Opinion
Opinion Delivered March 13, 2003
On December 5, 2002, we published for comment the Arkansas Supreme Court Committee on Civil Practice's proposals for changes in the Arkansas Rules of Civil Procedure, Inferior Court Rules, Rules of Appellate Procedure-Civil, Rules of Appellate Procedure-Criminal, Administrative Orders, and Rules of the Supreme Court and Court of Appeals. We thank everyone who reviewed the proposals and submitted comments.
As a result of certain comments received in response to the Committee's proposals, we refer the proposed changes to the following rules back to the Civil Practice Committee for further consideration: Ark.R.Civ.P. 17(c), Ark. R.App.P. — Civ. 9, Ark. R.App.P. — Crim. 17, and Ark. S.Ct. R. 1-8, 4-3(k), 4-4(f). We will defer action on these proposals, as well as Inferior Ct. R. 9, pending receipt of the Committee's final recommendations. The remaining proposals will be implemented.
We encourage all judges and lawyers to review this per curiam order to familiarize themselves with the changes to the rules. We again express our gratitude to the members of our Civil Practice Committee for the Committee's diligence in performing the important task of keeping our civil rules current, efficient, and fair.
We adopt the following amendments to be effective immediately and republish the rules and Reporter's Notes as set out below.
A. Rules of Civil Procedure
1. Subdivision (b) of Rule 3 and the accompanying Reporter's Notes are amended as follows:
Rule 3. Commencement of action — "Clerk" defined.
(b) The term "clerk of the court" as used in these Rules means the circuit clerk and, with respect to probate matters, any county clerk who serves as ex officio clerk of the probate division of the circuit court pursuant to Ark. Code Ann. § 14-14-502(b)(2)(B).
Addition to Reporter's Notes, 2003 Amendment: The statutory reference in subdivision (b) has been corrected.
2. Subdivision (d)(4) of Rule 4 and the accompanying Reporter's Notes are amended as follows:
Rule 4. Summons.
(d) Personal Service Inside the State.
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(4) Where the defendant is incarcerated in any jail, penitentiary, or other correctional facility in this state, 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 sent to the defendant by first class mail and marked as "legal mail" and, unless the court otherwise directs, to the defendant's spouse, if any.
Addition to Reporter's Notes, 2003 Amendment: Subdivision (d)(4) has been revised by replacing the phrase "confined in a state or federal penitentiary or correctional facility" with "incarcerated in any jail, penitentiary, or other correctional facility in this state." This change makes the terminology consistent with that used in Rule 12(a), as amended in 2003.
3. Subdivisions (a) and (d) of Rule 6 and the accompanying Reporter's Notes are amended as follows:
Rule 6. Time.
(a) Computation. In computing any period of time prescribed or allowed by these rules, by order of the Court or by any applicable statute, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday, legal holiday, or other day when the clerk's office is closed, in which event the period runs until the end of the next day that the clerk's office is open. When the period of time prescribed or allowed is less than fourteen (14) days, intermediate Saturdays, Sundays, or legal holidays shall be excluded in the computation. As used in this rule and Rule 77(c), "legal holiday" means those days designated as a holiday by the President or Congress of the United States or designated by the laws of this State.
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(d) Additional Time After Service by Mail or Commercial Delivery Company. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail or commercial delivery company, three (3) days shall be added to the prescribed period. Provided, however, that this subdivision shall not extend the time in which the defendant must file an answer or preanswer motion when service of the summons and complaint is by mail or commercial delivery company in accordance with Rule 4.
Addition to Reporter's Notes, 2003 Amendment: Subdivision (a) has been amended to address the situation in which the clerk's office is closed for reasons other than weekends and legal holidays. The amendment incorporates the Supreme Court's holding in Honeycutt v. Fanning, 349 Ark. 324, 78 S.W.3d 96 (2002), and makes Rule 6(a) consistent with, though not identical to, its federal counterpart.
Subdivision (d) of the rule has been rewritten to include commercial delivery companies. The amended subdivision applies when service of papers, other than the summons and complaint, is by mail or by commercial delivery company.
4. Subdivisions (a) and (h)(2) of Rule 12 and the accompanying Reporter's Notes are amended as follows: Rule 12. Defenses and objections — When and how presented — By pleading or motion — Motion for judgment on the pleadings.
(a) When Presented. A defendant shall file his answer within twenty (20) days after the service of summons and complaint upon him, except when service is upon a non-resident of this state or a person incarcerated in any jail, penitentiary, or other correctional facility in this state, in which event he shall have thirty (30) days after service of summons and complaint upon him within which to file his answer. Where service is made under Rule 4(f), the defendant shall have thirty (30) days from the date of the first publication of the warning order within which to file his answer. A party served with a pleading stating a cross-claim or counterclaim against him shall file his answer or reply thereto within twenty (20) days after service upon him. The court may, upon motion of a party, extend the time for filing any responsive pleading. The filing of a motion permitted under this rule alters these periods of time as follows, unless a different time is fixed by order of the court: (1) If the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be filed within ten (10) days after notice of the court's action; (2) if the court grants a motion for a more definite statement, the responsive pleading shall be filed within ten (10) days after service of the more definite statement. Provided, that nothing herein contained shall prevent a defendant summoned in accordance with Rule 4(f) from being allowed, at any time before judgment, to appear and defend the action; and, upon a substantial defense being disclosed, from being allowed a reasonable time to prepare for trial.
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(h) Waiver or Preservation of Certain Defenses.
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(2) A defense of failure to state facts upon which relief can be granted, a defense of failure to join a party indispensable under Rule 19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits. The defense of lack of jurisdiction over the subject matter is never waived and may be raised at any time.
Addition to Reporter's Notes, 2003 Amendment: Under revised subdivision (a), a person "incarcerated in any jail, penitentiary, or other correctional facility in this state" has 30 days in which to respond to a complaint. This additional time helps ensure that such a defendant has an opportunity to obtain counsel and to be heard in the action.
Subdivision (h)(2) has been amended to provide that the defense of lack of subject matter jurisdiction is never waived and may be asserted at any time. The new sentence simply restates settled law.
5. Subdivision (a) of Rule 30 and the accompanying Reporter's Notes are amended as follows:
Rule 30. Depositions upon oral examination.
(a) When Depositions May Be Taken. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of 30 days after service of the summons and complaint upon any defendant or service made under Rule 4(e), except that leave is not required (1) if a defendant has served a notice of taking deposition or otherwise sought discovery, or (2) if special notice is given as provided in subdivision (b)(2) of this rule. The attendance of a witness may be compelled by subpoena as provided in Rule 45, but a subpoena is not necessary if the witness is a party or a person designated under subdivision (b)(6) of this rule to testify on behalf of a party. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.
Addition to Reporter's Notes, 2003 Amendment: The penultimate sentence of subdivision (a) has been rewritten to expressly provide that a subpoena is not mandatory if the deponent is a party or a person designated under subdivision (b)(6) to testify on behalf of a party. Notice of the deposition is the sole requirement in these circumstances.
Rule 30 of the Federal Rules of Civil Procedure does not explicitly state that a subpoena is unnecessary when the deponent is a party. Under Fed.R.Civ.P. 37(d), however, sanctions may be imposed against a party or person designated to testify on behalf of a party who does not appear at a deposition "after being served with a proper notice." On the basis of this language, which also appears in the corresponding Arkansas rule, the federal courts "have reasoned that notice alone, without subpoena, is sufficient." 8A Wright, Miller Marcus, Federal Practice Procedure § 2107 (1994).
6. The introductory provision of subdivision (b)(2) of Rule 37 and the accompanying Reporter's Notes are amended as follows:
Rule 37. Failure to make discovery; Sanctions.
(b) Failure to Comply With Order.
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(2) Sanctions by Court in Which Action Is Pending. If a party or an officer, director or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
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Addition to Reporter's Notes, 2003 Amendment: In subdivision (b)(2), the word "person" in the first clause has been replaced with "party," thus making the provision consistent with the corresponding federal rule.
7. Subdivision (a)(1) of Rule 41 and the accompanying Reporter's Notes are amended as follows:
Rule 41. Dismissal of actions.
(a) Voluntary Dismissal; Effect Thereof.
(1) Subject to the provisions of Rule 23(e) and Rule 66, an action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court. Although such a dismissal is a matter of right, it is effective only upon entry of a court order dismissing the action.
Addition to Reporter's Notes, 2003 Amendment: The reference to "Rule 23(d)" in subdivision (a)(1) has been corrected to read "Rule 23(e)."
8. Subdivision (f) of Rule 59 and the accompanying Reporter's Notes are amended as follows:
Rule 59. New Trials.
(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
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).
9. Subdivision (a) of Rule 66 and the accompanying Reporter's Notes are amended as follows:
Rule 66. Receivers.
(a) Appointment. Circuit courts may appoint receivers for any lawful purpose when such appointment shall be deemed necessary and proper. The receiver shall give bond, with sufficient security, in an amount to be approved by the court, for the benefit of all persons in interest. The receiver shall likewise take an oath to faithfully perform the duties reposed in him by the court.
Addition to Reporter's Notes, 2003 Amendment: In light of Constitutional Amendment 80, the reference to "courts of equity" in subdivision (a) has been replaced with "circuit courts."
B. Rules of Appellate Procedure-Civil
1. Subdivision (b) of Rule 2 and the accompanying Reporter's Notes are amended as follows:
Rule 2. Appealable matters; Priority.
(b) An appeal from any final order also brings up for review any intermediate order involving the merits and necessarily affecting the judgment. An appeal from an order disposing of a postjudgment motion under Rule 4 brings up for review the judgment and any intermediate order involving the merits and necessarily affecting the judgment, as well as the order appealed from.
Addition to Reporter's Notes, 2003 Amendment: The second sentence of subdivision (b) is new. This sentence formerly appeared in Rule 5(b), which has been rewritten.
2. Subdivision (a) of Rule 3 and the accompanying Reporter's Notes are amended as follows:
Rule 3. Appeal — How taken.
(a) Mode of obtaining review. The mode of bringing a judgment or order to the Supreme Court or Court of Appeals for review shall be by appeal. An appeal from any final order also brings up for review any intermediate order involving the merits and necessarily affecting the judgment. An appeal from an order disposing of a postjudgment motion under Rule 4 brings up for review the judgment and any intermediate order involving the merits and necessarily affecting the judgment, as well as the order appealed from.
Addition to Reporter's Notes, 2003 Amendment: The second and third sentences of subdivision (a) have been added. They also appear in Rule 2(b), as amended in 2003, and are reproduced here to provide additional notice to counsel.
3. Subdivision (d) of Rule 4 and the accompanying Reporter's Notes are amended as follows:
Rule 4. Appeal — When taken.
(d) When judgment is entered. A judgment or order is entered within the meaning of this rule when it is filed in accordance with Administrative Order No. 2(b).
Addition to Reporter's Notes, 2003 Amendment: Subdivision (d) has been amended to incorporate the provisions of Administrative Order No. 2(b), which governs the entry of judgments and orders. This change ensures that the rule is consistent with the order.
4. Subdivision (b) of Rule 5 and the accompanying Reporter's Notes are amended as follows:
Rule 5. Record — Time for filing.
(b) Extension of time. (1) If any party has designated stenographically reported material for inclusion in the record on appeal, the circuit court, by order entered before expiration of the period prescribed by subdivision (a) of this rule or a prior extension order, may extend the time for filing the record only if it makes the following findings:
(A) The appellant has filed a motion explaining the reasons for the requested extension and served the motion on all counsel of record;
(B) The time to file the record on appeal has not yet expired;
(C) All parties have had the opportunity to be heard on the motion, either at a hearing or by responding in writing;
(D) The appellant, in compliance with Rule 6(b), has timely ordered the stenographically reported material from the court reporter and made any financial arrangements required for its preparation; and
(E) An extension of time is necessary for the court reporter to include the stenographically reported material in the record on appeal.
(2) In no event shall the time be extended more than seven (7) months from the date of the entry of the judgment or order, or from the date on which a timely postjudgment motion is deemed to have been disposed of under Rule 4(b)(1), whichever is later.
(3) If the appellant is unable to obtain entry of an order of extension before expiration of the period prescribed by subdivision (a) of this rule or a prior extension order, the appellant may file with the clerk of the Supreme Court a petition for writ of certiorari pursuant to Rule 3-5 of the Rules of the Supreme Court and Court of Appeals.
Addition to Reporter's Notes, 2003 Amendment: Subdivision (b) has been divided into three paragraphs and revised to clarify the steps necessary to obtain an extension of time for filing the record on appeal. The first and second paragraphs do not change the circumstances under which such an extension is permissible, but the first paragraph specifies the findings that the circuit court must make. See Murphy v. Dumas, 343 Ark. 608, 36 S.W.3d 351 (2001). Under the third paragraph, which is new, an appellant may file a petition for writ of certiorari in the Supreme Court if he or she cannot obtain an extension order prior to the applicable deadline.
Deleted from subdivision (b) is a provision that an appeal from an order disposing of a postjudgment motion "brings up for review the judgment, decree and any intermediate order involving the merits and necessarily affecting the judgment, as well as the order appealed from." This language now appears in Rules 2(b) and 3(a).
C. Administrative Orders
Subdivision (b) of Administrative Order No. 2 is amended by changing the references to "Rule 4(e)" in paragraphs (3) and (4) to "Rule 4." As amended, paragraphs (3) and (4) read as follows:
Administrative Order No. 2. Dockets and Other Records
(b) Judgments and Orders.
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(3) If the clerk's office has a facsimile machine, the clerk shall accept facsimile transmission of a judgment, decree or order filed in such manner at the direction of the court. The clerk shall stamp or otherwise mark a facsimile copy as filed on the date and time that it is received on the clerk's facsimile machine during the regular hours of the clerk's office or, if received outside those hours, at the time the office opens on the next business day. The date stamped on the facsimile copy shall control all appeal-related deadlines pursuant to Rule 4 of the Arkansas Rules of Appellate Procedure-Civil. The original judgment, decree or order shall be substituted for the facsimile copy within fourteen days of transmission.
(4) At any time that the clerk's office is not open for business, and upon an express finding of extraordinary circumstances set forth in an order, any judge may make any order effective immediately by signing it, noting the time and date thereon, and marking or stamping it "filed in open court." Any such order shall be filed with the clerk on the next day on which the clerk's office is open, and this filing date shall control all appeal-related deadlines pursuant to Rule 4 of the Arkansas Rules of Appellate Procedure-Civil.