Chapter 14 Petitions for Rehearing

LibraryHandling Appeals in Arkansas (2021 Ed.)
CHAPTER 14 PETITIONS FOR REHEARING
R. Christopher Lawson

A. Introduction

The appellate court has ruled against you. Before the ink dries on the court's opinion, you want another chance to be heard. The words "petition for rehearing" in ASCR 2-3 resonate with hope. But here you must pause, take a deep breath, and remember the enduring words of Justice George Rose Smith: "What's a seven-letter word for petition for rehearing? Tantrum."

A petition for rehearing is not an opportunity to reargue your case. Instead, the petition must identify a specific error of law or fact in the appellate opinion that impacts all or part of the court's holding. Be strategic and precise. Avoid throwing a "tantrum" for losing an appeal, lest you miss the opportunity to navigate this narrow opportunity for relief.

B. The Requirements of ASCR 2-3

1. Filing the Petition

A petition for rehearing and a $25 filing fee must be filed with the clerk within 18 days from the date the appellate court issues its opinion. ASCR 2-3(a); ACA § 21-6-401(a)(3). Why 18 days? Because the court's mandate may issue any time after then. ASCR 5-3(b). The court will grant more time to file a petition only on written motion demonstrating counsel's illness or unavoidable casualty. ASCR 2-3(c). In cases at the Supreme Court, file eight copies of the petition and supporting brief; file 14 copies in Court of Appeals cases. ASCR 2-3(d). Additional counsel may participate in filing the petition, but the original attorney of record must sign the petition.

2. Contents of the Petition

The petition's purpose is to call the appellate court's attention to specific errors of law or fact in the opinion. Henry v. QHG of Springdale, Inc., 2010 Ark. App. 847, 378 S.W.3d 803 (affirming the circuit court's award of attorneys' fees after originally remanding the case for further findings by the circuit court under an improper application of the attorneys'-fee statute); but see Echols v. State, 361 Ark. 15, 201 S.W.3d 890 (2005) (denying a petition for rehearing where the appellant merely reasserted his previous arguments); Jones v. Jones, 327 Ark. 195, 938 S.W.2d 228 (1997) (recognizing that a post-opinion petition raising matters collateral to the opinion is not a petition for rehearing as contemplated by the rules).

If the petitioner asserts that the court has overlooked a specific fact in reaching its decision, the petition must contain a clear reference to the omitted fact in the original abstract or addendum. ASCR...

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