal shall be filed within thirty (30) days from the entry of the judgment, decree or order appealed from. A notice of cross-appeal shall be filed within ten (10) days after receipt of the notice of appeal, except that in no event shall a cross-appellant have less than thirty (30) days from the entry of the judgment, decree or order within which to file a notice of cross-appeal. A notice of appeal filed after the trial circuit court announces a decision but before the entry of the judgment, decree, or order shall be treated as filed on the day after the judgment, decree, or order is entered.

(b) Extension of time for filing notice of appeal.

(1) Upon timely filing in the trial circuit court of a motion for judgment notwithstanding the verdict under Rule 50(b) of the Arkansas Rules of Civil Procedure, a motion to amend the court's findings of fact or to make additional findings under Rule 52(b), a motion for a newtrial under Rule 59(a), or any other motion to vacate, alter, or amend the judgment made no later than 10 days after entry of judgment, the time for filing a notice of appeal shall be extended for all parties. The notice of appeal shall be filed within thirty (30) days from entry of the order disposing of the last motion outstanding. However, if the trial circuit court neither grants nor denies the motion within thirty (30) days of its filing, the motion shall be deemed denied by operation of law as of the thirtieth day, and the notice of appeal shall be filed within thirty (30) days from that date.

(2) * * *

(3) Upon a showing of failure to receive notice of the judgment, decree or order from which appeal is sought and a determination that no party would be prejudiced, the trial circuit court may, upon motion filed within 180 days of entry of the judgment, decree, or order, extend the time for filing the notice of appeal for a period of fourteen (14) days from the date of entry of the extension order. Notice of any such motion shall be given to all other parties in accordance with Rule 5 of the Arkansas Rules of Civil Procedure.

(d) When judgment is entered. A judgment, decree or order is entered within the meaning of this rule when it is filed with the clerk of the circuit court in which the claim was tried. A judgment, decree or order is filed when the clerk stamps or otherwise marks it as "filed" and denotes thereon the date and time of filing.

4. Rule 5 is amended to read as follows:

(a) When filed. The record on appeal shall be filed with the clerk of the Arkansas Supreme Court and docketed therein within 90 days from the filing of the first notice of appeal, unless the time is extended by order of the trial circuit court as hereinafter provided. When, however, an appeal is taken from an interlocutory order under Rule 2(a)(6) or (7), the record must be filed withthe clerk of the Supreme Court within thirty (30) days from the entry of such order.

(b) Extension of time. In cases where there has been designated for inclusion any evidence or proceeding at the trial or hearing which was stenographically reported, the trial circuit court, upon finding that a reporter's transcript of such evidence or proceeding has been ordered by appellant, and upon a further finding that an extension is necessary for the inclusion in the record of evidence or proceedings stenographically reported, may extend the time for filing the record on appeal, but the order of extension must be entered before the expiration of the period for filing as originally prescribed or extended by a previous order. In no event shall the time be extended more than seven (7) months from the date of the entry of the judgment, decree or order, or from the date on which a timely postjudgment motion under Rule 4(b) is deemed to have been disposed of under Rule 4(c), whichever is later. An appeal from an order disposing of a postjudgment motion under Rule 4 brings up for review the judgment, decree and any intermediate order involving the merits and necessarily affecting the judgment, as well as the order appealed from. Counsel seeking an extension shall give to opposing counsel notice of the application for an extension of time.

(c) Partial record. Prior to the time the complete record on appeal is filed with the clerk of the Arkansas Supreme Court as provided in this rule, any party may docket the appeal to make a motion for dismissal or for any other intermediate order by filing a partial record with the clerk. At the request of the moving party, the clerk of the trial circuit court that entered the judgment, decree, or order from which the appeal is taken shall certify the portion of the record designated by that party as being a true and correct copy. It shall be the responsibility of the moving party to transmit the certified partial record to the clerk of the Arkansas Supreme Court.

5. Rule 6 is revising subdivisions (c), (d), and (e) to read asfollows:

(c) Record to be abbreviated. All matters not essential to the decision of the questions presented by the appeal shall be omitted. Formal parts of all exhibits and more than one copy of any document shall be excluded. Documents shall be abridged by omitting all irrelevant and formal portions thereof. For any infraction of this rule or for the unnecessary substitution by one party of evidence in question and answer form for a fair narrative statement proposed by another, the appellate court may withhold or impose costs as the circumstances of the case and discouragement of like conduct in the future may require; and costs may be imposed upon offending attorneys or parties. Where parties in good faith abbreviate the record by agreement or without objection from opposing parties, the appellate court shall not affirm or dismiss the appeal on account of any deficiency in the record without notice to appellant and reasonable opportunity to supply the deficiency. Where the record has been abbreviated by agreement or without objection from opposing parties, no presumption shall be indulged that the findings of the trial circuit court are supported by any matter omitted from the record.

(d) Statement of the evidence or proceedings when no report was made or the transcript is unavailable. If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best means available, including his recollection. The statement shall be served on the appellee, who may serve objections or proposed amendments thereto within ten (10) days after service upon him. Thereupon the statement and any objections or proposed amendments shall be submitted to the trial circuit court for settlement and approval and as settled and approved shall be included in the record on appeal by the clerk of the circuit court in the record on appeal that entered the judgment, decree, or order from which the appeal is taken.

(e) Correction or modification of the record. If any difference arises as to whether the record truly discloseswhat occurred in the trial circuit court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the trial circuit court, either before or after the record is transmitted to the appellate court, or the appellate court on proper suggestion, or on its own initiative, may direct that the omission or misstatement shall be corrected, and if necessary, that a supplemental record be certified and transmitted. All other questions as to form and content of the record shall be presented to the appellate court.

6. Rule 7 is amended to read as follows:

(a) Certification. The clerk of the trial circuit court that entered the judgment, decree, or order from which the appeal is taken shall certify the record as being a true and correct copy of the record as designated by the parties.

(b) Transmission. After the record has been duly certified by the clerk of the trial court, it shall be the responsibility of the appellant to transmit such record to the clerk of the appellate court for filing and docketing.

7. Rule 8 is amended by revising subdivisions (b), (c) and (d) to read as follows:

(b) Supersedeas; by whom issued. A supersedeas shall be issued by the clerk of the circuit court which rendered that entered the judgment, decree or order being appealed from unless the record has been lodged with the appellate court in which event the supersedeas shall be issued by the clerk of the appellate court.

(c) Supersedeas bond. Whenever an appellant entitled thereto desires a stay on appeal, he shall present to the court for its approval a supersedeas bond which shall have such surety or sureties as the court requires. The bondshall be to the effect that appellant shall pay to appellee all costs and damages that shall be affirmed against appellant on appeal; or if appellant fails to prosecute the appeal to a final conclusion, or if such appeal shall for any cause be dismissed, that appellant shall satisfy and perform the judgment, decree or order of the trial circuit court.

(d) Proceedings against sureties. If security is given in the form of a bond or other undertaking with one or more sureties, each surety submits himself to the jurisdiction of the trial circuit court and irrevocably appoints the clerk of the trial circuit court that entered the judgment, decree, or order as his agent upon whom any papers affecting his liability on the bond or undertaking may be served. His liability may be enforced on motion in the trial circuit court without the necessity of an independent action. The motion and such notice of the motion as the trial circuit court prescribes shall be filed with the clerk of the trial court, who shall forthwith mail copies to the sureties if their addresses are known.

B. Rules of the Supreme Court and Court of Appeals

1. Rule 1-2(a)(3) is amended to read as follows:

Petitions for quo warranto, prohibition, injunction, or mandamus directed to the state, county, or municipal officials or to circuit, chancery, or probate courts;

2. Rule 1-5 is amended to read as follows:

No argument, brief, or motion filed or made in the Court shall contain language showing disrespect for the trial circuit court.

3. Rule 3-1 is amended by revising subdivisions (a), (e), (h), and (j) to read as follows:

(a) Generally. All records shall begin with the style of the court in which the controversy was heard, the nameof the judge presiding when the decree, judgment or order was rendered and its date, the names of all the parties litigant, and the nature of the suit or motion. For example: "Trial before A.B., judge of _____ the circuit court on the ___ day of ________, 19____;

John Doe, Plaintiff

vs. Action on Promissory Note"

Jane Doe, Defendant

(e) Record on second appeal. When a cause has been once before the Court and a record is again required (for the purpose of correcting error which occurred on retrial), the second record shall begin where the former ended; that is, with the judgment of the appellate court, which should be entered of record in the trial circuit court, omitting the opinion of the appellate court. The appeal or supersedeas bond should be the last entry included.

(h) Record fee and costs certified. The fee for the production of the record must be certified in all cases; in addition, all costs in the trial circuit court must be reported, and by whom paid.

(j) Exhibits. Documents of unusual bulk or weight shall not be transmitted by the trial court clerk of the circuit court unless the clerk is directed to do so by a party or by the Clerk of the Court. Physical exhibits other than documents shall not be transmitted by the trial court clerk of the circuit court except by order of the Court.

4. Rule 3-2(a) is amended to read as follows:

(a) Generally. The clerks of the circuit, chancery and probate courts in making records to be transmitted to the Court, shall, unless excepted by the provisions of this Rule, include all matters in the record as required by Rule 3-1(n).

5. Rule 3-4(c) is amended to read as follows:

(c) Exhibits. Photographs, charts, drawings and other documents that can be inserted into the record shall be included. Documents of unusual bulk or weight shall not be transmitted by the trial court clerk of the circuit court unless the clerk is directed to do so by a party or by the Clerk of the Court. Physical evidence, other than documents, shall not be transmitted unless directed by an order of the Court.

6. Rule 3-5(a) is amended to read as follows:

(a) Authorization for writ of certiorari. When jurisdiction is conferred by filing, within the time allowed for appeal, a dated and certified copy of the order or judgment appealed from, the Clerk may, upon authorization by the Court, issue a writ of certiorari to the clerk of the trial circuit court, the reporter, or any other person charged with the duty of preparing the record on appeal, directing that any omissions or errors in the record be corrected.

7. Rule 3-6(b) is amended to read as follows:

(b) Failure to claim exhibits in civil cases. All exhibits filed in civil cases and not attached to the transcript, in the Supreme Court and Court of Appeals, must be claimed by the party who presented the exhibit to the trial circuit court and be removed from the Clerk's office within 90 days from the date the mandate is issued. The attorney receiving the exhibits must sign the docket showing their receipt. If an exhibit is not claimed within the 90 days, the Clerk may destroy or dispose of it after giving the parties, or the attorneys of record, 30 days notice of the Clerk's intention to do so.

8. Rule 4-2(a)(6)(A), as adopted by the per curiam order of May 31, 2001, is amended to read as follows:

(6) Argument. (A) First, the appellant's brief shall contain a concise statement of the case without argument. This statement shall be denoted as the "Statement of theCase," shall ordinarily not exceed two pages in length, and shall not exceed five pages without leave of the Court. The pages of the statement of the case shall appear immediately preceding the argument and are not counted against the page limits of the Argument set out in Rules 4-1 (b) and 4-3 (e). The statement of the case should be sufficient to enable the Court to understand the nature of the case, the general fact situation, the action taken by the trial circuit court, and must include page references to the abstract and Addendum. The Clerk will refuse to accept a brief if the required references to the abstract and Addendum are not included. The appellee's brief need not contain a statement of the case unless the appellant's statement is deemed to be controverted or insufficient.

9. Rule 4-4, as amended by the per curiam order of May 31, 2001, is amended by revising subdivisions (a), (b), (c), and (d) to read as follows:

(a) Appellant's brief. In all civil cases the appellant shall, within 40 days of lodging the record, file 17 copies of the appellant's brief with the Clerk and furnish evidence of service upon opposing counsel and the trial circuit court. Each copy of the appellant's brief shall contain every item required by Rule 4-2. Unemployment compensation cases appealed from the Arkansas Board of Review may be submitted to the Court of Appeals for decision as soon as the transcript is filed, unless the petition for review shows it is filed by an attorney, or notice of intent to file a brief for the appellant is filed with the Clerk prior to the filing of the transcript.

(b) Appellee's brief - Cross-appellant's brief. The appellee shall file 17 copies of the appellee's brief, and of any further abstract or Addendum thought necessary, within 30 days after the appellant's brief is filed, and furnish evidence of service upon opposing counsel and the trial circuit court. If the appellee's brief has a supplemental abstract or Addendum, it shall be compiled in accordance with Rule 4-2 and included in or with each copy of the brief. This Rule shall apply to cross-appellants.If the cross-appellant is also the appellee, the two separate arguments may be contained in one brief, but each argument is limited to 25 pages.

(c) Reply brief - Cross-appellant's reply brief. The appellant may file 17 copies of a reply brief within 15 days after the appellee's brief is filed and shall furnish evidence of service upon opposing counsel and the trial circuit court. This Rule shall apply to the cross-appellant's reply brief except it must be filed within 15 days after the cross-appellee's brief is filed.

(d) Evidence of service. Briefs tendered to the Clerk will not be filed unless evidence of service upon opposing counsel and the trial circuit court has been furnished to the Clerk. Such evidence may be in the form of a letter signed by counsel, naming the attorney or attorneys and the trial circuit court to whom copies of the brief have been mailed or delivered.

10. Rule 5-3(a) is amended to read as follows:

(a) Mandate to be issued in all cases. In all cases, civil and criminal, the Clerk will issue a mandate when the decision becomes final and will mail it to the clerk of the circuit trial court from which the appeal was taken for filing and recording. A decision is not final until the time for filing of petition for rehearing or, in the case of a decision of the Court of Appeals, the time for filing a petition for review has expired or, in the event of the filing of such petition, until there has been a final disposition thereof.

11. Rule 6-1 is amended by revising subdivisions (a), (c), and (e) to read as follows:

(a) Pleadings - Number of copies. In cases in which the jurisdiction of the Court is in fact appellate although in form original, such as petitions for writs of prohibition, certiorari, or mandamus, the pleadings with certified exhibits from the trial circuit court (if applicable) are treated as the record. If the petition falls within subsection (b) or (c) of this Rule, the pleader isrequired to file the original and seven copies of the pleading along with the record with the Clerk. Evidence of service of a copy upon the adverse party or his or her counsel of record in the trial circuit court is required. If the proceeding falls within subsection (e) of this Rule, the pleader is required to file only the original pleading along with the certified record. When the petition includes a certified copy of the record in the trial circuit court, it is not necessary that a copy of such exhibit be served upon the adverse party or his or her counsel. In prohibition cases, a copy of the pleadings will also be served upon the trial circuit judge, who is ordinarily a nominal party and is not required to file a response.

(c) Applications for temporary relief. When the petitioner intends to apply to the full Court for temporary relief staying the trial circuit court proceedings pending the consideration of the petition upon its merits, eight copies of the petition must be filed, and reasonable notice of the application for temporary relief must be served upon the other party or the counsel of record in the trial circuit court and the trial circuit court. If, after its review and consideration of the record and pleading filed, the Court shall determine that a temporary stay is warranted and granted, briefs shall be required as in other cases under Rule 4-4, and the parties' brief time will be calculated from the date the temporary relief is granted. However, the Court may decide the matter without ruling on the request for a briefing schedule.

(e) Time for filing briefs. If the proceedings in the trial circuit court have been stayed, or the time before a hearing or trial will allow a briefing schedule, briefs are required as in other cases, the parties' brief time under Rule 4-4 for filing a brief to be calculated from the date on which the petition is filed. The mere filing of a petition for relief under this section does not automatically entitle the petitioner to file briefs and stay the proceedings in the trial circuit court.

12. Rule 6-3(a) is amended to read as follows:

(a) Scope. In an appeal in which counsel for either side believes that a person's identity should be protected by the Court, counsel may move the Court to do so. These cases may include, but are not limited to, adoptions and appeals from the in juvenile division of chancery court cases.

13. Rule 6-5(b) is amended to read as follows:

(b) Procedure. In such proceedings, the procedure will conform to that prevailing in bench trials in the chancery circuit courts. Upon filing the original and seven copies of the pleading and payment of a filing fee, a summons or other process will be issued by the Clerk. The respondent's pleading must be filed within the time allowed in chancery cases as provided under by the Rules of Civil Procedure.

14. Rule 6-7 is amended by deleting subdivision (d), redesignating subdivision (e) as subdivision (d), and revising subdivision (c) to read as follows:

(c) Affirmed in part and reversed in part - Law. In cases at law, the appellant is entitled to the appeal costs if a reversal is ordered, and a substantial recovery is made. The Court may assess appeal costs according to the merits of the case.

(d) Affirmed in part and reversed in part - Chancery. In chancery cases, the Court may assess appeal costs according to the merits of the case.

(e) (d) Imposing or withholding costs. Whether the case be affirmed or reversed, the Court will impose or withhold costs in accordance with Rule 4-2(b).