Chapter 5 The Notice of Appeal-civil

• Library: Handling Appeals in Arkansas (2021 Ed.)

CHAPTER 5 THE NOTICE OF APPEAL-CIVIL John P. (Jack) Talbot

A. Introduction

A written notice of appeal is mandatory, and ideally it will not be drafted at the eleventh-hour. Defects and statements in the notice have serious consequences, and while some problems might be corrected or forgiven, others will result in dismissal. In particular, an untimely notice is fatal. That is because "[t]he failure to file a timely notice of appeal deprives the appellate court of jurisdiction." Harold Ives Trucking Co. v. Pro Transp., Inc., 341 Ark. 735, 738, 19 S.W.3d 600, 602 (2000). To ensure a timely, sufficient notice that gives the appellate court jurisdiction, read and follow the court rules, along with the explanations below.

B. Where to File the Notice of Appeal

File the notice of appeal with the circuit clerk who entered the judgment, decree, or order being appealed. ARAP-Civ 3(b). In counties where the county clerk is the ex-officio clerk of the probate division of the circuit court, file the notice of appeal with either the circuit clerk or the county clerk, but only if the county clerk entered the judgment or order being appealed. Id. A notice not filed with the clerk who entered the judgment is of no effect. See Rossi v. Rossi, 319 Ark. 373, 374-75, 892 S.W.2d 246, 246-47 (1995).

C. Contents of the Notice of Appeal

ARAP-Civ 3(e) governs the contents of the notice of appeal. Notices are judged by what they say, not by what they were intended to say. Arkansas Dep't of Human Servs. v. Shipman, 25 Ark. App. 247, 253, 756 S.W.2d 930, 933 (1988). Accordingly, your notice of appeal should strictly comply with ARAP-Civ 3(e). The notice must:

• specify the party or parties taking the appeal;

• designate the judgment, decree, order, or part thereof being appealed;

• designate the contents of the record on appeal, and if the entire record is not designated, state concisely the points on appeal;

• if oral testimony or proceedings are included in the record, state that the appellant has ordered the transcript of the proceedings and made any financial arrangements the court reporter requires;

• state whether the appeal is to the Court of Appeals or the Supreme Court, and if to the Supreme Court, identify the subdivision of ASCR 1-2(a) that gives the Supreme Court jurisdiction; and

• state that any pending but unresolved claim is abandoned, except in certain circumstances discussed later in this chapter. ARAP-Civ 3(e), (f).

We more fully discuss each requirement below.

1. Designating the Party or Parties Taking the Appeal

In most cases, this portion of the notice is easily satisfied, but it can require a second thought when multiple parties are involved. Persons not named as parties to the notice of appeal will not be before the appellate court. Shipman, 25 Ark. App. at 253, 756 S.W.2d at 933.

Under ARAP-Civ 3(c), "[i]f two or more persons are entitled to appeal and their interests are such as to make joinder practicable, they may file a joint notice of appeal. . . ." The joint notice should name all joining parties as appellants. If a joint notice is not used, each appealing party must file a separate notice. One party's notice of appeal will not inure to another party's benefit. Ozark Acoustical Contractors, Inc. v. National Bank of Commerce, 301 Ark. 472, 473-74, 786 S.W.2d 813, 814 (1990) (dismissing appeal of two parties who had neither filed timely notices of appeal nor been named as appellants in timely notices filed by other parties); Ward v. Universal C.I.T. Credit Corp., 228 Ark. 275, 279, 307 S.W.2d 73, 75 (1957) (ruling that two sureties had no appeal to be passed upon where the primary obligor filed a notice of appeal, but the sureties, who were parties to the case and had a like right to appeal, failed to file notices).

2. Designating the Judgment, Decree, or Order Appealed From

Caution and careful consideration of the issues are appropriate here as well, because an improper designation can affect the scope of appellate review or even result in dismissal. Orders not mentioned in a notice of appeal are generally not before the appellate court. Shipman, 25 Ark. App. at 253, 756 S.W.2d at 934. Further, because an appeal is only appropriate when the circuit court enters a final judgment or one of the other orders listed in ARAP-Civ 2(a), the notice of appeal must designate a judgment or order that is within the purview of that rule. If it does not, the appeal will be dismissed. Haile v. Arkansas Power & Light Co., 322 Ark. 29, 32, 907 S.W.2d 122, 123 (1995).

The better practice is to designate the appealable judgment or order by title and date of filing. A notice of appeal must identify the order appealed from with specificity. Shipman, 25 Ark. App. at 253, 756 S.W.2d at 933. A scrivener's error in identifying the order might be forgiven, if it is clear what order is being appealed, but a notice that omits any reference to the challenged order is ineffective. Brown v. United Bank, 2014 Ark. App. 643, at 5, 448 S.W.3d 726, 730.

Regarding orders that precede the final order, "[a]n appeal from any final order also brings up for review any intermediate order involving the merits and necessarily affecting the judgment." ARAP-Civ 2(b). For example, an appeal from a jury verdict and final judgment preserves appellate review of an intermediate partial summary judgment. Aka v. Jefferson Hosp. Ass'n, 344 Ark. 627, 638, 42 S.W.3d 508, 515 (2001). Despite the rule, consider expressly stating in your notice of appeal every single adverse order that you intend to potentially argue on appeal. It never hurts to provide more specificity rather than less. If the order is neither designated in the notice of appeal nor a step in the "procedural progression" leading to the designated final order, it will not be reviewed. 5 Am. Jur. 2d Appellate Review § 336, n. 99. Likewise, if the notice of appeal designates only a portion of the judgment, decree, or order appealed from, as allowed by ARAP-Civ 3(e), the appellate court will not review the remaining portions of the judgment, decree, or order. Miles v. Desich, 228 Ark. 803, 808, 310 S.W.2d 505, 508 (1958). Finally, a notice of appeal from an interlocutory order will not bring up for review a final order if the notice is not amended to include the final order. Cole v. Laws, 349 Ark. 177, 186-87, 76 S.W.3d 878, 883-84 (2002); Lee v. Konkel-Swaim, 73 Ark. App. 429, 431-32, 43 S.W.3d 767, 770 (2001).

Be careful when there are postjudgment motions, amended orders, or a combination of both. In Piping Indus. Co. v. Future Fuel Chem. Co., 2013 Ark. App. 549, the Court of Appeals dismissed the appeal because the notice of appeal designated an "Order Granting Judgment Notwithstanding the Verdict and to Alter or Amend the Judgment" but did not designate a separate "Amended Jury Verdict and Judgment" entered the same day. While the notice of appeal included dragnet language, designating both the specified order "and all other rulings adverse to [the appellant]," the appellate court did not address this language. Id. at 3.

Parties should also be aware that designating a final judgment or appealable order does not bring up for review any collateral matters, like a postjudgment request for attorneys' fees. Nettleton Sch. Dist. v. Owens, 329 Ark. 367, 375, 948 S.W.2d 94, 98 (1997) (agreeing that cross-appellant's claim for attorneys' fees was procedurally barred; no notice of appeal was filed from the postjudgment order denying attorneys' fees). Matters collateral or supplemental to the final judgment require their own separate notice of appeal, or at least an amended notice of appeal. See, e.g., Ford Motor Co. v. Keatts, 2013 Ark. App. 275, at 2; Craig v. Carrigo, 353 Ark. 761, 777, 121 S.W.3d 154, 164 (2003). Because an order for attorneys' fees is a collateral matter, it remains in place even if the underlying judgment on the merits is...