Chapter 5 The Notice of Appeal—civil

• Library: Handling Appeals in Arkansas (2022 Ed.)

CHAPTER 5 THE NOTICE OF APPEAL—CIVIL

John P. (Jack) Talbot

A. Introduction

B. Where to File the Notice of Appeal

C. Contents of the Notice of Appeal

1. Designating the Party or Parties Taking the Appeal

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

3. Designating the Record and Points on Appeal

4. Designating Oral Testimony or Proceedings

5. Designating the Appellate Court

6. Abandoning Unresolved Claims

D. Serving the Notice of Appeal

E. Timing of the Notice of Appeal

1. Beginning of the 30-Day Filing Period

(a) The general rule

(b) Faxed orders

(c) Orders filed in open court

(d) Interlocutory orders

(e) Notice of appeal is filed before order to be appealed is entered

(f) Other orders are entered after notice of appeal is filed

(g) Orders in cases with "John Doe" defendants

(h) Nunc pro tunc orders

2. End of the 30-Day Filing Period

3. Exceptions to the 30-Day Filing Period

(a) Timely posttrial motion

(b) Lack of notice of judgment, decree, or order

(c) Subsequent ARCP 54(b) Certificate

(d) Election cases

(e) Workers' compensation cases

F. Deficiencies in the Notice of Appeal

G. Amending the Notice of Appeal

H. Responding to the Notice of Appeal

1. Designating Additional Parts of the Record

2. Notice of Cross-Appeal

(a) Should you file a notice of cross-appeal?

(b) What information should the notice of cross-appeal include?

(c) When must the notice of cross-appeal be filed?

(d) How must the notice of cross-appeal be served?

A. Introduction

A written notice of appeal is mandatory, and it should not be drafted at the eleventh hour. It is not a perfunctory filing. Defects in the notice can have serious consequences. And while some problems might be corrected or forgiven, others may reduce the scope of your appeal, require a time-consuming remand, or result in dismissal. When you file the notice of appeal is vitally important, especially when there are multiple claims or parties, or when postjudgment filings or other filings postdate your notice; you may be required to amend your notice to make it effective. At some point, the appellate court will review your case for jurisdictional issues to determine whether it can rule on the merits. If you are not anticipating this review and preparing a notice and a record based on it, you are simply unprepared. It may or may not turn out well. To ensure a timely, sufficient notice that creates appellate jurisdiction over the issues you intend to raise, read and follow the court rules, along with the explanations below, and file what you need to when you need to do so.

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. Bayer CropScience LP v. Schafer, 2011 Ark. 518, at 24, 385 S.W.3d 822, 837. 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), (g).

We more fully discuss each requirement below. Did we already warn that this is not a perfunctory act?

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 heard. Ark. Dep't of Human Servs. v. Shipman, 25 Ark. App. 247, 253, 756 S.W.2d 930, 933 (1988).

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. Nat'l 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 too, 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. Schafer, 2011 Ark. 518, at 24, 385 S.W.3d at 837. For example, when a notice of appeal designates an order dismissing some defendants but not a subsequent order dismissing other defendants, the appellate court will not address the subsequent order. Williams v. St. Vincent Infirmary Med. Ctr., 2021 Ark. 14, at 6, 615 S.W.3d 721, 726. An exception is 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). And 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).

But the reverse is not true: a notice of appeal from an interlocutory order will not bring up a final order if the notice does not name 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). If you plan to appeal an intermediate order but must wait until the entry of a final order to do so, then designate the final order in your notice of appeal and the intermediate order. You can identify too few orders; you cannot identify too many.

To reduce the risk of being unable to argue an order on appeal because you did not identify it in the notice of appeal, consider expressly stating in your notice of appeal every adverse order you intend to potentially challenge on appeal. Again, it does not hurt to provide more specificity rather than less. Likewise, if the notice of appeal designates only part of the judgment, decree, or order appealed from as allowed by ARAP-Civ 3(e)(ii), then the appellate court will not review the remaining parts of the judgment, decree, or order. Miles v. Desich, 228 Ark. 803, 808, 310 S.W.2d 505, 508 (1958). But see Spell v. Spell, 266 Ark. 631, 633-34, 578 S.W.2d 221, 223 (declining to apply Miles and instead broadly construing a notice of cross-appeal where there was no prejudice to the cross-appellee).

Further, because an appeal is only authorized 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 specifically designate a judgment or order that is within the purview of that rule. If it does not, the appeal will be dismissed. Haile v. Ark. Power & Light Co., 322 Ark. 29, 32, 907 S.W.2d 122, 123 (1995); Shipman, 25 Ark. App. at 253, 756 S.W.2d at 933. But see Mann v. Pierce, 2016 Ark. 418, at 4, 505 S.W.3d 150, 153 (finding substantial compliance with ARAP-Civ 3(e) where the notice of appeal was timely filed and designated an intermediate order rather than the final order). The best practice is to designate the appealable judgment or order by title and date of filing. 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.

The Supreme Court showed leniency with an improper designation in Emis v. Emis, 2017 Ark. 52, 508 S.W.3d 886. There, the circuit court entered findings of fact and conclusions of law and then later entered an order. The appellant's notice of appeal stated that she appealed from the findings of fact and conclusions of law but did not designate the subsequent final order. Although the appellant amended her notice of appeal twice, neither amendment referenced the final order. The Supreme Court, applying a substantial-compliance standard rather than the prior strict-compliance standard, reversed the Court of Appeals' finding that this error precluded appellate jurisdiction, noting that a defective designation is not fatal if (1) it is clear which order the appellant is challenging, (2) the notice of appeal is timely as to that order, and (3) there is no prejudice to the appellee from the failure to reference the appealable order.

Practitioners' Note: Because it contemplates further entry of a formal...