VII. Judgment
Rule 54. Judgments; costs.
(a) Definition; Form. "Judgment" as used in these rules includes a decree and any order from which an appeal lies. A judgment need not contain a recital of pleadings, the report of a master, or the record of prior proceedings.
(b) Judgment Upon Multiple Claims or Involving Multiple Parties.
(1) Certification of Final Judgment. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination, supported by specific factual findings, that there is no just reason for delay and upon an express direction for the entry of judgment. In the event the court so finds, it shall execute the following certificate, which shall appear immediately after the court's signature on the judgment, and which shall set forth the factual findings upon which the determination to enter the judgment as final is based:
Rule 54(b) Certificate
With respect to the issues determined by the above judgment, the court finds:
[Set forth specific factual findings.]
Upon the basis of the foregoing factual findings, the court hereby certifies, in accordance with Rule 54(b)(1), Ark. R. Civ. P., that it has determined that there is no just reason for delay of the entry of a final judgment and that the court has and does hereby direct that the judgment shall be a final judgment for all purposes.
Certified this ________ day of ________, ________.
________________________________________
Judge
(2) Lack of Certification. Absent the executed certificate required by paragraph (1) of this subdivision, any judgment, order, or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the judgment, order, or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all of the parties.
(3) Review of Finality. The finality of a judgment, order, or other form of decision containing the certificate required by paragraph (1) of this subdivision may be reviewed only pursuant to a timely notice of appeal filed in accordance with Rule 4, Ark. R. App. P. - Civ.
(4) Retention of Jurisdiction. An appeal of a judgment, order, or other form of decision containing the certificate required by paragraph (1) of this subdivision shall not affect the trial court's jurisdiction over other claims or parties.
(5) Named but Unserved Defendant. Any claim against a named but unserved defendant, including a “John Doe” defendant, is dismissed by the circuit court’s final judgment or decree.
(c) Demand for Judgment. A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.
(d) Costs.
(1) Costs shall be allowed to the prevailing party if the court so directs, unless a statute or rule makes an award mandatory.
(2) (2) Costs taxable under this rule are limited to the following: filing fees and other fees charged
by the clerk; fees for service of process and subpoenas; fees for the publication of warning
orders and other notices; fees for interpreters appointed under Rule 43; witness fees and
mileage allowances as provided in Rule 45; fees of a master appointed pursuant to Rule 53;
fees of experts appointed by the court pursuant to Rule 706 of the Arkansas Rules of
Evidence; fees of translators appointed by the court pursuant to Rule 1009 of the Arkansas
Rules of Evidence; and expenses, excluding attorney's fees, specifically authorized by statute
to be taxed as costs.
(e) Attorneys' Fees. (1) Claims for attorneys' fees and related nontaxable expenses shall be made by motion unless the substantive law governing the action provides for the recovery of such fees as an element of damages to be proved at trial.
(2) Unless otherwise provided by statute or order of the court, the motion must be filed and served no later than 14 days after entry of judgment; must specify the judgment and the statute or rule entitling the moving party to the award; and must state the amount or provide a fair estimate of the amount sought. If directed by the court, the motion, shall also disclose the terms of any agreement with respect to fees to be paid for the services for which the claim is made.
(3) On request of a party or class member, the court shall afford an opportunity for adversary submissions with respect to the motion in accordance with Rule 43(c) or Rule 78. The court may determine issues of liability for fees before receiving submissions bearing on issues of evaluation of services for which liability is imposed by the court. The court shall find the facts and state its conclusions of law, and a judgment shall be set forth in a separate document as provided in Rule 58.
(4) The court may refer issues relating to the value of services to a special master under Rule 53 without regard to the provisions of subdivision (b) thereof.
(5) The provisions of subparagraphs (1) through (4) do not apply to claims for fees and expenses as sanctions for violations of these rules.
History. Amended September 28, 1992, effective January 1, 1993; amended December 5, 1994, effective January 15, 1995; amended November 18, 1996, effective March 1, 1997; amended January 28, 1999; amended February 1, 2001
Reporter's Notes to Rule 54: - 1. With exception of the changes in Section (c), Rule 54 is otherwise identical to FRCP 54.
2. Under FRCP 54(b), the practice is to wait until all claims have been finally determined before entering judgment on any particular claim. The purpose is to prevent piecemeal appeals while portions of the litigation remain unresolved. There may be situations, however, where a particular claim should be finally determined before the entire case is concluded. Accordingly, the trial court may direct the entry of a final judgment on fewer than all claims involved upon the express determination that there is no good reason for delay. Thus, a party will always know whether a judgment in a Rule 54(b) situation is ripe for appeal. Unless this determination has been made by the trial court, there can be no appeal. RePass v. Vreeland, 357 F. 2d 801 (C.C.A. 3rd, 1966); Oak Construction Co. v. Huron Cement Co., 475 F. 2d 1220 (C.C.A. 6th, 1973).
3. Section (c) formulates the standard that except for default judgments, the form of relief and nature of the order are to be determined by what the facts establish as opposed to what counsel has pleaded. South Falls Corp. v. Rochelle, 329 F. 2d 611 (C.C.A. 5th, 1964); Molnar v. Gulfcoast Transit Co., 371 F. 2d 639 (C.C.A. 5th, 1967). With reference to default judgments, however, the first sentence of Section (c) expressly provides that relief may not be different in kind or amount from that prayed for by the claimant.
4. Section (d) contains the only changes from FRCP 54. It removes the power contained in the Federal Rule for the clerk to tax costs and leaves such power with the trial judge as under prior Arkansas law. Unless otherwise ordered by the trial judge, costs are taxed against the losing party as was the case under superseded Ark. Stat. Ann. 27-2308, 27-2310 and 27-2312 (Repl. 1962).
Addition to Reporter's Note, 1992 Amendment: - The first sentence of Rule 54(b) is amended to expressly state the trial court's obligation to make findings of fact with respect to the required determination that there is "no just reason for delay" for the entry of judgment. The amendment reflects the Supreme Court's holding to that effect in Franklin v. Osca, Inc., 308 Ark. 409, 825 S.W.2d 812 (1992) (trial court "must factually set forth reasons ... explaining why a hardship or injustice would result if an appeal is not permitted").
Addition to Reporter's Notes, 1994 Amendment: - Subdivision (d) of the rule is rewritten for purposes of clarity. No substantive change is intended. The original version of the rule was awkward and led to confusion. See, e.g., Wood v. Tyler, 317 Ark. 319, 877 S.W.2d 582 (1994).
Addition to Reporter's Notes, 1997 Amendment: - New subdivision (e) establishes a procedure for presenting claims for attorney's fees, a frequently recurring form of litigation not initially contemplated by the rules. It is based on federal Rule 54(d)(2), as amended in 1993.
Paragraph (1) makes plain that the subdivision does not apply to attorneys' fees recoverable as an element of damages, as when sought under the terms of a contract. Such damages typically are to be claimed in a pleading and may involve issues to be resolved by a jury. Paragraph (2) provides a deadline for motions for attorneys' fees - 14 days after final judgment unless the court or a statute specifies some other time. Prior law did not prescribe any specific time limit on claims for attorneys' fees. See Marsh & McLennan v. Herget, 321 Ark. 180, 900 S.W.2d 195 (1995).
One purpose of this provision is to assure that the opposing party is informed of the claim before the time for appeal has elapsed. Prompt filing affords an opportunity for the court to resolve fee disputes shortly after trial, while the services performed are freshly in mind. It also enables the court in appropriate cases to make its ruling on a fee request in time for any appellate review of a dispute over fees to proceed at the same time as review on the merits.
Filing a motion for fees under subdivision (e) does not affect the finality or appealability of a judgment. If an appeal on the merits of the case is taken, the court may rule on the claim for fees, defer its ruling on the motion, or deny the motion without prejudice and direct under paragraph (2) a new period for filing after the appeal has been resolved. A notice of appeal does not extend the time for filing a fee claim based on the initial judgment, but the court may effectively extend the period by permitting claims to be filed after resolution of the appeal. A new period for filing will automatically begin if a new judgment is entered following a reversal or remand by the appellate court or the granting of a motion under Rule 59.
The new subdivision does not require that the motion for attorneys' fees be supported at the time of filing with the evidentiary material bearing on the fees. This material must be submitted in due course, according to such schedule as the court may direct in light of the circumstances of the case. What is required is the filing of a motion sufficient to alert the adversary and the court that there is a claim for fees and the amount of such fees or a fair estimate.
If directed by the court, the moving party is required to disclose any fee agreement, including those between attorney and client, between attorneys sharing a fee to be awarded, and between adversaries made in partial settlement of a dispute where the settlement must be implemented by court action, as required by Rule 23 and similar provisions. This subdivision does not affect the practice in class action cases whereby claims for fees are presented in advance of hearings to consider approval of the proposed settlement, since the court is permitted to require submissions of fee claims in advance of the entry of judgment.
Paragraph (3) assures the parties of an opportunity to make an appropriate presentation with respect to issues involving the evaluation of legal services. In some cases, an evidentiary hearing may be needed, but this is not required in every case. The amount of time to be allowed for the preparation of submissions both in support of and in opposition to awards should be tailored to the particular case. The court is expressly authorized to make a determination of the liability for fees before receiving submissions by the parties bearing on the amount of an award. This option may be appropriate in actions in which the liability issue is doubtful and the evaluation issues are numerous and complex.
The court may order disclosure of additional information, such as that bearing on prevailing local rates or on the appropriateness of particular services for which compensation is sought. On rare occasion, the court may determine that discovery would be useful to the parties. Fee awards should be made in the form of a separate judgment under Rule 58 since such awards are subject to appellate review. To facilitate such review, paragraph (3) requires the court to set forth its findings of fact and conclusions of law. It is anticipated that this explanation will be quite brief in most cases.
Paragraph (4) authorizes the court to refer issues regarding the amount of a fee to a master under Rule 53. This authorization eliminates any controversy as to whether such references are permitted under Rule 53(b) as "matters of account and difficult computation of damages." Paragraph (5) excludes from this rule the award of fees as sanctions for violations of these rules.
Addition to Reporter's Notes, 1999 Amendment: - A new paragraph has been added to subdivision (d) defining the term "costs." A definition was deemed advisable in light of continuing confusion as to expenses that can be taxed as costs. See, e.g., Wood v. Tyler, 317 Ark. 319, 877 S.W.2d 582 (1994); Sutton v. Ryder Truck Rental, Inc., 305 Ark. 231, 807 S.W.2d 905 (1991).
Addition to Reporter's Notes, 2001 Amendment: - Rule 54(b) has caused problems for lawyers and judges alike. See generally Watkins, The Mysteries of Rule 54(b), 1996 Ark. L. Notes 117. Although subdivision (b) has not been radically altered, the revisions are intended to emphasize the steps that must be taken to secure immediate appellate review. The subdivision has been divided into four numbered paragraphs, and the most significant change is the trial court's certificate required by paragraph (1). By virtue of paragraph (2), the absence of the certificate means that a final portion of a case involving multiple parties or claims is not immediately appealable. Except for requiring a certificate and setting out its form, paragraph (1) differs little from the first sentence of the prior version of subdivision (b). Similarly, paragraph (2) largely tracks the second sentence but has been amended to refer to the certificate. Paragraphs (3) and (4) are new but do not work any change in the law.
Rule 55. Default.
(a) When Entitled. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, judgment by default may be entered by the court.
(b) Manner of Entering Judgment. The party entitled to a judgment by default shall apply to the court therefor, but no judgment by default shall be entered against an infant or incompetent person. If the party against whom judgment by default is sought has appeared in the action, he (or if appearing by representative, his representative) shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings as it deems necessary and proper and may direct a trial by jury.
(c) Setting Aside Default Judgments. The court may, upon motion, set aside a default judgment previously entered for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) the judgment is void; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; or (4) any other reason justifying relief from the operation of the judgment. The party seeking to have the judgment set aside must demonstrate a meritorious defense to the action; however, if the judgment is void, no other defense to the action need be shown.
(d) Plaintiffs, Counterclaimants, Cross-claimants. The provisions of this rule apply whether the party entitled to the judgment by default is a plaintiff, a third-party plaintiff, or party who has pleaded a cross-claim or counterclaim. In all cases a judgment by default is subject to the limitations of Rule 54(c).
(e) When Presented. A motion for default judgment may be presented to the court in vacation and at any place in the district or circuit.
(f) Remand from Federal Court. No judgment by default shall be entered against a party in an action removed to federal court and subsequently remanded if that party filed an answer or a motion permitted by Rule 12 in the federal court during removal.
History. Amended December 10, 1990, effective February 1, 1991; amended January 28, 1999; amended October 2, 2003; amended January 22, 2004
Reporter's Notes (as modified by the Court) to Rule 55: - 1. Rule 55 varies substantially from FRCP 55 and generally follows prior Arkansas law. This rule permits only the court to enter default judgment as opposed to the federal practice which permits the clerk to enter judgment in certain instances. Since court clerks in Arkansas normally provide only ministerial services, the judicial function of entering default judgments is left to the trial court itself.
2. Section (b) follows prior Arkansas law regarding the entry of a judgment against an infant or incompetent. No judgment by default may be entered against infants or incompetents under this rule whereas a default judgment may be entered under the Federal Rule where a representative has appeared. Also, where any defendant has appeared in an action, three days notice must be given to him on an application for default judgment.
3. Section (b) also follows superseded Ark. Stat. Ann. 29-402 (Repl. 1962) which permits the trial court to take evidence or refer to a jury the question of damages or any other issue which the court, in its discretion, determined should be so submitted.
4. Section (c) retains the provision of superseded Ark. Stat. Ann. 29-401 (Repl. 1962), which permits a default judgment to be set aside for excusable neglect, unavoidable casualty, or other just cause.
5. Section (e) permits a party to apply for a default judgment at any time regardless of whether the court is in vacation and also permits an applicant to move for a default judgment within or without the county where the action is pending so long as the place is inside the overall circuit or chancery district wherein the action is pending.
Addition to Reporter's Note, 1990 Amendment. - Rule 55 has been substantially amended to liberalize Arkansas practice regarding default judgments. The revised rule, which reflects a clear preference for deciding cases on the merits rather than on technicalities, is intended to avoid the harsh results that often flowed from the previous version. Because the rule represents a significant break from prior practice, many cases decided under the old rule and the statute from which it was derived will no longer be of precedential value.
Under revised Rule 55(a), the entry of a default judgment is discretionary rather than mandatory. In deciding whether to enter a default judgment, the court should take into account the factors utilized by the federal courts, including: whether the default is largely technical and the defendant is now ready to defend; whether the plaintiff has been prejudiced by the defendant's delay in responding; and whether the court would later set aside the default judgment under Rule 55(c).
The standard in amended Rule 55(c) for setting aside a default is taken from Federal Rule of Civil Procedure 60(b), which is made applicable in the default judgment context by Federal Rule 55(c), and should be interpreted in accordance with federal case law. Under former Rule 55(c), a default judgment could be set aside only upon a showing of "excusable neglect, unavoidable casualty, or other just cause." The amended rule, however, adopts a more liberal standard. Under subdivision (c)(1), for example, a default judgment may be set aside on the basis of "mistake, inadvertence, surprise, or excusable neglect." In addition, subdivision (c)(4) permits the court to set aside a default judgment "for any other reason justifying relief from the operation of the judgment." The amended rule also makes plain that a defendant seeking to set aside a default judgment must show a meritorious defense, unless the judgment is void. This requirement is consistent with federal practice, see C. Wright & A. Miller, supra 2697, and with Arkansas case law. E.g., Wilburn v. Keenan Companies, Inc., 298 Ark. 461, 768 S.W.2d 531 (1989). It should also be noted that Rule 55(c) is the exclusive basis for setting aside a default judgment. As amended in 1990, Rule 60 does not apply to default judgments.
New subdivision (f) provides a "grace period" after a case that has been removed to federal court is remanded to the state court. During this period, a default judgment cannot be entered and the defendants "may move or plead as they might have done had the case not been removed."
Addition to Reporter's Notes, 1999 Amendment: - Subdivision (a) has been amended by replacing the word "appear" with the word "plead," the terminology used in the corresponding federal rule. This revision, while minor, is intended to eliminate potential confusion stemming from the fact that appearance is also relevant under subdivision (b), which requires notice of a hearing on a motion for default judgment if the party against whom the judgment is sought "has appeared in the action ... ."
In addition, use of the word "plead" in subdivision (a) indicates that the phrase "otherwise appear" has independent meaning. Arkansas cases suggest that this phrase means the same thing as an appearance, in which case it would be a redundancy. E.g., Tapp v. Fowler, 291 Ark. 309, 724 S.W.2d 176 (1987) (defendant appeared or otherwise defended within meaning of Rule 55(a) by filing motion to dismiss and motion for summary judgment). Under the federal rule, the phrase "otherwise defend" refers to motions, which by definition are not pleadings. E.g., Bass v. Hoagland, 172 F.2d 205 (5thCir.), cert. denied, 338 U.S. 816 (1949). See also Ark. R. Civ. P. 7(a) & (b) (distinguishing pleadings and motions). Amended subdivision (a) reflects the dichotomy recognized by the federal courts.
Addition to Reporter's Notes, 2003 Amendment: - Subdivision (c)(3) of the rule has been amended by inserting a parenthetical phrase, "whether heretofore denominated intrinsic or extrinsic," after the word "fraud." Although the prior version of the rule was not by its terms limited to extrinsic fraud, the Court of Appeals has construed it in that fashion. Graves v. Stevison, 98 S.W.3d 848 (Ark. App. 2003). The amendment has the effect of overturning Graves and makes subdivision (c)(3) consistent with Rule 60(c)(4).
Addition to Reporter's Notes, 2004 Amendment: - Subdivision (f) has been rewritten to modify and clarify the practice when a case is removed to federal court and then remanded. A corresponding change has been made in Rule 12(a). These amendments are based on a Texas rule, see Tex. R. Civ. P. 237a, and a similar approach has been taken in other states as well.
Under the original version of subdivision (f), a defendant had a 10-day grace period during which file an answer or Rule 12 motion after a removed case was remanded to state court. Even if the defendant had so responded to the complaint while the case was pending in federal court after its removal, he or she was required to file another answer or motion in circuit court to avoid a default judgment. See NCS Healthcare v. W.P. Malone, Inc., 350 Ark. 520, 88 S.W.3d 852 (2002).
Amended Rule 12(a)(3) expands the grace period to 20 days, during which time a defendant who filed neither an answer nor a Rule 12 motion in the federal court must take such action in the state court. By contrast, if the defendant responded to the complaint in federal court while the case was pending there, Rule 55(f) prohibits entry of judgment by default upon remand. Consequently, the defendant need not respond again in circuit court, within the 20-day period, to avoid such a judgment. See Laguna Village, Inc. v. Laborers International Union, 672 P.2d 882 (Cal. 1983); Banks v. Allstate Indemnity Co., 757 N.E.2d 776 (Ohio App. 2001).
Because Arkansas procedural rules differ in some respects from those in the federal courts, however, Rule 55(f) does not require the circuit court to adopt the documents filed in federal court for all purposes. See Laguna Village, supra. For example, the plaintiff may move for an order from the circuit court directing the defendant to revise his or her answer to conform to the Arkansas pleading rules. In addition, the "bulk filing" of the federal pleadings and motions in the circuit court will not suffice. Rather, a party relying on a pleading or motion filed in federal court is charged with the responsibility of making the circuit court aware of the filings and must, if challenged, be able to show that the document was served on the other party. NCS Healthcare, supra; Banks, supra.
Rule 56. Summary judgment.
(a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof. Absent leave of court for good cause shown, the party must file any such motion no later than 45 days before any scheduled trial date.
(b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof. Absent leave of court for good cause shown, the party must file any such motion no later than 45 days before any scheduled trial date.
(c) Motion and Proceedings Thereon. (1) The motion shall specify the issue or issues on which summary judgment is sought and may be supported by pleadings, depositions, answers to interrogatories and admissions on file, and affidavits. The adverse party shall serve a response and supporting materials, if any, within 21 days after the motion is served. The moving party may serve a reply and supporting materials within 14 days after the response is served. For good cause shown, the court may by order reduce or enlarge the foregoing time periods. No party shall submit supplemental supporting materials after the time for serving a reply, unless the court orders otherwise. The court, on its own motion or at the request of a party, may hold a hearing on the motion not less than 7 days after the time for serving a reply. For good cause shown, the court may by order reduce the foregoing time period.
(2) The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law on the issues specifically set forth in the motion. A partial summary judgment, interlocutory in character, may be rendered on any issue in the case, including liability.
(d) Case Not Fully Adjudicated on Motion. If upon motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court, at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action, the facts so specified shall be deemed established, and the trial shall be conducted accordingly.
(e) Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
(f) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
(g) Affidavits Made in Bad Faith. Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavit caused him to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.
History. Amended February 1, 2001; amended May 25, 2006
Reporter's Notes to Rule 56: - 1. Rule 56 is identical to FRCP 56 and also identical to superseded Ark. Stat. Ann. 29-211 (Repl. 1962) which tracked the Federal Rule. This rule makes no changes in Arkansas law.
Addition to Reporter's Notes, 2001 Amendment: - Subdivision (c) of Rule 56 has been divided into two paragraphs, the first of which is new. Paragraph (1) addresses motion and hearing practice under the rule. Other states have adopted similar provisions. See, e.g., Rule 56(c), Ariz. R. Civ. P.; Rule 56(c), Ind. R. Trial P.; Rule 237(c), Iowa R. Civ. P.; Rule 74.04(c), Mo. R. Civ. P. The original version of the rule led to several problems, including last-minute submissions by the party opposing a motion for summary judgment. The rule provided that the opposing party could submit opposing affidavits at any time "prior to the day of the hearing." By contrast, paragraph (1) establishes a time frame for the parties to follow and makes plain that additional submissions are not permissible without leave of court. As under prior practice, a hearing on the motion is not mandatory in all cases. See Campbell v. Bard, 315 Ark. 366, 868 S.W.2d 62 (1993). However, the new time frame effectively precludes the court from ruling on the motion until after the parties have had an opportunity to present their evidence. Corresponding changes have been made in Rules 12(i) and 78(b) to except summary judgment motions from their requirements.
Paragraph (2) provides for partial summary judgment on any issue in the case, including liability. The term "partial summary judgment" has not heretofore been used in the rule but frequently appears in the cases. See, e.g., City of Russellville v. Banner Real Estate, 326 Ark. 673, 933 S.W.2d 803 (1996). A similar provision, limited to liability, previously appeared in subdivision (c), and summary judgment on some but not all of the issues is plainly contemplated by subdivision (d).
Addition to Reporter's Notes, 2006 Amendment: - Several parts of Rule 56 governing the timing of motions for summary judgment, the related briefing, and the hearing have been amended. These changes continue the effort to refine the Rule by making summary-judgment practice more fair, predictable, and efficient.
The amendments to subdivisions (a) and (b) eliminate a party's right to seek summary judgment at any time. Instead, absent good cause, a party must move at least 45 days before any scheduled trial date. This deadline allows for full briefing and a hearing on the motion before trial, which should promote more efficient use of judicial resources. In addition, it prevents a party from using a late motion for summary judgment as a stealth motion for continuance.
Subdivision (c)(1) has been amended to allow the circuit court to reduce the time periods for responses and replies. Under the former Rule, the court could only enlarge the time periods. Both reductions and enlargements must now be justified by a showing of good cause. Finally, the presumptive period between the due date for any reply and any hearing has been shortened from 14 to 7 days. This change accommodates the pre-trial deadline for filing the motion, while giving the non-moving party adequate time to prepare for the hearing in light of any reply. Revised subdivision (c)(1) also allows the circuit court to shorten the seven-day period for good cause, for example, scheduling difficulties.
Rule 57. Declaratory judgments.
The procedure for obtaining a declaratory judgment pursuant to Ark. Code Ann. 16-111-101 through 16-111-111 shall be in accordance with these rules, and the right to trial by jury may be demanded under the circumstances and in the manner provided in Rules 38 and 39. The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The court may order a speedy hearing of an action for a declaratory judgment and may advance it on the calendar.
History. Amended November 11, 1991, effective January 1, 1992
Reporter's Notes to Rule 57: - 1. Ark. Stat. Ann. 34-2501 [now see 16-111-103], with minor modifications, adopted the Uniform Declaratory Judgment Act. Rule 57 incorporates this statutory enactment by reference and does not effect any significant changes in Arkansas procedure.
2. Prior Arkansas law did not specifically authorize the advancement of declaratory judgment actions on the trial docket. Rule 57 recognizes, however, that some declaratory judgment actions involve matters of public interest and therefore gives the trial court discretion to advance such a case on the trial docket.
Rule 58. Entry of judgment or decree.
Subject to the provisions of Rule 54(b), upon a general or special verdict, or upon a decision by the court granting or denying the relief sought, the court may direct the prevailing party to promptly prepare and submit, for approval by the court and opposing counsel, a form of judgment or decree which shall then be entered as the judgment or decree of the court. The court may enter its own form of judgment or decree or may enter the form prepared by the prevailing party without the consent of opposing counsel. A judgment or decree shall omit or redact confidential information as provided in Rule 5(c)(2).
Every judgment or decree shall be set forth on a separate document. A
judgment or decree is effective only when so set forth and entered as provided in
Administrative Order No. 2. Entry of judgment or decree shall not be delayed for the taxing
of costs.
History. Amended December 10, 1990, effective February 1, 1991; Amended October 23, 2008, effective January 1, 2009.
Reporter's Notes to Rule 58: - 1. Rule 58 varies substantially from FRCP 58 and is designed to incorporate prior Arkansas procedure into a formal rule. Under the Federal Rule, the court clerk, in certain instances, has the responsibility of preparing the formal judgment. In all other instances, the court or the clerk prepares the judgment. This rule recognizes and continues the prior practice in this State of having the prevailing party prepare and submit the form of judgment or decree to the court for its approval.
2. Implicit in this rule is the right of opposing counsel to be afforded an opportunity to approve the form of judgment or decree. Where there is disagreement between the parties as to the form of the judgment or decree, the court should hold a hearing to consider whatever objections there might be. After such a hearing, the court may either enter its own form of judgment or decree; it may enter the form submitted by counsel if the same fairly represents the action of the court or jury or it may require counsel to revise the judgment or decree prepared by counsel. There was no specific statutory authority in Arkansas which governed prior practice in this area and such practice simply developed as an unwritten rule. This rule should have little or no effect on prior practice.
3. The federal practice of having the court prepare the judgment or order is more or less based upon the notion that delays will result if the preparation of judgments and decrees is left to counsel. The Committee did not consider this to be serious enough to warrant changing the longstanding practice in Arkansas of having counsel prepare judgments and decrees. The rule does provide, however, that if counsel is dilatory in the preparation of a judgment or decree, the court can take appropriate action to compel the preparation of the decree or it can prepare it itself.
4. This rule provides that a judgment or decree shall not be effective unless and until it is entered pursuant to Rule 79(a). Thus for appeal purposes, the date of entry or filing of the judgment or decree is the effective date, as opposed to the date of rendition. Cranna v. Long, 225 Ark. 153, 279 S.W.2d 828 (1955); Wilhelm v. McLaughlin, 228 Ark. 582, 309 S.W.2d 203 (1958).
Addition to Reporter's Note, 1990 Amendment: - This housekeeping amendment replaced the reference to Rule 79(a) in the second paragraph with a reference to Administrative Order No. 2, which appears in the appendix to the Rules of Civil Procedure. Rule 79 was abolished in 1987 when the administrative order was adopted.
Addition to Reporter's Notes (1999): - The second paragraph of this rule provides that a judgment or decree "is effective only when ... set forth [on a separate document] and entered as provided in Administrative Order No. 2." As amended in 1999, Administrative Order No. 2(b) provides that a judgment, decree or order is "entered" when stamped or otherwise marked by the clerk with the time and date and the word "filed," irrespective of when it is recorded in the judgment book. When the clerk's office is not open for business, and upon an express finding of extraordinary circumstances, an order is effective immediately when signed by the judge. Such order must be filed with the clerk on the next day on which the clerk's office is open, and this filing date controls all appeal-related deadlines.
The 1999 amendment to Administrative Order No. 2(b) also requires any clerk's office with a facsimile machine to "accept facsimile transmission of a judgment, decree or order filed in such manner at the direction of the court." The faxed judgment, decree or order is effective when entered by the clerk. To ensure the permanency of official court records, the original judgment, decree or order must be substituted for the facsimile copy within 14 days of transmission, but this step does not have any bearing on the effectiveness of the faxed document or the time for taking an appeal.
Addition to Reporter’s Note, 2008 Amendment: The rule has been amended to reflect Administrative Order 19’s requirement that any necessary and relevant confidential information in a case record—a category that includes judgments and decrees—must be redacted. See Addition to Reporter’s Notes, 2008 Amendment to Rule of Civil Procedure 5.
Rule 59. New trials.
(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the claim on the application of the party aggrieved, for any of the following grounds materially affecting the substantial rights of such party: (1) any irregularity in the proceedings or any order of court or abuse of discretion by which the party was prevented from having a fair trial; (2) misconduct of the jury or prevailing party; (3) accident or surprise which ordinary prudence could not have prevented; (4) excessive damages appearing to have been given under the influence of passion or prejudice; (5) error in the assessment of the amount of recovery, whether too large or too small; (6) the verdict or decision is clearly contrary to the preponderance of the evidence or is contrary to the law; (7) newly discovered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial; (8) error of law occurring at the trial and objected to by the party making the application. On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.
(b) Time for Motion. A motion for a new trial shall be filed not later than 10 days after the entry of judgment. A motion made before entry of judgment shall become effective and be treated as filed on the day after the judgment is entered. If the court neither grants nor denies the motion within 30 days of the date on which it is filed or treated as filed, it shall be deemed denied as of the 30th day.
(c) Form of Motion. The motion must be in writing setting forth in separate paragraphs the grounds or assignments of error relied upon for a new trial. The grounds mentioned in section (a)(2), (3) and (7) of this rule must be supported by affidavits showing their truth and may be controverted in the same manner.
(d) Time for Filing Affidavits. When a motion for a new trial is based upon affidavits, they shall be filed with the motion. The opposing party shall have 10 days after service within which to file opposing affidavits which period may be extended for an additional period not exceeding 20 days either by the court for good cause shown or by the parties by written stipulation. The court may permit reply affidavits.
(e) On Initiative of Court. Not later than 10 days after entry of judgment, the court on its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party. After giving the parties notice and an opportunity to be heard on the matter, the court may grant a motion for a new trial, timely filed, for a reason not stated in the motion. In either case, the court shall specify in the order the ground therefor.
(f) Motion for New Trial Not Necessary for Appeal. A party who has preserved for appeal an error that could be the basis for granting a new trial is not required to make a motion for new trial as a prerequisite for appellate review of that issue.
History. Amended May 17, 1982; amended May 16, 1983; amended July 9, 1984, effective September 1, 1984; subsection (a) amended December 5, 1994, effective January 15, 1995; amended January 28, 1999; amended March 13, 2003
Reporter's Notes to Rule 59: - 1. Rule 59 represents a combination of the provisions found in FRCP 59 and features of prior Arkansas law as codified in superseded Ark. Stat. Ann. 27-1901, et seq. (Repl. 1962). This rule will apply to both legal and equitable causes and in equity court replaces the bill of review which is abolished in Rule 60.
2. FRCP 59 does not define the grounds upon which new trials may be granted. Instead, it simply incorporates by reference those grounds traditionally recognized by the federal courts. Rather than refer to a body of law by reference, Section (a) of this rule specifies the grounds upon which a new trial may be granted. These grounds are lifted from superseded Ark. Stat. Ann. 27-1901 (Repl. 1962). Thus, no changes are effected in Arkansas law by Section (a). The final sentence of FRCP 59(a) is made a part of this rule so as to permit the granting of similar relief in cases tried without a jury, whether the claims be legal or equitable. This is implicit in superseded Ark. Stat. Ann. 27-1901 (Repl. 1962), but it is expressly made a part of Rule 59.
3. Section (b) marks a significant departure from prior Arkansas practice. Under this section, a motion for new trial must be filed within ten days after entry or filing of the judgment. Under prior Arkansas law, as codified in superseded Ark. Stat. Ann. 27-1904 (Repl. 1962), such a motion had to be filed within fifteen days following the verdict or decision, regardless of when the formal judgment or decree was actually filed. Henderson v. Skerczak, 247 Ark. 446, 446 S.W.2d 243 (1969), Peek v. Meadors, 255 Ark. 347, 500 S.W.2d 333 (1973).
4. Section (c) is not found in FRCP 59, but is practically identical to superseded Ark. Stat. Ann. 27-1905 (Repl. 1962). The purpose of this provision is to insure that a motion based upon the grounds set forth in Section (a)(2) and (a)(3) and (a)(7), is supported by affidavit in order to avoid (prevent) groundless or baseless motions from being filed.
5. Section (d) is taken from Section (c) of FRCP 59. The word "served" has been changed to "filed" in keeping with the overall scheme of these rules.
6. Section (e) is identical to Section (d) of FRCP 59. There was no specific provision under prior Arkansas law which gave the trial court the authority to order a new trial on its own initiative although the court may have had the inherent power to do so.
7. Section (f) is identical to FRCP 59(e). There was no comparable provision under prior Arkansas law and its effect is to place motions under Rule 59(f) on the same footing, timewise, with motions for new trials.
Addition to Reporter's Notes, 1982 Amendment: - The word "clearly" was added to Rule 59(a)(6).
Addition to Reporter's Notes, 1983 Amendment: - Rule 59(f) is deleted. The time within which a trial court may modify, set aside or vacate judgment appears in Rule 60(b).
Addition to Reporter's Notes, 1984 Amendments: - Rule 59(f) is added to reinstate the principle of superseded Ark. Stat. Ann. 27-2127.5 (Repl. 1962). The matter of the necessity of a motion for new trial to preserve error for appeal had not been addressed in these rules.
Addition to Reporter's Notes, 1994 Amendment: - The first sentence of subdivision (a) is amended by substituting the word "claim" for the word "issues." The amendment is intended to reflect case law prohibiting a partial new trial on the issue of damages (or the issue of liability), on the theory that a jury's verdict cannot be divided by the court. E.g., Smith v. Walt Bennett Ford, 314 Ark. 591, 864 S.W.2d 817 (1993). As amended, subdivision (a) does not allow a partial new trial limited to a given issue. However, it expressly authorizes, in cases involving multiple parties or multiple claims, a partial new trial with respect to a single party or single claim.
Addition to Reporter's Notes, 1999 Amendment: - Subdivision (b) has to amended by adding a new second sentence that effectively overturns Benedict v. National Bank of Commerce, 329 Ark. 590, 951 S.W.2d 562 (1997), which held that a motion for new trial filed before entry of judgment is ineffective. As amended, the rule reflects the practice in the federal courts. The new third sentence provides that a motion for new trial not ruled on by the court within 30 days of its filing (or within 30 days of the date it is treated as filed) is "deemed denied as of the 30th day." This provision also appears in Rule 4(b)(1) of the Rules of Appellate Procedure-Civil but was added here as a reminder to counsel.
In addition, the title of the rule has been modified by striking the words "amendment of judgments." A provision in the original version of the rule dealing with this issue was deleted in 1983. See Addition to Reporter's Notes, 1983 Amendment.
Addition to Reporter's Notes, 2003 Amendment: - Subdivision (f) has been rewritten to reflect the holding in Stacks v. Jones, 323 Ark. 643, 916 S.W.2d 120 (1996).
Rule 60. Relief from judgment, decree or order.
(a) Ninety-Day Limitation. To correct errors or mistakes or to prevent the miscarriage of justice, the court may modify or vacate a judgment, order or decree on motion of the court or any party, with prior notice to all parties, within ninety days of its having been filed with the clerk.
(b) Exception; Clerical Errors. Notwithstanding subdivision (a) of this rule, the court may at any time, with prior notice to all parties, correct clerical mistakes in judgments, decrees, orders, or other parts of the record and errors therein arising from oversight or omission. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court and thereafter while the appeal is pending may be so corrected with leave of the appellate court.
(c) Grounds for Setting Aside Judgment, Other Than Default Judgment, After Ninety Days. The court in which a judgment, other than a default judgment [which may be set aside in accordance with Rule 55(c)] has been rendered or order made shall have the power, after the expiration of ninety (90) days of the filing of said judgment with the clerk of the court, to vacate or modify such judgment or order:
(1) By granting a new trial where the grounds therefor were discovered after the expiration of ninety (90) days after the filing of the judgment, or, where the ground is newly discovered evidence which the moving party could not have discovered in time to file a motion under Rule 59(b), upon a motion for new trial filed with the clerk of the court not later than one year after discovery of the grounds or one year after the judgment was filed with the clerk of the court, whichever is the earlier; provided, notice of said motion has been served within the time limitations for filing the motion.
(2) By a new trial granted in proceedings against defendants constructively summoned, and who did not appear, upon a motion filed within two years after the filing of the judgment with the clerk of the court, or within one year after a certified copy of the judgment has been served upon the defendant, whichever shall be the earlier, upon security for costs being given; provided notice of the filing of said motion has been served upon the adverse party within the time limitations for filing the motion.
(3) For misprisions of the clerk.
(4) For misrepresentation or fraud (whether heretofore denominated intrinsic or extrinsic) by an adverse party.
(5) For erroneous proceedings against an infant or person of unsound mind where the condition of such defendant does not appear in the record, nor the error in the proceedings.
(6) For the death of one of the parties before the judgment in the action.
(7) For errors in a judgment shown by an infant within twelve (12) months after reaching the age of eighteen (18) years, upon a showing of cause.
(d) Valid Defense to Be Shown. No judgment against a defendant, unless it was rendered before the action stood for trial, shall be set aside under this rule unless the defendant in his motion asserts a valid defense to the action and, upon hearing, makes a prima facie showing of such defense.
(e) Valid Cause of Action to Be Shown. No judgment, unless it was rendered before the action stood for trial, shall be set aside on the motion of a plaintiff unless the plaintiff makes a prima facie showing of a valid cause of action.
(f) Defendant Constructively Summoned - Restoration of Property. When a judgment is set aside on the motion of a defendant constructively summoned, the court may order the plaintiff in the action to restore to the defendant any money of the defendant paid under the judgment or any property of the defendant obtained by the plaintiff under it and yet remaining in his possession and pay to the defendant the value of any property which may have been taken under an attachment in the action or under the judgment and not restored. The title of purchasers in good faith to any property sold under an attachment or judgment shall not be affected by a new trial under subsection (c)(2) of this rule, except the title of property obtained by the plaintiff and not bought of him in good faith by others.
(g) Exception for Divorce Decrees. No judgment granting a divorce, except as it relates to alimony, shall be set aside under subsection (c)(2) of this rule.
(h) Premature Judgment. Rendering judgment prior to the time fixed for filing an answer shall be deemed a clerical misprision. No misprision of the clerk shall be ground for appeal until relief has been sought in the circuit court and action taken there.
(i) Motion to Vacate or Modify May Be Heard First. The circuit court may first try and decide upon the grounds for vacating or modifying a judgment before trying or deciding the validity of the defense or cause of action.
(j) Injunction Pendente Lite. The party seeking to vacate or modify a judgment may obtain an injunction suspending proceedings, on the whole or in part, upon showing by affidavit or exhibition of the record that it is probable that he is entitled to have such judgment, decree or order vacated or modified; however, such a showing shall not be required if the judgment, decree or order was rendered before the action stood for trial.
(k) Independent Action to Set Aside Judgment - Writs Abolished. A motion under this rule does not affect the finality of a judgment or decree or suspend its operation, except as provided herein. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment who was not actually personally served with process or to set aside a judgment or decree for fraud upon the court. Writs of coram nobis in civil cases, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment or decree shall be by motion as prescribed in these rules or by an independent action.
History. Amended July 9, 1984, effective September 1, 1984; amended December 10, 1990, effective February 1, 1991; amended January 27, 2000; amended May 24, 2001, effective July 1, 2001
Reporter's Notes to Rule 60: - 1. This rule is substantially different from FRCP 60. Its purpose is to substantially retain existing Arkansas law on the subject. The Court feels that the adoption of FRCP 60 would detract from the stability of final judgments and that the changes which would be made in Arkansas law are highly undesirable. The distinction between intrinsic and extrinsic fraud as a basis for relief from a judgment is considered an important and desirable one.
2. This rule would make the same provision for relatively unlimited control of judgments by circuit courts as that made for chancery courts by Ark. Stat. Ann. 22-406.1 et seq. (Repl. 1962). This makes for uniformity not only as between the two courts but also as among judgments in a particular court, regardless of the time elapsed between entry of the judgment and expiration of a term of court.
3. Under prior Arkansas law, the trial court lost jurisdiction to set aside or modify a judgment after term time except on those grounds specified in superseded Ark. Stat. Ann. 29-506 (Repl. 1962). Davis v. McBride, 247 Ark. 895, 448 S.W.2d 37 (1969); Hardin v. Hardin, 237 Ark. 237, 372 S.W.2d 260 (1973). Under prior Arkansas law, the trial court had the power to correct, in certain instances, its judgment even after an appeal had been docketed in the Arkansas Supreme Court. Superseded Ark. Stat. Ann. 27-2129.1 (Repl. 1962). Under this rule, however, once the appeal is docketed, a change can be made only with leave of the Supreme Court.
4. In subsection (c)(1) the one year limitation follows the recommendation of the Committee in its proposed Rule 60.
5. Subsection (k) follows Section (b) of FRCP 60 by permitting a court to entertain an independent action to relieve a party from a judgment. Bankers Mortgage Co. v. United States, 423 F. 2d 73 (C.C.A. 5th, 1970), cert. den., 90 S.Ct. 2242. Arkansas has previously recognized the power of an equity court to review a judgment from a court of law, although such power is severely limited. Cotton v. Hamblin, 233 Ark. 65, 342 S.W.2d 478 (1961).
6. Section (k) provides for the abolition of writs of error and bills of review. While these have not been common under prior Arkansas law, they have been permitted under Article 7, Section 4, of the Arkansas Constitution. However, any relief which could be granted by a court of equity under a bill of review can also be afforded under this rule; hence, it should have little effect on Arkansas practice and procedure.
Additions to Reporter's Notes, 1984 Amendments: - Rule 60(b) is modified to remove the references to the law prior to January 1, 1970, and to replace it with language from cases describing the broad power of a court to modify or set aside its judgment during the term of court in which it was entered. See, Karoley v. A.R. & T. Electronics, 235 Ark. 609, 363 S.W.2d 120 (1962), and the cases cited in that opinion.
Rule 60(c)(5) is amended to remove "married women" from the classes of persons to which the Rule applies.
The caption of the Rule is amended to include "Modification."
Addition to Reporter's Note, 1990 Amendment. - Rule 60 has been amended to eliminate any overlap with Rule 55. Under former subdivision (c)(7) of Rule 60, a trial court could set aside a judgment "[f]or unavoidable casualty or misfortune preventing the party from appearing or defending." The 1990 amendment deletes this provision, which has been cited in default judgment cases. E.g., McGee v. Wilson, 275 Ark. 466, 631 S.W.2d 292 (1982). Moreover, the new opening language of paragraph (c) specifically states that Rule 60 does not apply to default judgments, "which may be set aside in accordance with Rule 55(c)."
Addition to Reporter's Notes, 2000 Amendment: - Subdivisions (a) and (b) of the rule have been revised in response to case law. In addition, subdivision (c) has been amended by changing the cross-reference in paragraph (1) from Rule 59(c) to Rule 59(b), and by revising paragraph (4).
As originally adopted, subdivision (a) provided that the trial court could "at any time" correct clerical mistakes and errors "arising from oversight or omission." Under subdivision (b), the trial court could "correct any error or mistake or to prevent the miscarriage of justice" by modifying or setting aside a judgment, decree or order within 90 days of its having been filed with the clerk. Despite this apparent dichotomy, the Supreme Court held that the 90-day limitation in subdivision (b) also applied to subdivision (a). See, e.g., Ross v. Southern Farm Bureau Cas. Ins. Co., 333 Ark. 227, 968 S.W.2d 622 (1998); Phillips v. Jacobs, 305 Ark. 365, 807 S.W.2d 923 (1991). The Supreme Court subsequently held in Lord v. Mazzanti, 335 Ark 25, 2 S.W.3d 76 (1999), that "clerical mistakes" under subdivision (a) can be corrected at any time, and overrruled any language to the contrary in Phillips and Ross.
This amendment is consistent with Lord v. Mazzanti, supra. As amended, subdivision (a) is a slightly modified version of former subdivision (b). It states the general rule that the court may, with prior notice to all parties, modify a judgment, decree or order within 90 days of its filing with the clerk to "correct errors or mistakes or to prevent the miscarriage of justice." Revised subdivision (b) expressly states an exception for "clerical mistakes" and errors "arising from oversight or omission," which may be corrected at any time with prior notice to all parties.
Amended paragraph (4) of subdivision (c) allows a judgment, decree or order to be modified or set aside "[f]or misrepresentation or fraud (whether heretofore denominated intrinsic or extrinsic) by an adverse party." This language, taken in part from Rule 60(b)(3) of the Federal Rules of Civil Procedure, eliminates the distinction between intrinsic and extrinsic fraud, a distinction that has been described as "shadowy, uncertain, and somewhat arbitrary." Howard v. Scott, 125 S.W. 1158, 1166 (Mo. 1909). See also C. Wright & A. Miller, Federal Practice & Procedure 2861 (1995) (distinction is "very troublesome and unsound").
Under the prior rule, only extrinsic fraud was a ground for setting aside or modifying a judgment. This has resulted in unfairness. See, e.g., Ward v. McCord, 61 Ark. App. 271, 966 S.W.2d 925 (1998) (husband's concealment of bank account from wife during negotiations leading to property settlement in divorce action was not extrinsic fraud); Office of Child Support Enforcement v. Mitchell, 61 Ark. App. 54, 964 S.W.2d 218 (1998) (mother's failure to mention in affidavit filed in paternity case that a man other than defendant could have been the father of her child was not extrinsic fraud); Office of Child Support Enforcement v. Offutt, 61 Ark. App. 207, 966 S.W.2d 275 (1998) (conduct of attorney in preparing precedent containing findings not made by the court and mailing it to the judge with a letter requesting that he sign the order if no objection was received from opposing counsel did not constitute extrinsic fraud).
Addition to Reporter's Notes, 2001 Amendment: - The references to "trial court" in subdivisions (h) and (i) have 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.
Rule 61. Harmless error.
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
Reporter's Notes to Rule 61: - 1. Rule 61 is identical to FRCP 61. The philosophy behind this rule is that proceedings should not be disturbed because of a technical error which resulted in no prejudice. Gutshall v. Wood, 123 F.2d 174 (C.A., 1942). While there is no corollary under prior Arkansas law, this rule does appear to express the Arkansas attitude towards harmless error.
2. The first paragraph of superseded Ark. Stat. Ann. 27-1901 (Repl. 1962) relative to new trials provided that a verdict or decision could be vacated and a new trial granted for the grounds stated therein which materially affected the substantial rights of the party. Implicit in that statute was the requirement that the error be prejudicial in order to justify the granting of a new trial. Also, Rule 103(a) of the Federal Rules of Evidence and of the Uniform Rules of Evidence recognizes that error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected. This is simply another way of saying that the error must be other than harmless to afford any basis for complaint.
3. While this rule governs practice in trial courts, the appellate courts also should follow the same test. Box v. Swindle, 306 F.2d 882 (C.C.A. 5th, 1962); Keaton v. Atchison T. & S.F. Ry., 321 F. 2d 317 (C.C.A. 7th, 1963). Ultimately, the determination of whether an error is prejudicial rests with the appellate court. The Arkansas Supreme Court has consistently held that harmless error affords no basis for complaint and this rule simply confirms the settled rule of law in this State.
Rule 62. Stay of proceedings to enforce a judgment.
(a) Automatic Stay; Exceptions. Except as otherwise ordered by the court, no execution or enforcement proceedings shall issue on any judgment or decree until after the expiration of ten (10) days from the entry thereof. Unless otherwise ordered by the court, an interlocutory or final judgment in an action for an injunction or in a receivership action shall not be stayed during the period after its entry and until an appeal is taken or during the pendency of an appeal. The provisions of subdivision (c) of this rule govern the suspending, modifying, restoring or granting of an injunction during the pendency of an appeal.
(b) Stay on Motion for New Trial or for Judgment. In its discretion and on such conditions for the security of the adverse party as are proper, the court may stay the execution or any proceedings to enforce a judgment pending the disposition of a motion for a new trial or to alter or amend a judgment made pursuant to Rule 59, or of a motion for relief from a judgment or order made pursuant to Rule 60, or of a motion for judgment in accordance with a motion for a directed verdict made pursuant to Rule 50, or of a motion for amendment to the findings or for additional findings made pursuant to Rule 52(b).
(c) Injunction Pending Appeal. When an appeal is taken from an interlocutory or final judgment granting, dissolving or denying an injunction, the court from which the appeal is taken, in its discretion, may suspend, modify, restore or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.
(d) Stay Upon Appeal. When an appeal is taken, the appellant by giving a supersedeas bond may obtain a stay subject to the exceptions contained in subdivision (a) of this rule, and except as to child custody orders and similar orders. The bond may be given at or after the time of filing the notice of appeal. After an appeal has been docketed in the appellate court, application for leave to file a bond may be made only in such court.
(e) Stay in Favor of State or an Agency Thereof. When an appeal is taken by the State of Arkansas or an officer or agency thereof and the operation or enforcement of the judgment is stayed, no bond, obligation or other security shall be required from the appellant.
(f) Power of Appellate Court Not Limited. The provisions of this rule do not limit any power of the appellate court to stay proceedings during the pendency of an appeal, or to suspend, modify, restore or grant an injunction during the pendency of any appeal or to make any order appropriate to preserve the status quo or the effectiveness of the judgment subsequently to be entered.
(g) Stay of Judgment as to Multiple Claims or Parties. When a court has ordered a final judgment under the conditions stated in Rule 54(b), the court may stay enforcement of that judgment until the entering of a subsequent judgment or judgments and may prescribe such conditions as are necessary to secure the benefit thereof to the party in whose favor the judgment is entered.
History. Amended November 11, 1991, effective January 1, 1992
Reporter's Notes to Rule 62: - 1. With the exception of minor wording changes and the omission of certain provisions which are inapplicable to state practice, Rule 62 is substantially the same as FRCP 62.
2. Section (a) omits the reference in FRCP 62 to patent disputes and combines the language of superseded Ark. Stat. Ann. 30-102 (Repl. 1962) and that of the Federal Rule. This rule does not change prior Arkansas practice concerning the enforcement of judgments. Under both Arkansas and federal law, execution or other enforcement of a judgment or decree is automatically stayed for a ten day period unless specifically directed by the trial court. Whetstone v. Atlas Drilling & Production Co., 241 Ark. 387, 409 S.W.2d 322 (1966) and FDIC v. Steinman, 53 F. Supp. 644 (D.C. Pa., 1943). Under the Federal Rule, the ten day stay is more or less mandatory and the trial court is given little discretion to waive such period. The Committee recognized that there are situations, however, where execution or other enforcement should not be delayed; therefore, Rule 62 was drafted so as to retain the trial court's discretion to waive this ten day period.
3. Section (a) does work one minor change in prior Arkansas practice. Under superseded Ark. Stat. Ann. 30-102 (Repl. 1962), no action could be taken within ten days after rendition of the judgment unless otherwise ordered by the court. Such language permitted the execution on a judgment even before it was actually filed. Under Rule 62, no action can be taken until ten days after the entry or filing of the judgment or decree unless ordered by the court.
4. The portion of Section (a) dealing with stays and appeals in cases involving interlocutory orders and injunctions is substantially the same as superseded Ark. Stat. Ann. 27-2102 (Repl. 1962). Under that statute and the Federal Rule, such proceedings are not stayed unless otherwise ordered by the court.
5. Section (b) is identical to its counterpart in FRCP 62. There was no specific provision under prior Arkansas law to stay an execution or other enforcement proceedings during the pendency of post-judgment motions and it was doubtful that a trial court had the power to stay execution beyond the ten-day period normally allowed. Taylor v. O'Kane, 185 Ark. 782, 49 S.W.2d 400 (1932). Thus, this rule confers upon the trial court power which it did not apparently have under prior law.
6. With the exception of the omission of the last sentence in FRCP 62(c), Rule 62 is otherwise identical to the former. The omitted provision simply has no applicability to state practice. There was no specific authority under prior Arkansas law which permitted an injunction during an appeal and this rule does add such authority. This authority is discretionary, however, and generally requires a finding that the applicant is likely to succeed on appeal; that irreparable harm will result unless it is granted and that no substantial harm is likely to result to the other party. Belcher v. Birmingham Trust Nat. Bank, 395 F.2d 685 (C.C.A. 5th, 1968), Bauer v. McLaren, 332 F. Supp. 723 (D.C. Iowa, 1971).
7. Section (d) is a modified version of FRCP 62(d) and basically follows prior Arkansas law as codified in superseded Ark. Stat. Ann. 27-2119, et seq. (Repl. 1962) and should not work any changes in Arkansas practice and procedure.
8. Section (e) is revised from the Federal Rule so as to make it compatible with state practice. This section follows prior Arkansas law which did not require the posting of a bond or other security in order to stay proceedings pending an appeal prosecuted by the State of Arkansas. Superseded Ark. Stat. Ann. 34-215 (Repl. 1962). It is, however, incumbent upon the State, or its officers or agents, to cause the trial court to specifically stay the proceedings even though security is not required.
Rule 63. Disability of a judge.
If for any reason, including resignation or removal from office, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after a verdict is returned or findings of fact and conclusions of law are announced or filed, then any other judge regularly sitting in or assigned to the court in which the action was tried may perform those duties; but, if such judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may, in his discretion, grant a new trial.
Reporter's Notes to Rule 63: - 1. Rule 63 is substantially identical to FRCP 63. The applicability of this rule is limited to those situations where a trial judge, for any reason, becomes unable to perform his duties under these rules during the period after a decision or verdict has been given and before the appellate court obtains jurisdiction. Although this rule gives the succeeding judge the authority to grant a new trial if he cannot satisfactorily perform the duties required of him, the decisions previously made by the former judge and the jury are presumed to be correct and the burden is on the moving party to show to the contrary. Miller v. Penn R. Co., 161 F. Supp. 633 (D.C., 1958).
2. Because of its limited applicability, FRCP 63 has caused little or no controversy since its adoption and it has never been amended. Accordingly, it is not believed that Rule 63 will have any significant impact upon Arkansas practice and procedure.