Chapter 16 Special Kinds of Appeals
Library | Handling Appeals in Arkansas (2021 Ed.) |
A. Introduction
The preceding chapters have set out general rules that apply in the vast majority of civil appeals. This chapter focuses on appeals with different procedural rules and standards. The general rules regarding filing briefs and the other procedural requirements apply unless noted to the contrary.
B. Probate Appeals
Appeals from the probate division of circuit court involve several critical exceptions to some of the general rules that have been discussed in earlier chapters, specifically regarding final judgments, appealable orders, and stays. Unless otherwise noted in this section, the other sections regarding civil appellate procedure and the general principles addressing brief writing and oral argument apply.
1. Appealable Orders
In probate cases, the guiding rule is that all orders are immediately appealable, except (1) an order removing a fiduciary for failure to give a new bond or refusing a request by the court and (2) an order appointing or denying a special administrator. ACA § 28-1-116; see also ARAP-Civ 2(a)(12) (recognizing appealability of probate orders); In re Estate of McLaughlin, 306 Ark. 515, 516-17, 815 S.W.2d 937, 937-38 (1991) (order denying appointment of special administrator). An order denying or granting a petition to remove a personal representative is appealable. Guess v. Going, 62 Ark. App. 19, 23, 966 S.W.2d 930, 932 (1998).
While an interlocutory probate order, other than the exceptions noted, may be appealed, either the appellate court or the circuit court may stay the appeal until a final distribution is made, unless the order admits or denies probate of a will or appoints or refuses to appoint a personal representative. ACA § 28-1-116(c). That subsection does not apply to guardianships.
2. When to Appeal
The obvious question raised by these provisions is: at what point in the litigation must an aggrieved party appeal an interlocutory probate order? In sum, an appeal may be taken immediately from almost all orders as discussed above; from orders of final distribution including prior appealable orders and judgments; and, during the pendency of the probate action when a motion to vacate or modify an earlier order is ruled upon.
If an immediate appeal is not taken, the party may still raise the issue when an appeal is taken from the order of final distribution in the administration of a decedent's estate. At that time, all prior appealable orders and judgments to which the appellant has filed objections in writing shall be reviewed. The written objection must be filed within 60 days after the order or judgment was rendered. The appellant must indicate the election by clearly stating in the notice of appeal the orders he or she desires to have reviewed. ACA § 28-1-116(d).
A probate court may vacate or modify an order from which no appeal has been taken within the time period allowed for appeal after final termination of the administration of the estate. ACA § 28-1-115(a). This means that a probate order may be vacated or modified at any time before a final order is entered and applies notwithstanding ARCP 60(a), which imposes a general 90-day limit on a circuit court's power to modify or set aside its order. Helena Reg'l Med. Ctr. v. Wilson, 362 Ark. 117, 125-26, 207 S.W.3d 541, 545-46 (2005) (appeal taken from order denying motion for reconsideration was timely; rejected argument that ARCP 52 applied and that motion for reconsideration more than 10 days after order was untimely); Snowden v. Riggins, 70 Ark. App. 1, at 6-7, 13 S.W.3d 598, 601 (2000) (denial of motion to set aside appointment of personal representative; personal representative had been appointed two years earlier; motion was timely and its denial was appealable).
3. Stay Pending Appeal
In contrast to the general rule that enforcement of an order or judgment is not stayed during an appeal unless an appellant posts a supersedeas bond, the opposite rule applies to probate appeals. An appeal of a probate order stays other proceedings in the circuit court except when, and to the extent that, the court finds no interested person will be prejudiced and by order permits other proceedings. ACA § 28-1-116(e)(1). The statute also provides that an order granting an allowance to the widow and minor children of a decedent — pending settlement of the estate or setting apart exempt personal property to them—will not be stayed by an appeal. ACA § 28-1-116(e)(2). Finally, no supersedeas bond is required of a fiduciary when, in any probate matter, he or she appeals on behalf of the ward or estate. ACA § 28-1-116(f).
4. Proceedings on Appeal
In other respects, an appeal of a probate order is the same as other civil appeals. The Probate Code sets out the time, manner, notice, appeal bonds, stays, scope of review, and duties of the clerk. All other matters relating to appellate review are determined by the law and rules applicable to appeals in equity cases. The transcript on appeal must be compiled in the same manner and consist of the same material as provided by law for other appeals. ACA § 28-1-116(g)(2). Refer to the chapters of this handbook regarding filing and handling civil appeals for additional information.
C. Administrative and Regulatory Commission Appeals
Appeals from decisions of administrative and regulatory commissions are primarily set out in statutes. The threshold question in determining where, and how, to appeal the decisions of administrative agencies and boards is whether the Arkansas Administrative Procedure Act ("APA") applies. ACA §§ 25-15-201 to -219. Appeals from the decisions and orders of the following...
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