Opinion
Opinion delivered May 16, 1983
1. PROCESS — SERVICE BY MAIL. — Rule 4, ARCP, permits service by mail. 2. PROCESS — ATTORNEY AD LITEM NOT REQUIRED WHERE DEFAULT SOUGHT ON BASIS OF SERVICE BY MAIL. — Rule 4 (i), ARCP, has been deleted in its entirety, removing the requirement of an attorney ad litem in cases where a default judgment is sought on the basis of service by mail. 3. PLEADING PRACTICE — ATTORNEYS OF RECORD PERMITTED TO SIGN ANSWERS TO REQUESTS FOR ADMISSIONS — CLIENT BOUND. — Rule 36, ARCP, as amended, permits Answers to Requests for Admissions to be signed by attorneys of record, but it shall be considered as on the attorney's oath and will be taken as specific authority to bind the client. 4. PLEADING PRACTICE — CHALLENGE TO SUFFICIENCY OF EVIDENCE BY MOTION FOR NEW TRIAL NO LONGER ALLOWED — CHALLENGE PERMITTED ONLY BY MOTION FOR DIRECTED VERDICT AND MOTION FOR JUDGMENT N.O.V. — Rule 50, ARCP, no longer allows the sufficiency of the evidence to be challenged by a motion for a new trial, but only by a motion for a directed verdict and motion for judgment notwithstanding the verdict. 5. COURTS — AMENDED RULES OF CIVIL PROCEDURE — CHANGES IN RULES INDICATED IN AMENDED REPORTER'S NOTES. — The amended Reporter's Notes following the amended Rules of Civil Procedure are in addition to existing Reporter's Notes, and the amended Reporter's Notes should be studied to learn all the changes made. 6. VERDICT — GENERAL VERDICT ACCOMPANIED BY ANSWERS TO INTERROGATORIES PERMITTED BY ARCP — ARK. STAT. ANN. 27-1741.3 SUPERSEDED. — Ark. Stat. Ann. 27-1741.3 (Repl. 1979) has been superseded by the amendment to the Arkansas Rules of Civil Procedure permitting general verdict accompanied by answers to interrogatories. 7. PROCESS — TIME TO PLEAD AFTER SERVICE OF PROCESS — OUT OF STATE INSURERS NO LONGER REQUIRED TO ANSWER IN LESS TIME THAN OTHER OUT OF STATE DEFENDANTS. — Ark. Stat. Ann. 66-2219 (Repl. 1980) has been superseded by Rule 12 (a), ARCP, which makes no allowance for requiring out of state insurers to answer in less time than other out of state defendants. 8. APPEAL ERROR — APPEALS FROM CRIMINAL JUDGMENTS STILL GOVERNED BY ARK. STAT. ANN. 26-1307 (REPL. 1962) — STATUTE OTHERWISE SUPERSEDED. — Ark. Stat. Ann. 26-1307 (Repl. 1962) has been superseded by the Arkansas Rules of Civil Procedure, except with regard to appeals from criminal judgments, and should be deemed valid for that purpose only.
The permanent committee we established has, after several meetings, reported and recommended certain changes in the Rules of Civil Procedure. Some changes are the result of requests from lawyers and trial judges; some as a result of referral of questions to the committee by us. Some of the changes are merely good housekeeping, such as the change to Rule 3. Others are more significant. For example, Rule 4 permits service by mail; Rule 4 (i) has been deleted in its entirety, removing the requirement of an attorney ad litem in cases where a default judgment is sought on the basis of service by mail. Rule 36, as amended, permits Answers to Requests for Admissions to be signed by attorneys of record, but it shall be considered as on the attorney's oath and will be taken as specific authority to bind the client. Rule 50 will no longer allow the sufficiency of the evidence to be challenged by a motion for a new trial, only by a motion for a directed verdict and motion for judgment notwithstanding the verdict.
The rules, as amended, are set out as an addendum to this opinion and the rules are printed in their entirety, as they read amended. These are not all the changes and the amended Reporter's Notes should be studied to learn all the changes made.
The amended Reporter's Notes reflect they are to be in addition to existing Reporter's Notes, so the changes can be readily understood.
In addition to the rules changed in the addendum, the following statutes are deemed superseded:
(1) Ark. Stat. Ann. 27-1741.3 (Repl. 1979). (Replaced by the amendment permitting general verdict accompanied by answers to interrogatories.)
(2) Ark. Stat. Ann. 66-2219 (Repl. 1980). (Superseded by Rule 12 (a) which makes no allowance for requiring out of state insurers to answer in less time than other out of state defendants.)
In our Per Curiam, dated December 18, 1978, we deemed Ark. Stat. Ann. 26-1307 (Repl. 1962) superseded. That was in error regarding appeals from criminal judgments and should be deemed valid for that purpose only. That statute reads:
Clerk or justice of peace to file transcript of judgment within thirty days. — If a party appeals from a justice of the peace judgment or a common pleas judgment or a municipal court judgment the clerk of the court or the justice of the peace of the court from which the appeal is taken must file the transcript of the judgment in the office of the circuit court clerk within thirty (30) days after the rendition of the judgment.
It is our wish and goal that these amendments will be an annual matter, excepting critical changes we must obviously make on our own from time to time.
We continue to thank our committee for its efforts, whose members continue to serve without compensation at their own expense. Also, we note that attorneys, judges, or any interested person should feel free to communicate directly with this committee about the Rules of Civil Procedure. The committee chairman is Judge Henry Wilkinson, P.O. Box 429, Forrest City, Arkansas 72335; the Secretary is Professor David Newbern, Waterman Hall, Fayetteville, Arkansas 72701.
ADDENDUM RULE 3 COMMENCEMENT OF ACTION
A civil action is commenced by filing a complaint with the clerk of the proper court who shall note thereon the date and precise time of filing.
Rule 3, Addition to Reporter's Notes to Rule 3:
1983 Amendment
The words of the first sentence of the rule were changed from "precise date and time of filing" to "date and precise time of filing."
A second sentence of the rule had provided that an action would not be deemed commenced unless service were obtained within 60 days of filing, with provisions for extension of the time limit. That sentence was deleted, and the matter of the time within which service must be obtained is addressed in Rule 4 (i).
SUMMONS
(a) Issuance: Upon the filing of the complaint, the clerk shall forthwith issue a summons and cause it to be delivered for service to a sheriff or to a person specifically appointed or authorized by law to serve it. Upon request of the plaintiff, separate or additional summons shall issue against any defendant.
(b) Form: The summons shall be styled in the name of the court and shall be dated and signed by the clerk; be under the seal of the court; contain the names of the parties; be directed to the defendant; state the name and address of the plaintiff's attorney, if any, otherwise the address of the plaintiff; and the time within which these rules require the defendant to appear, file a pleading, and defend and shall notify him that in case of his failure to do so, judgment by default may be entered against him for the relief demanded in the complaint.
(c) By Whom Served: Service of summons shall be made by a sheriff of the county where the service is to be made, by his deputy, or by some person specially appointed by the court for that purpose, or by any other person authorized by law to serve summons, or by mail as allowed in paragraph (d) (8) of this rule.
(d) Personal Service Inside the State: A copy of the summons and of the complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows
(1) Upon an individual, other than an infant or an incompetent person, by delivering a copy of the summons and complaint to him personally, or if he refuses to receive it, by offering a copy thereof to him, or by leaving a copy thereof at his dwelling house or usual place of abode with some person residing therein who is at least 14 years of age, or by delivering a copy thereof to an agent authorized by appointment or by law to receive service of summons.
(2) When the defendant is under the age of 14 years, service must be upon a parent or guardian having the care and control of the infant, or upon any other person having the care and control of the infant and with whom the infant lives. When the infant is at least 14 years of age, service shall be upon him.
(3) Where the defendant is a person judicially found to be of unsound mind, the service must be upon his duly appointed guardian. If there is no guardian, then upon the spouse or other person having the care of the incompetent, or with whom the incompetent lives. If the incompetent is confined in a public or private institution for the treatment of the mentally ill, service shall be upon the superintendent or administrator of such institution and upon the duly appointed guardian, if any.
(4) Where the defendant is confined in a state or federal penitentiary or correctional facility, service must be upon the keeper or superintendent of the institution who shall deliver a copy of the summons and complaint to the defendant. A copy of the summons and complaint shall also be delivered to the spouse of the defendant, if any, unless the court otherwise directs.
(5) Upon a domestic or foreign corporation or upon a partnership or upon any unincorporated association subject to suit under a common name, by delivering a copy of the summons and complaint to an officer, partner other than a limited partner, managing or general agent, or any agent authorized by appointment or by law to receive service of summons.
(6) Upon the United States or any officer or agency thereof, by service upon any person and in such manner as is authorized by the Federal Rules of Civil Procedure or by other federal law.
(7) Upon a state or municipal corporation or other governmental organization or agency thereof, subject to suit, by delivering a copy of the summons and complaint to the chief executive officer thereof, or other person designated by appointment or by statute to receive such service, or upon the Attorney General of the state if such service is accompanied by an affidavit of a party or his attorney that such officer or designated person is unknown or cannot be located.
(8) Service of a summons and complaint upon a defendant of any class referred to in paragraph (1) or (5) of this subdivision of this rule may be made by the plaintiff or an attorney of record for the plaintiff by any form of mail addressed to the person to be served with a return receipt requested and delivery restricted to the addressee or the agent of the addressee. Service pursuant to this paragraph shall not be the basis for the entry of a default or judgment by default unless the record contains a return receipt signed by the addressee or a returned envelope, postal document or affidavit by a postal employee reciting or showing refusal of the process by the addressee. If delivery of mailed process is refused, the plaintiff or attorney making such service, promptly upon receipt of notice of such refusal, shall mail to the defendant by first class mail a copy of the summons and complaint and a notice that despite such refusal the case will proceed and that judgment by default may be rendered against him unless he appears to defend the suit. Any such default or judgment by default may be set aside pursuant to Rule 55 (c) or Rule 60 (b) if the addressee demonstrates to the court that the return receipt was signed or delivery was refused by someone other than the addressee.
(e) Other Service: Whenever the law of this state authorizes service outside this state, the service, when reasonably calculated to give actual notice, may be made:
(1) By personal delivery in the same manner prescribed for service within this state;
(2) In any manner prescribed by the law of the place in which service is made in that place in an action in any of its courts of general jurisdiction;
(3) By any form of mail addressed to the person to be served and requiring a receipt signed by the addressee or the agent of the addressee;
(4) As directed by the foreign authority in response to a letter rogatory;
(5) As directed by the court.
(f) Service Upon Defendant Whose Identity or Whereabouts Is Unknown: Where it appears by the affidavit of a party or his attorney that after diligent inquiry, the identity or whereabouts of a defendant remains unknown, service shall be by warning order issued by the clerk and published weekly for two (2) consecutive weeks in a newspaper having a general circulation in a county wherein the action is filed and by mailing a copy of the complaint and warning order to such defendant at his last known address, if any, by any form of mail with delivery restricted to the addressee or the agent of the addressee.
(g) Return: The person serving the summons shall make proof of service to the clerk within the time during which the person served must respond to the summons. If service is made by a sheriff or his deputy, proof may be made by executing a certificate of service or return contained in the same document as the summons. If service is made by a person other than a sheriff or his deputy, he shall make affidavit thereof, and if service has been by mail, by attaching to the affidavit a return receipt, envelope, affidavit or other writing required by Rule 4 (d) (8).
(h) Amendment: At any time in its discretion and upon such terms as it deems just, the court may allow any summons or proof of service thereof to be amended unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the summons is issued.
(i) Time Limit for Service: If service of the summons is not made upon a defendant within 120 days after the filing of the complaint, the action shall be dismissed as to that defendant without prejudice upon motion or upon the court's initiative, with notice to the plaintiff at least 10 days in advance of dismissal. If a motion to extend is made within 120 days of the filing of the suit, the time for service may be extended by the court upon a showing of good cause. If service is made by mail pursuant to this rule, service shall be deemed to have been made for the purpose of this provision as of the date on which the process was accepted or refused. This paragraph shall not apply to service in a foreign country pursuant to Rule 4 (e).
Rule 4, Addition to Reporter's Notes:
1982 Amendment
Rule 4 (b) was amended to state a default judgment "may," rather than "will," be taken upon failure to answer.
1983 Amendment
Rule 4 (c) has been changed to be consistent with the new provisions for service by mail appearing in Rule 4 (d) (8).
Rule 4 (d) (2) has been amended by the substitution the word "when" for the word "where" at the beginning each sentence.
Rule 4 (d) (5) has been amended by inserting the words "Partner other than a limited partner" thus providing a means of serving a partnership heretofore missing from the rule. Deleted from the rule is the requirement of adding to the personal delivery provision service by certified mail.
Added to Rule 4 (d) (7) is the language permitting service upon a municipality by serving the Attorney General when plaintiff's counsel makes affidavit to the effect that the appropriate municipal officer is unknown or cannot be found. This will permit service on a municipality even though the office of the appropriate officer to receive service is vacant.
Rule 4 (d) (8) is added to permit service upon all defendants named in paragraphs 1 or 5 of Rule 4 (d), whether or not they are residents of Arkansas, to be served by mail.
In Rule 4 (e) (3), the words "requiring a signed receipt" have been replaced by "requiring a receipt signed by the addressee or the agent of the addressee." Postal regulations permit mail addressed with delivery restricted to the addressee to be received only by the addressee or an agent appointed according to postal regulations.
Rule 4 (f) is amended by reducing the number of publications of notice to defendants whose whereabouts or identity is unknown from four to two and by adding the words "if any" to the requirement of mailing notice to a last known address.
The first sentence of Rule 4 (g) is amended to remove the words "and in any event." The second sentence is amended to suggest putting the "return" on the "same page" as contains the summons which the Supreme Court suggested parenthetically at the end of the summons form adopted by per curiam order of February 1, 1982. In the third sentence, all words after the word "thereof" have been added to take account of the new mailing provisions of Rule 4 (d) (8). A sentence in the Rule before amendment stating that "failure to make proof of service shall not affect the validity of the service" is omitted.
The entire subdivision Rule 4 (i) has been excised. It required that default judgment not be taken in cases of service by mail unless an attorney ad litem had been appointed at least 30 days before judgment to inform the defendant of the suit. In its place, the amended Rule 4 (i) deals, in a substantially different way with the requirement, heretofore in Rule 3, that service be obtained within a specified time after the filing of a claim for relief. Ark. R. Civ. P. 4 (i) is substantially similar to F.R.C.P. 4 (j).
RULE 8
GENERAL RULES OF PLEADING
(a) Claims for Relief. A pleading which sets forth a claim for relief, whether a complaint, counterclaim, cross-claim or third party claim, shall contain (1) a statement in ordinary and concise language of facts showing that the pleader is entitled to relief, and (2) a demand for the relief to which he considers himself entitled. In claims for unliquidated damage, a demand containing no specified amount of money shall limit recovery to an amount less than required for federal court jurisdiction in diversity of citizenship cases, unless the language of the demand indicates that the recovery sought is in excess of such amount. Relief in the alternative may be demanded.
Rule 8, Addition to Reporter's Notes:
1983 Amendment
Rule 8 (a) is amended to remove the requirement of pleading grounds of jurisdiction and venue.
The original Reporter's Notes were meant to apply to the committee draft of Rule 8 (a) and not to the rule as revised by the Supreme Court. In Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981), the Supreme Court made clear its intention that Arkansas had not become a "notice pleading" jurisdiction in the image of the federal system. See, Faculty Note, 34 Ark. L. Rev. 722 (1981).
Rule 33, Addition to Reporter's Notes:
1982 Amendment
The second sentence of the second paragraph of Rule 33 (a) was added.
REQUESTS FOR ADMISSION
(a) Request for Admission. A party may serve upon any other party a written request for the admission, for purposes of the pending action, of the truth of any matters within the scope of Rule 26 (b) set forth in the request that relate to statements or opinions of fact or the application of law to fact, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party.
Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the summons and complaint upon him. If objection is made, the reasons therefor shall be stated. The party answering requests for admissions shall repeat each request immediately before the answer or objection. The answer shall specifically admit or deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; he may, subject to the provisions of Rule 37 (c), deny the matter or set forth reasons why he cannot admit or deny it.
The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirement of this rule, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pre-trial conference or at a designated time prior to trial. The provisions of Rule 37 (a) (4) apply to the award of expenses incurred in relation to the motion.
If an attorney for a party to whom requests for admission are addressed signs an answer, his signature shall be deemed his oath as to the correctness of the answer and his specific authority to bind the party on whose behalf he signs.
Rule 36, Addition to Reporter's Notes:
1982 Amendment
The fourth sentence of the second paragraph of Rule 36 (a) was added.
1983 Amendment
The words "or the application of law to fact"have been added in the first sentence of Rule 36 (a).
The second paragraph of Rule 36 (a) has been amended to permit an attorney to sign, on behalf of his client, a response to a request for admission. The last paragraph of Rule 36 (a) has been added to establish the effect of the attorney's signature.
The word "Rule" has been added to the last sentence of the third paragraph of Rule 36 (a).
RULE 49
VERDICTS AND INTERROGATORIES
(a) General Verdicts and General Verdicts with Interrogatories. The court may require a jury to return only a general verdict which pronounces generally upon all the issues, or the court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict. When the general verdict and the answers are harmonious, the appropriate judgment upon the verdict and answers shall be entered pursuant to Rule 48. When the answers are consistent with each other but one or more is inconsistent with the general verdict, judgment may be entered pursuant to Rule 58 in accordance with the answers, notwithstanding the general verdict, or the court may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, judgment shall not be entered, but the court shall return the jury for further consideration of its answers and verdict or shall order a new trial.
Rule 49, Addition to Reporter's Notes:
1983 Amendment
Rule 49 (a) is amended by adding all of the words after the first comma in the first sentence and by adding the remaining sentences. The effect is to add to the Rule provisions for a general verdict accompanied by answers to jury interrogatories.
MOTION FOR DIRECTED VERDICT AND FOR JUDGMENT NOTWITHSTANDING VERDICT
(e) Failure to Question Sufficiency of the Evidence. When there has been a trial by jury, the failure of a party to file a motion for directed verdict at the conclusion of all the evidence, or a motion for judgment notwithstanding the verdict, because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.
Rule 50, Addition to Reporter's Notes:
1983 Amendment
Rule 50 (e) is amended to omit the reference to the motion for new trial as a means of challenging the sufficiency of the evidence. Motions for directed verdict and judgment notwithstanding the verdict are used to challenge the sufficiency of the evidence.
Rule 59, Addition to Reporter's Notes:
1982 Amendment
The word "clearly" was added to Rule 59 (a) (6).
Rule 59, 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).