IN RE: ARKANSAS RULES of CIVIL PROCEDURE

4, 12, 15, 45, 54, 56, and 78; and ARKANSAS

RULES of APPELLATE PROCEDURE--CIVIL 2 and 4

___ S.W.3d ___

Supreme Court of Arkansas

Delivered February 1, 2001

Per Curiam. The 2000 report of the Arkansas Supreme Court Committee on Civil Practice contained a number of suggested rules changes. The Committee's suggestions were published in our per curiam order of November 9, 2000 so that members of the bench and bar could have an opportunity to comment. We thank those who took the time to review the proposals and

submit comments.

The proposals with some revisions1 will be implemented. 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.

The amendments to Ark. R. Civ. P. 4 are deemed to supersede Ark. Code Ann. §§ 16-58-107, 16-58-108, 16-58-109, 16-58-112, 16-58-113, 16-58-118, and 16-58-119.

We adopt the following amendments to be effective immediately andrepublish the rules and Reporter's Notes as set out below.

Arkansas Rules of Civil Procedure

1. Rule 4 is amended by revising: subdivision (a) to permit service only by "a person authorized by this rule to serve process;" and subdivision (c) to allow service of process by a sheriff or deputy "unless the sheriff is a party to the action."

Rule 4, Ark. R. Civ. P.

(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 person authorized by this rule to serve process. ***

(c) By Whom Served. Service of summons shall be made by (1) a sheriff of the county where the service is to be made, or his or her deputy, unless the sheriff is a party to the action; (2) any person not less than eighteen years of age appointed for the purpose of serving summons by either the court in which the action is filed or a court in the county in which service is to be made; (3) any person authorized to serve process under the law of the place outside this state where service is made; or (4) in the event of service by mail pursuant to subdivision (d)(8) of this rule, by the plaintiff or an attorney of record for the plaintiff.

Addition to Reporter's Notes, 2001 Amendment: Subdivision (a) has been revised to provide that service may be made only by a person "authorized by this rule to serve process." Previously, the rule allowed anyone "authorized by law" to serve process and thus incorporated statutes permitting or requiring certain persons to make service. See, e.g, Nelson v. Wakefield, 282 Ark. 285, 668 S.W.2d 29 (1984) (service on sheriff by deputy held improper in light of Ark. Code Ann. §§ 16-58-112, which provides that "in an action wherein the sheriff is a party or is interested, [process] shall be directed to the coroner or, if he is interested to someconstable").

Applying Nelson to other statutes could defeat the purpose of subdivision (c) of the rule, which limits service to a particular person, including a sheriff, a deputy, or a person at least 18 years of age appointed by the court. For example, Ark. Code Ann. §§ 16-58-107(2) authorizes service "[b]y any person appointed by the officer to whom the summons is directed." This provision would allow a sheriff, deputy sheriff, or a person appointed by the court to designate someone else to serve process, a result contrary to the purpose of the subdivision (c), i.e., to give the court control over private process servers. Also, paragraph (3) of the statute allows service "[b]y any person not a party to the action, in all actions arising on contract for the recovery of money only." In such cases, no court appointment would be necessary, and even someone under 18 could make service so long as he or she were not a party. Other statutes are not as troublesome as Section 16-58-107 but are not necessary in light of Rule 4. See Ark. Code Ann. §§§§ 16-58-108, 16-58-109, 16-58-113, 16-58-118, 16-58-119. These statutes are deemed superseded, as are Sections 16-58-107 and 16-58-112.

New language in subdivision (c)(1) treats the problem that Section 16-58-112 was meant to address, i.e., service by a sheriff or deputy when the sheriff is a party. In that situation, neither the sheriff nor a deputy may serve process. Thus, service must be accomplished pursuant to one of the other provisions of subdivision (c), e.g., by someone appointed by the court or by mail.

2. Rule 12 is amended by deleting the words "or any other" in the first sentence of subdivision (i).

Rule 12, Ark. R. Civ. P.

(i) Response to Motions. If a party opposes a motion made under this rule, he shall file his response, including a brief in support, within ten (10) days after service of the motion upon him. If the movant desires to reply he shall do so within five (5) days after service of the response upon him.

Addition to Reporter's Notes, 2001 Amendment: As adopted in 1987, the first sentence of subdivision (i) referred to "a motion made under this or any other rule." The words "or any other" have been deleted because of the 2001 amendment to Rule 56(c) establishing time frames for summary judgment motions and responses. Other motions are covered by Rule 78(b).

3. Rule 15 is amended by revising subdivision (d) to permit the filing of a supplemental pleading without leave of court under the same terms as an amended pleading under Rule 15 (a) and to require a response to a supplemental pleading.

Rule 15, Ark. R. Civ. P.

(d) Supplemental Pleadings. A party may at any time without leave of court file a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Where, however, upon motion of an opposing party, the court determines that prejudice would result or the disposition of the cause would be unduly delayed because of the filing of a supplemental pleading, the court may strike such amended pleading or grant a continuance of the proceeding. A party shall plead in response to a supplemental pleading within the time remaining for response to the original pleading or within 20 days after service of the supplemental pleading, whichever period is longer, unless the court otherwise orders.

Addition to Reporter's Notes, 2001 Amendment: Subdivision (d), which governs supplemental pleadings, is amended to make its terms parallel with those of subdivision (a), which applies to amended pleadings. By virtue of the amendment, permission of the court to file a supplemental pleading is no longer necessary, although the opposing party may move to strike the pleading on grounds of prejudice or undue delay. Also, a response to the supplemental pleading is now required. Under the original version of the rule, a response was to be filed only if the court "deem[ed] it advisable."

4. Rule 45 is amended to make plain that a subpoena duces tecum may be issued only in connection with a deposition, hearing, or trial pursuant to subdivision (d), (e), or (f) of this rule." In subdivision (d), thefollowing is inserted: "Notice of the subpoena shall be promptly given to all parties in the manner prescribed by Rule 5(b)."

Rule 45, Ark. R. Civ. P.

(b) For Production of Documentary Evidence. A subpoena issued pursuant to subdivision (d), (e), or (f) of this rule may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein; but the court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may (1) quash or modify the subpoena if it is unreasonable or oppressive or (2) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents or tangible things.

***

(d) Subpoena for Trial or Hearing. At the request of any party the clerk of the court before which the action is pending shall issue a subpoena for a trial or hearing, or a subpoena for the production at a trial or hearing of documentary evidence, signed and sealed, but otherwise in blank, to the party requesting it, who shall fill it in before service. The subpoena may also be issued by an attorney pursuant to subdivision (a) of this rule. Notice of the subpoena shall be promptly given to all parties in the manner prescribed by Rule 5(b). A witness, regardless of his county of residence, shall be obligated to attend for examination on trial or hearing in a civil action anywhere in this State when properly served with a subpoena at least two (2) days prior to the trial or hearing. The court may grant leave for a subpoena to be issued within two (2) days of the trial or hearing. The subpoena must be accompanied by a tender of a witness fee calculated at the rate of $30.00 per day for attendance and $0.25 per mile for travel from the witness' residence to the place of the trial or hearing. In the event of telephone service of a subpoena by a sheriff or his deputy, the party who caused the witness to be subpoenaed shall tender the fee prior to or at the time of the witness' appearance at the trial or hearing. If a continuance is granted and if the witness is provided adequate notice thereof, reservice of the subpoena shall not be necessary. Any person subpoenaed for examination at the trial orhearing shall remain in attendance until excused by the party causing him to be subpoenaed or, after giving testimony, by the court.

Addition to Reporter's Notes, 2001 Amendment: Subdivision (b) of the rule has been amended to emphasize that a subpoena duces tecum is permissible only in connection with a deposition, hearing, or trial. This has always been the case under Rule 45, but a clarifying amendment was deemed advisable in light of recent cases in which lawyers have employed subpoenas to obtain documents from non-parties without a deposition. The Supreme Court has not adopted a provision authorizing a subpoena solely to compel a non-party to produce documents or submit to an inspection. Compare Rules 34(c) & 45(a)(1)(C), Fed. R. Civ. P.

It also appears that some attorneys construed Rule 45 as not only allowing such a subpoena, but permitting one without notice to opposing counsel. Under the amended rule, there is no doubt but that these so-called "stealth subpoenas" are improper and that notice is necessary for any subpoena. If the subpoena is issued in connection with a deposition, subdivisions (e) and (f) expressly require notice of the deposition. Moreover, a new sentence has been added to subdivision (d) requiring that notice of a subpoena for a trial or hearing "be promptly given to all parties in the manner prescribed by Rule 5(b)."

5. Rule 54 is amended to require the trial court to enter a "certificate," a separate document setting forth its specific factual findings that there is no just reasons for delay and expressly directing entry of a final judgment with respect to one claim in a case that involves multiple parties, multiple claims, or both.

Rule 54(b), Ark. R. Civ. P.

(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 ofjudgment. 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 ofthe 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.

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.

6. Rule 56 is amended to (1) expressly provide for partial summary judgment on any issue, including liability, and (2) establish a time frame for motion practice and to make plain that additional submissions are not permissible without leave of court.

Rule 56, Ark. R. Civ. P.

(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 onfile, 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. The court may by order 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 14 days after the time for serving a reply.

(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.

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 notheretofore 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).

7. Rule 78 is amended by changing the title of subdivision (b) from "Briefs" to "Motions, responses, and briefs" and by adding the following new sentence at the end: "The time frames set out in this subdivision shall not apply to summary judgment motions and responses, which are governed by Rule 56 (c)."

Rule 78, Ark. R. Civ. P.

(b) Motions, responses, and briefs. All motions shall be in writing and shall be supported by a brief statement of the factual and legal basis for such motion, including citations relied upon by the movant. Any respondent opposing a motion shall file his brief supporting statement within 10 days after service of the motion upon him. The movant shall have 5 days thereafter within which to file a reply brief if he so desires. Failure to file briefs in accordance with this rule shall be grounds for the court's striking the motion or response. The court is not required to grant a motion solely because no response or brief has been filed. The time frames set out in this subdivision shall not apply to summary judgment motions and responses, which are governed by Rule 56(c).

Addition to Reporter's Notes, 2001 Amendment. The title of subdivision (b) has been changed - from "Briefs" to "Motions, responses and briefs" - to more accurately reflect its contents. Also, a new sentence has been added at the end of the subdivision excepting summary judgment motions and responses from its time frames. As amended in 2001, Rule 56(c) governs the timing of motions and responses under that rule.

Arkansas Rules of Appellate Procedure - Civil

1. Subdivision (a) of Rule 2 is amended by revising paragraph 11 to account for the change in Rule 54(b) of the Rules of Civil Procedure.

Rule 2, Ark. R. App. P.--Civ.

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

* * *

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

* * *

Addition to Reporter's Notes, 2001 Amendment. Paragraph 11 of subdivision (a) has been amended to reflect the certificate now required by Rule 54(b) of the Rules of Civil Procedure.

2. Rule 4 (b)(1) is amended to clarify which posttrial motions extend the time for filing the notice of appeal.

Rule 4, Ark. R. App. P.--Civ.

* * *

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

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

* * *

Addition to Reporter's Notes, 2001 Amendment: Rule 4(b)(1) has been amended to clarify which posttrial motions extend the time for filing the notice of appeal. Confusion has arisen in the past as to the effect of a motion other than the three specified in the rule. See, e.g., McCoy v. Moore, 338 Ark. 740, 1 S.W. 3d 11 (1999). Under the amended rule, timely motions under Rules 50(b), 52(b), and 59(a) extend the time, as does "any other motion to vacate, alter, or amend the judgment made no later than 10 days after entry of judgment." For example, a motion to set aside the judgment pursuant to Rule 60 extends the time for filing the notice of appeal, so long as it is made no later than 10 days after the judgment is entered. The 10-day period corresponds to the time frame for motions under Rules 50(b), 52(b), and 59(a).

1 The proposed addition of a new paragraph (C) to Rule 4(d)(8) to allow service of summons and complaint by a commercial delivery service is not being adopted at this time.