Chapter 5 The Notice of Appeal – Civil

• Library: Handling Appeals in Arkansas (2015 Ed.)

THE NOTICE OF APPEAL – CIVIL

John P. (Jack) Talbot

A. Introduction................................................................................................................. 5-2

B. Where to File the Notice of Appeal....................................................................... 5-2

C. Contents of the Notice of Appeal.......................................................................... 5-2

1. Designation of the Party or Parties Taking the Appeal.................................. 5-3

2. Designation of the Judgment, Decree or Order Appealed From................. 5-4

3. Designation of the Record and Points on Appeal............................................. 5-6

4. Designation of Oral Testimony or Proceedings................................................ 5-7

5. Designation of Appellate Court............................................................................. 5-8

D. Service of the Notice of Appeal.............................................................................. 5-8

E. Timing of the Notice of Appeal............................................................................. 5-9

1. When Does the 30-Day Filing Period Begin?..................................................... 5-9

2.

2.When Does the 30-Day Filing Period End?...................................................... 5-10

3. Exceptions to the 30-Day Filing Period............................................................. 5-11

(a) Timely Post-Trial Motion...................................................................................... 5-11

(b) Lack of Notice of Judgment, Decree, or Order................................................ 5-12

(c) Subsequent ARCP 54(b) Certificate.................................................................... 5-13

(d) Election Cases........................................................................................................... 5-14

(e) Workers’ Compensation Cases............................................................................ 5-14

F. Deficiencies in the Notice of Appeal.................................................................. 5-14

G. Responding to the Notice of Appeal.................................................................. 5-15

1. Designating Additional Parts of the Record.................................................... 5-15

2. Notice of Cross-Appeal.......................................................................................... 5-15

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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 Transportation, Inc., 341 Ark. 735, 738, 19 S.W.3d 600 (2000). To ensure a timely, sufficient notice and the creation of jurisdiction in the appellate court, read and follow the court rules, along with the explanations below.

B. Where to File the Notice of Appeal

The notice of appeal must be filed with the clerk of the circuit court that entered the judgment, decree or order from which the appeal is taken. ARAP–Civ 3(b). In counties where the county clerk serves as the ex-officio clerk of the probate division of the circuit court, the notice of appeal can be filed with either the circuit clerk or the county clerk. Id. The alternative of filing the notice with the county clerk only applies when the county clerk entered the judgment or order from which the appeal is taken. In no event should the notice of appeal be filed with the clerk of the appellate court. A notice not filed with the clerk of the court that entered the judgment is of no effect. See, Rossi v. Rossi, 319 Ark. 373, 892 S.W.2d 246 (1995).

C. Contents of the Notice of Appeal

The contents of the notice of appeal are governed by ARAP–Civ 3(e). Notices will be judged by what they actually recite and not by what they were intended to recite. Arkansas Dept. of Human Services v. Shipman, 25 Ark. App. 247, 756 S.W.2d 930 (1988). Accordingly, your notice of appeal should strictly comply with ARAP–Civ 3(e) . Under it, the notice must: (1) specify the party or parties taking the appeal; (2) designate the judgment, decree, order or part thereof appealed from; (3) designate the contents of the record on appeal, and if the entire record is not designated, state concisely the appellant’s points on appeal; (4) if oral testimony or proceedings are included in the record, state that the appellant has ordered the transcript of the proceedings and made whatever financial arrangements are required by the court reporter; and (5) state whether the appeal is to the court of appeals or the supreme court, and if to the supreme court, the notice must identify the subdivision of ASCR 1-2(a) that gives the supreme court jurisdiction.

1. Designation of 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 in multiple party cases. 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.” If a joint notice is used, it 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 the benefit of another party. Ozark Acoustical Contractors, Inc. v. National Bank of Commerce of Memphis, 301 Ark. 472, 786 S.W.2d 813 (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, 307 S.W.2d 73 (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. Designation of 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 the appellate court’s review or even result in dismissal. Orders not mentioned in a notice of appeal are not properly 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, 907 S.W.2d 122 (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 934 .

Regarding orders that precede the final order, the rules provide that “[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 is adequate to preserve appellate review of an intermediate partial summary judgment. Aka v. Jefferson Hospital Association, Inc., 344 Ark. 627, 42 S.W.3d 508 (2001). On the other hand, if the order to be questioned 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, 310 S.W.2d 505 (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, 76 S.W.3d 878 (2002); Lee v. Konkel-Swaim, 73 Ark. App...