*1 BANK, N.A., for and Trustee Individually U.S. 1997-1; Loan Trust Home Funding
Empire Bank, N.A., Trustee for and as Individually U.S. 1997-2; Home Loan Trust Funding
Empire Bank, N.A., for and as Trustee Individually U.S. 1997-3; Loan Trust Home Funding
Empire Bank, N.A., and as Trustee for Individually U.S. 1997-4; Loan Trust Home Funding
Empire Bank, N.A., as Trustee for Individually U.S. 1997-5; Home Loan Trust Funding
Empire
N.A.,
and as Trustee
Individually
1998-1;
Loan
Home
Trust
Funding
Empire
N.A.,
Bank,
Trustee for
and as
Individually
1998-2,
Loan Trust
Home
Funding
Empire
MILBURN,
v. Wilma
Appellee;
Appellant
Bank,
and as Trustee
Milburn v. U.S.
Individually
Wilma
better, Mart by: appellee. The instant mat- Ju Clinton Imber, e e .. Annabelle s s t t i i c c interlocutory appeals by Bank, N.A., *3 from Rule 23 class-action U.S. stemming Appellant matter, a motion to dismiss with this conjunction proceeding. Mil- was filed in Wilma by U.S. Bank’s appeal Appellee us, before we must dismiss Because no burn. properly Milburn’s this set of interlocutory thereby rendering appeals, moot. motion to dismiss appeal Inc., loans several individuals. made
Rosslare Funding, and loans Rosslare bought Funding Empire Corporation then transferred loans them together. pooled Empire pooled Bank named trustee. sold interests into trusts with U.S. Empire to investors. U.S. Bank as trustee in loan trusts pooled the investors. received and distributed the loan collections to became the of a The loans Rosslare sold subject Empire filed Milburn in Greene class-action lawsuit Wilma County by 20, 1998. The original complaint Circuit Court August (TILA)/Home Truth Act Lending Ownership alleged usury, and fraud and Protection Act common-law (FIOEPA), Equity several defendants Rosslare and Empire.1 claims against including 1998, 21, the case was removed federal court On September 1999, the case where it remained until when was April late and Milburn remanded to state court.2 In 1999 early for class certification on fraud claims filed motions usury are to this The other defendants pertinent granted to dismiss the TILA / HOEPA claims The federal court Milburn’s motion prejudice. without to Arkansas 23. also filed a Civil Procedure She motion for on the claims con- summary usury that Arkansas law should to the loans. tending apply Empire with its own motion for on the responded summary judgment choice-of-law issue. 20, 2000,
On filed a Milburn third amended April complaint N.A., defendants, Bank, that named additional U.S. including and as trustee for certain loan created individually trusts thereafter, filed Shortly under Empire. Empire bankruptcy U.S. Code. A on the Chapter hearing Bankruptcy motions for class certification and summary judgment originally 12, 2000, set for was until 2001. In the postponed June June interim, U.S. Bank filed to Milburn’s class-certification responses motions.3 At the summary-judgment 2001 hearing, June Bank to the court objected on Milburn’s hearing arguments motion because her motion was not filed summary-judgment U.S. Bank. Both that the against parties agreed summary-judg- ment motion the choice of law was “core issue” regarding the case and that it would be of the generally merits. dispositive The court to hear the on the proceeded arguments issues class certification and summary Milburn that Arkan- judgment. argued sas law should and thus the loans apply Rosslare originating usurious, were while that California law should argued the interest on the loans apply, thereby below the rendering legal *4 maximum. After the an 11, order entered hearing, on June 2001, the circuit court certified the class to Rule 23 of the Arkansas Rules of Civil Procedure. Milburn then filed a 17, motion for of the class-action notice on approval 2001. July Meanwhile, the circuit court had deferred on Mil- ruling burn’s motion and summary-judgment allowed the to file parties additional briefs on the choice-of-law issue. After Bank4 U.S. and briefs, Milburn filed their the circuit sent a letter respective judge 3 Milburn’s fourth amended filed on 27, identified 2001, one complaint February additional loan as a trust defendant. motion, In opposing Milburn’s U.S. Bank the court to find that requested California law and loans U.S. Bank allegations legal all and applies factual adopted set forth in earlier analysis Empire’s responses. 30, 2001, . . . them that “the court
to on July advising counsel its for Summary Judgment. for the in Motion finds plaintiff hereby should be that Arkansas law applied It is the court’s belief the to Milburn was directed precedent case.” prepare Counsel for an order. an order the circuit signed approv- that same day, judge
On notice, was filed on which order August the class-action ing that the court advised each class member 2001.5 The notice so if the member member from the class only would exclude the the date the notice. within 20 of of days Subsequently, requested at her last known the was to each class member his or notice sent 3, 2001, and on August address in successive mailings August 2001. 23, 2001, first after the twenty which was August days
On notice, circuit entered of the class-action the court partial mailing the court in favor of Milburn. its summary thus, and, the loans ruled that Arkansas law mortgage applied; a to then filed motion were U.S. Bank’s local counsel usurious. counsel, the court on be relieved as which granted September meantime, who Bank had hired new counsel In the 2001. 4, 2001, filed a notice on designating of appeal September order; the class-certification (1) from three orders: separate notice; (3) the class-action (2) the approving Also, summary September granting partial judgment. reconsideration of class-certifi- Bank filed motion requesting asked orders. The motion cation and summary-judgment partial class, alternative, to aside or in the set court decertify sum- because Milburn obtained summary judgment, the case on the merits the issues in mary judgment prior to the class. notice completion 7, 2001, an order was entered
On appointing September receiver, to act as directing Circuit Clerk of Greene County the mem- all and interest received from pay principal bers into the of the during pendency class registry *5 5 class- Bank filed no motion for of the U.S. had Milburn’s approval response action notice. U.S. Bank’s of this Milburn action. objected September 17, 2001, and on filed a motion to notice of appeal September the lack of We deferred on dismiss ruling appeal jurisdiction. until Bank filed the motion the submission of U.S. another notice of on October an appeal designating the order a receiver. See Ark. R. appeal appointing P.—Civ. The record was filed in this 2(a)(7) (2002). subsequently on December 2001. 22, 2002,
In its brief on filed original January raised four on oral separate argument. points requested However, the fourth which the circuit point, court’s challenged entry was abandoned in the partial summary judgment, reply brief filed U.S. Bank on 2002. Bank U.S. has there- April fore that the recognized not a partial-summary-judgment order, and, thus, final not properly appealable.
At oral U.S. Bank’s counsel conceded that argument, the notice of was with class-certifica- untimely respect Moreover, tion order and the order classnotice. coun- approving sel for bank admitted entered, that at time the orders were Nonetheless, was there no fundamental error. while recognizing in its brief and at oral reply argument partial summary- was a final judgment U.S. Bank con- appealable tends that the on entry partial summary August orders, “impacted” prior thereby subsuming bootstrapping those into orders order. Under the summary-judgment Bank, so-called “impact theory” proposed by order may become aat later time when appealable facts subsequent develop Thus, to that order. relating that the class-cer- suggests tification and class-action notice orders became appealable 23 when August Milburn’s motion for partial summary judgment words, was and entered of record. In granted other August became the date from which to calculate deadline for filing notice timely earlier class-certifica- respect tion and class-action notice orders. We decline to adopt theory” U.S. Bank. “impact suggested by
150 the calculation this of court depends upon
The jurisdiction of Arkansas Rules Appellate of deadlines filing are as follows: relevant dates in case Procedure-Civil. 11, order entered Class-certification 2001 June 1, notice class-action Order approving 2001 August
entered 23, order entered Partial-summary-judgment 2001 August 4, of from appeal filed its notice 2001 U.S. Bank September (1) orders: class-certification following
order; (2) order class-action approving notice; sum- (3) order granting partial mary judgment. 4, filed its for reconsidera- U.S. Bank motion 2001
September certification and sum-
tion of class mary judgment 7, entered receivership Order 2001 September appointing 9, filed its of U.S. Bank notice October 2001 receiver order appointing 9, filed its to reconsider U.S. Bank motion October receiver appointing 3, Court Supreme Record filed with December
Clerk Order Class-Certification 2001, on of filed U.S. Bank’s notice September anas class-certification order appealable designated original Pursuant to Rule That order was entered on 2001. order. June Civil, the the Arkansas Rule of of 2(a)(9) Appellate Procedure — was class-certification order immediately appealable. of had from the the order entry
therefore days thirty June SeeArk. R. P.—Civ. file a notice timely 4, 2001, or filed on The notice 4(a) September outside clearly after was almost three months entry thirty-day period. prescribed Milburn’s motion to dismiss Initially, response that the class-certification order was an argued appeal, intermediate August partial summary-judgment *7 order. Rule the 2(b) of Arkansas Rules of Procedure— Appellate Civil that from final order also provides appeal any brings “[a]n review for intermediate order the merits up any involving the necessarily See Ark. R. P. —Civ. affecting judgment.” App. however, 2(b) That has argument, been abandoned. As stated, we have the already concedes that sum is order not a final order. mary-judgement Rule is 2(b) Appellate therefore not applicable. The deadline for a notice of that is set filing forth appeal —
Ark. R. P. —Civ. the 4(a) from the App. thirty of days entry — from be extended under the appealed of provisions Ark. R. P. —Civ. App. 4(b):
(b) Extension time notice filing appeal. of for of (1) timely in the circuit Upon filing court of. . . . . . any vacate, motion to alter or amend the made no later than 10 after of days entry the time for judgment, a notice filing of shall be appeal extended for all The notice parties. of appeal shall be filed within thirty (30) daysfrom of the entry order dis- However, posing of the last motion if outstanding. the circuit court neither nor the grants denies motion within (30) thirty days of its the motion filing, shall be deemed denied of by operation law as of the thirtieth and the notice day, of shall appeal be filed within thirty (30) days from date. Ark. R. P. —Civ. App. 4(b)(1) (2002). if a of Additionally, notice motion, filed appeal of the prior disposition who party seeks to from the denial of the appeal motion shall within thirty amend the filed days notice of previously Ark. R. App. P— Civ. 4(b)(2) (2002).
First we must out that U.S. Bank’s point motion reconsideration was not filed within ten of the days class-certifica tion Thus, order as by required 4(b). as to appellate any from order, the 11 class-certification appeal time for filing June a notice of was not extended appeal of of by timely filing any the motions fisted in Ark. R. P. —Civ. and the App. 4(b)(1), deemed-denied rule is not applicable. 4 was of filed on the notice September
While
appeal
U.S.
class-certification
untimely
respect
reconsideration
denial
its motion for
by
could
of
have appealed
such
within
from the
entry
notice of
thirty days
filing
appeal
Yet, the
does not reflect
such ruling by
an order.
record
any
court,6
a notice
or the
designated
filing
appeal
Bank’s
for reconsider-
from as the denial of U.S.
motion
appealed
event,
any
ation.
Ark. R.
P.—Civ. 3(e) (2002).7
See
cir-
that no
was taken
any ruling
Bank admits
cuit
on its
for reconsideration.
motion
of a notice of
is jurisdictional.
filing
timely
Thus,
Rossi,
Rossi v.
319 Ark.
Approvalof allow an Our rules of interlocutory appellate procedure to a or a motion from order denying certify appeal granting “[a]n of the case a class action in accordance with Rule 23 Arkansas as Ark. 2(a)(9) (2002). Rules of Civil Procedure.” R. P.—Civ. App. is We held that an order notice to class members have prescribing and, thus, the imme fundamental to the further conduct of action matter See Nat'l Bank v. as a of Union diately appealable right. Barnhart, 190, Ark. 823 878 Such an inter (1992). 308 S.W.2d the must be filed within from of thirty locutory appeal days entry Ark. R. P.—Civ. order. 4(a) App. case,
In this the order class-action notice was approving 1, 2001, so deadline a of entered on the for notice filing August 31, the of was 2001. Once notice Friday, appeal August again, 6 28, note that a of an order entered the on We circuit court December copy A to U.S. Bank’s to Milburn’s to its is attached Exhibit response supplement court Bank’s order, motion dismiss In that the circuit denied U.S. motions appeal. summary-judgment the orders and the reconsideration of class-certification and appointing order a receiver. 4(b)(2), if a is filed Even under Ark. R. P. —Civ. notice of App. appeal prior denial motion the of the who seeks to from the of the motion, disposition party appeal 3(e). must the filed notice so with Ark. R. amend as to P. —Civ. comply App. previously 4, 2001, filed on was outside September clearly pre- appeal For the stated in scribed deadline. reasons thirty-day previously connection with U.S. Bank’s of class-certifi- attempted appeal conclude from the cation we bank’s order class-action notice before this court. approving properly
Order Receiver Appointing For its third on point argues appeal, circuit erred in a receiver R. Ark. appointing Civ. P. 66(a) (2002). We start that an by noting interlocutory a receiver is immediately SeeArk. R. appointing appealable. However, P.—Civ. 2(a)(7) (2002). App. failed to file its record with our clerk. timely untimely of filing record bars the procedurally appellant pursuing See View, Mitchellv. Mountain City S.W.2d of 7, 2001, 556 (1991) curiam). On (per the circuit court September entered an order the circuit clerk to act as a directing receiver in this case. U.S. Bank filed a notice timely October 2001. that when Appellate 5(a) “an provides is taken from an order under Rule interlocutory the record 2(a)(6) (7), must filed with the clerk Court within Supreme thirty (30) from the such order.” Ark. days entry R. P.—Civ. 5(a) (2002) added). (emphasis
The instant interlocutory receiver appointing Thus, was entered on 2001. September deadline for filing 9, 2001, the record was October which to be the same happened that U.S. Bank filed *9 day its notice of Bank U.S. did not appeal. file the record with this until court December 2001. By failing record, file the timely barred this pursuing on point SanctionsUnder
Request Rule 11 Appellate for oral At Milburn’s argument, counsel asked court this to sanc- tion to Rule 11 of the Arkansas Rules of Procedure —Civil: Appellate think
I the act of claiming this to be a final judgment has caused me and client considerable in my harm this . . . case final [T]he it. knew they Everybody final and knew never was a order order
it, it as filed the it. admitted as soon they They they and admitted trial court contend- were back before the They notice of appeal. it did determine damages. it was not a final because ing course, a them. not certified as determined It was it never Of defendants, these I this not to permit order. ... ask court final this they in brought up, of the manner which because in didn’t raise they in the that litigation . . . issue future any raise having to award for to respond I ask the court costs litigation. this an .... argument that such a request U.S. Bank’s counsel by suggesting responded there an filed in order for to be that a motion be would require both sides. for of a full explanation by presentation opportunity in relevant Rule part: provides Appellate a shall impose Court or the Court of (b) Supreme Appeals or con- (1) a or or both for upon attorney taking sanction party (2) a initiating proceeding, a or frivolous tinuing frivolous appeal motion, brief, of subdivision a or other violation paper filing rule, delay this of (3) purposes of (a) prosecuting 6-2 of the Rules Court Supreme violation or that (4) act of commission omission Court of any Appeals, cause as to harass or to unneces- has an such purpose, improper in the For litigation. pur- or needless increase cost sary delay rule, is one that has proceeding of this a frivolous appeal poses or factual Basis. legal no reasonable be Sanctions may Ark. R. P.—Civ. 11(b) App. in Ark. of this rule are identified R. for violation App. imposed P— 11(c): Civ. rule be for violations of this (c) may imposed Sanctions
include, to, a but dismissal of the appeal; striking are not limited brief, motion, costs and awarding or other actual paper; expenses, fees; including attorneys’ penalty payable reasonable imposing court; attributable to the or mis- awarding delay damages conduct; and, there the case on advancing where has been delay, affirming. the docket and on its initi- If own 11(c) (2002). R. P.—Civ. App.
ative that a sanction show-cause determines may appropriate, R. P.—Civ. 11(d) (2002). be issued. Ark. matter, noted, Bank filed its the instant already from the class-certifica- notice of (1) September *10 notice; and order; (3) the class-action the order (2) tion approving Then, in a plead- the order summary judgment. granting partial Bank U.S. the circuit court on filed with September ing on the states, of fraud or insolvency has been no proof “[t]here its Bank that would endanger capacity respond of US part case.” In that be entered in this final which may any judgment receiver, Bank of a U.S. same appointment pleading opposing trusts, states, in the of which holders of beneficial interests “[t]he trustee, if a receiver is Bank is will be US damaged appointed, for, contracted even will not receive the since they they payments entered.” on each claim has not been monetary judgement though Bank asserts that In a memorandum filed on the same U.S. day, that it is to hide its assets to them is no going put danger “[t]here will not of a final and that “the Plaintiffs reach judgment” beyond before, their as but that be losing anything by continuing payments be; all this before a final determina- the trust beneficiaries would the amounts that be due.” tion of might 27, 2001, Milburn filed a motion to dismiss
On September motion, Milburn that the in this court. In that alleges notice of to the class-certification untimely respect order and the order the class-action notice. Milburn approving sum- also asserts in her motion that from partial dismissed, order should be mary-judgment ruling it final circuit court is not a final and was not certified as to Rule of the Arkansas Rules of Civil Procedure. 54(b) motion, to the first that the contending par- responded tial was final because the remain- summary-judgment only Moreover, “collateral and issues were ministerial.” U.S. ing and the order that both class-certification order suggested the class-action notice were as intermediate appealable approving 26, 2002, brief filed on orders. its Finally, reply April Bank conceded that the order is not a summary-judgment However, final order. Bank continued to assert its appealable as basis for “impact theory” final, for a to be it must dismiss the judgment action, court, them or con from the
parties discharge clude their matter in subject controversy. Kelly rights have on numer 835 S.W.2d We Kelly, ous held that a or order is not final and occasions decided. if the issue of remains to be damages Sevenprop appealable *11 155-A Harrison, 35,
Assoc. v.
295 Ark.
From the record before this it that U.S. appears Bank was arguing partial summary-judgment final, order was while at the same time in the circuit court arguing Milburn, that no final order had been entered. Additionally, her motion to dismiss the notified Bank as through appeal, 17, 2001, was not early September properly before this court. Because U.S. continued to prosecute instant we conclude that be sanctions appeal, appropriate. Pursuant to Ark. R. P. —Civ. we order U.S. Bank 11(d), counsel its to show cause in a sanction should not writing why them. Such shall be filed later than no imposed against writing seven after the date of this If U.S. Bank files a writ days opinion. Milburn shall have four ing, days respond. dismissed; motion to dismiss moot.
Appeal Rule 11 Sanctions Supplemental Opinion Imposing
155-B *12 155-C *13 Garrett, Firm, III,
The Rose Law Herbert C. Rule Garland by: and for Stephen-Joiner, appellant. Drummond, McMath, Vehik, and Harrison & Holifield Joe P.A., Vehik,
Lebdetter, Mart for by: appellee. In we issued our on this appeal, opinion Curiam. 28,28, 2003, wherein we dismissed a set of inter- February Per Bank from a Rule 23 class- U.S. by stemming locutory appeals Milburn, 144, Ark. action U.S. Bank v. 100 proceeding. did so because the notice of filed U.S. S.W.3d 674. We appeal to the class-certification order and Bank was untimely respect notice, and Bank conceded the order class U.S. eventually approving and, order was not a final order that summary-judgment partial thus, that U.S. Bank also admitted no not properly appealable. was taken from the circuit court on its motion any ruling by and reconsideration of the class-certificadon sum- requesting of an orders. interlocutory mary-judgment Finally, receiver, of the record untimely filing proce- appointing barred Bank from that on U.S. durally pursuing point out that U.S. Bank continued prosecute Upon pointing it from the record before this court even though appeared appeal,
155-D Bank U.S. was arguing partial summary- final, order was while at the same time judgment arguing entered, circuit court that no final order had been we concluded sanctions under Rule 11 of the Arkansas Rules of Proce- Appellate dure —Civil be Pursuant to Ark. R. P.— might appropriate. App. Civ. we directed 11(d), U.S. Bank and its counsel to show cause in them, a sanction should not be writing why and we imposed against also allowed Milburn to Both U.S. Bank and Milburn respond. have filed their writings.
In
cause,
its
to the order to
response
show
three reasons
First,
sanctions are
posits
why
inappropriate.
Bank asserts that it had a
belief that the
good-faith
partial summary-
order was final and
it maintains
appealable. Specifically,
that a trial court’s order need not
establish the amount of
always
in order
for
order to be
damages
final and
appealable.
Bosnick,
directs
45,
this court to
v.
306 Ark.
Pledger
The test of
finality
an order
appealability
whether
the order
execution,
court’s directive into
puts
ending
or a
litigation
Bosnick,
branch of it.
separable
306 Ark.
Pledger
45,
155-E Services, Inc., defendants), and the other Bank, &Title Real Estate final as the summary judgment did not partial the circuit court certify and Furthermore, Rule 23 class Milburn’s P. 54(b). to Ark. R. Civ. the by of monetary damages provided relief in the form action sought order did The summary-judgment laws of Arkansas. usury In execution. make it enforceable by so as to decide the issue of damages the of contrast, v. Bosnick recovery sought the class members Pledger Arkansas, not damages.1 of monetary collected the State funds by illegally Ark. Pro 341 Likewise, in Ives Co. v. Transportation, reiterated Trucking as we matter that 600, fees is a collateral 735, the of award attorney’s 19 S.W.3d the order. underlying does not affect appealability to a a landowner’s claim case involved The Hartwick Hill, Ark. Hartwick v. 77 App. across a roadway neighbor’s property. 185, trial court’s order 15 adopted 73 S.W.3d examine the land who had been of the viewers appointed report the location of described the location of the roadway, and out lay a to conduct ordered the Hills survey to be granted, roadway and estab of the roadway, the land to determine acreage precise $6,000 in the amount of would incur damages lished that Hartwick Arkan Id. The due to the loss of the land for roadway. acre per future action by held that the contemplated sas Court of Appeals acreage court’s order survey reflecting precise trial (obtaining $6,000 formula that was acre in the per roadway applying to the main issues was collateral the court as damages) ordered by — entitled to a that the Hills were roadway decided the court by to be the amount of the Hartwick’s land and damages paid. across Hartwick, at set out no the order issue here Id. Unlike the order in the amount of or as to damages. formula specifics Smith, 20, 51 Ark. 907 S.W.2d in Smith v. Finally, accrual 755, characterized correctly the Arkansas Court Appeals instant case matter. The as a collateral of interest on judgment on a an order to interest judgment. does not concern pay sum, Bank undermine the cases cited none of order is not final that a appeala our holdings judgment prior decided. Tri-State Delta remains to be ble if the issue of damages 172; Crow, Ark. 61 S.W.3d Chemicals, Sevenprop Inc. v. wrongfully collected. sought illegal-exaction case is return of taxes in an “What A is not entered.” that the taxes be refunded. Relief be an order personal omitted). (2002)(citations Rogers, 89 S.W.3d Worth City of
155-F Harrison, 51; Assocs. v. 295 Ark. 746 S.W.2d Cheeseman John 69 (1991). Inc. v. 305 Ark. 805 S.W.2d Trucking, Dougan, Indeed, that U.S. Bank conceded summary- eventually partial not final. we must order was judgment Accordingly, disagree faith, in U.S. Bank’s that it acted in when fact it assertion good waited until the last to abandon that on moment possible point appeal.2
Next, U.S. Bank that it did make asserts inconsis tent before this court and the circuit on the court issue arguments It to filed three in the finality. points excerpts pleadings However, circuit court U.S. Bank notice after filed its of appeal. in each of trial those U.S. Bank that the court excerpts, suggests states, had not entered a final first judgment. excerpt “[t]here is no that to hide its assets to danger going put [U.S. Bank] them the reach aof final beyond In second judgment.” U.S. Bank states that all loan class excerpt, members payments by should continue to be made to U.S. Bank “before a final determi nation of the amounts that due.” U.S. Bank might Lastly, directs us to the in its to Milburn’s following language response motion for receiver filed in the circuit court: There has been no of fraud or proof on insolvency part would its endanger capacity to respond any final which be entered in judgment this case. The plaintiff, by receiver, her is, motion appointment in effect, execu- seeking levy members, tion in class establishing whatever beforefinal favor of are, their rights entitlements has been entered. We added.) find that (Emphasis this is in accord with our language where we stated “it opinion U.S. Bank was appears arguing final, that the order was summary-judgment while at the time same in the circuit court that no final arguing order had been entered.” For last its of Rule argument against imposition
sanctions, U.S. Bank maintains it acted in faith good proposing good-faith With to the argument, U.S. Bank also asks this court respect consider documents outside record. suggests that Milburn made Essentially, arguments inconsistent on the issue of court, before court and the lower which finality caused prosecuting U.S. Bank to continue We do not consider matters outside appeal. the record on Black 333 Ark. 970 S.W.2d Steenwork, any nothing event, argued the record indicates that Milburn circuit that the judgment was a final order. partial summary
155-G
The
for the
as the basis
appeal.
theory”
the so-called “impact
and losing
a
argument
that
states
making
good-faith
bank
contended on
appeal
sanctions. Essentially,
for
grounds
—
orders
class-certification
such as
orders
that interlocutory
immediately
that are
appeala-
notices
class-action
orders approving
(cid:127)—
become
2(a)(9) may
P.—-Civ.
to Ark. R.
ble
App.
pursuant
order
of any subsequent
later time when
entry
at a
appealable
theory”
Under
pro-
orders.
“impact
those prior
“impacts”
the circuit
Bank,
a
is not from ruling by
appeal
by
posed
rather,
order;
it is
aof
subsequent
court on
alleged “impact”
that would auto-
an
of such
assertion on
“impact”
the mere
time. In other
at any
order
make a
appealable
matically
previous
cir-
before the
words,
U.S. Bank attempted
prosecute
the issue. Such
to rule on
pro-
had an
cuit court
opportunity
Procedure—
our Rules of Appellate
is not
by
supported
position
we will not address
Moreover,
clear that
case law is
our
Civil.
Ark.
v.
Jones,
the first time on
issues for
appeal. Jones
Bank acted
Thus,
that U.S.
we cannot agree
728 (2002).
S.W.3d
the so-called
theory.”
faith in
“impact
in good
proposing
Milburn
we
with
on the foregoing,
agree
Based
to Ark.
be sanctioned
and its counsel should
U.S. Bank
set of
11. The interlocutory
appeals prosecuted
P.—Civ.
R. App.
Mil-
Bank v.
dismissed. See U.S.
has
been
already
by
addition,
we determine
bum,
674. In
100 S.W.3d
352 Ark.
award of costs
would be the
circumstances
sanction in these
fair
them to
for
fees to
requiring
and reasonable attorney’s
appellees
Ark. R.
P.—Civ.
this
See
forward
defending'
go
Hubbs,
(2001);
Ark.
Rule dissent. JJ., Hannah, Thornton I dissent. I dissenting. respectfully Justice, Hannah, 11 sanctions should withwith thethe majority’s majority’s holding disagree disagree case. case. inin thisthis bebe imposed Jim
155-H that it had a Bank’s dismisses U.S. argument The majority summary belief that the trial court’s granting good-faith held that order. The was a final and majority appealable that a trial the bank in of its all the cases cited argument support the amount of court need not establish damages always be final and were order to inapposite. appealable from the the cited cases majority distinguishes present cited in the It for this court to cases case. is common distinguish brief from the case at hand. We often disagree par- parties’ ties’ contentions that the cases cited in their briefs are on point *17 the case before the court. with the Our disagreement par- ties’ not contentions does warrant sanctions. did
The
also notes that
trial court
not
majority
certify
final
to Ark.
P. 54(b).
as
R. Civ.
partial summary-judgment
pursuant
it is true that the bank did
to obtain
certifi
While
not attempt
partial
court,
cation from the trial
a review of our case law indicates that we
have not
Rule 11 sanctions when we have not addressed the
imposed
merits of an
due to a
failure to have a
certi
party’s
judgment
Chavers,
See,
fied
to
v.
Ark.
Rule
Fisher
351
54(b).
e.g.,
318,
Inc.,
Stores,
judgment was not final. must Accordingly, disagree faith, with U.S. Bank’s assertion that it acted in in when good fact it waited until the last moment to abandon that possible point added.) on appeal. (Emphasis The to be that if Bank had main- majority appears implying tained until the end that it believed the partial summary judgment order was a final then there would be no Rule 11 judgment, sanctions.
Counsel was officer of court in acting in brief that the its was admitting reply partial summary judgment not a final order. Are we sanctions because counsel was imposing
155-1 as an with this court and honest and candid properly acting being is of the court? majority sending wrong message officer the bar. filed be that Milburn a motion
It should noted previously was not because the dismiss summary judgment partial order, declined to rule on that a final and this court appealable- frivolous, and if it was so clear that the motion. If the was not a final order was summary appealable have Milburn’s motion to dismiss? would not this court granted in part: provides, brief, or other in the (a) The motion filing paper . . a certification of the or Court . constitutes Supreme party that, his information and to the best of attorney knowledge, after the document is well belief formed reasonable inquiry, fact; is warranted law or a faith grounded by existing good extension, modification, for the or reversal of existing argument law; and is not filed for an such as to harass or improper purpose in the liti- to cause or needless increase cost of unnecessary delay A or an who files a in violation of attorney paper gation. party filed, rule, on whose behalf the is party paper subject with this rule. a sanction accordance (c) Sanctions that for violations of this rule imposed include, to, but are limited of the striking dismissal appeal; *18 brief, motion, actual and or other costs paper; awarding expenses, fees; reasonable a attorneys’ including imposing penalty payable court; attributable to the or mis- awarding damages delay conduct; and, where there has been the case on delay, advancing the docket and affirming. A motion that a be (d) may by sanction party request rule, another or to this or imposed upon party attorney pursuant a sanction on its own initiative. A motion may impose be in the form Rule 2-1 of the Rules of the by shall required Court and Court of with citations to the Appeals, Supreme record where and will be called for submission three appropriate,
weeks after the ... If the court on its own initiative deter- filing. that a be may mines sanction court shall order appropriate, in or to show cause a sanction party attorney writing why not be on the or both. attorney should imposed party P— 11 (2002). R. Civ. It be noted that Milburn’s counsel that sanc- should argued bank, alia, be on the inter because the bank tions should imposed
155-J rules, i.e., violated to obtain the trial court’s failing procedural order, certification of to partial summary judgment however, Milburn’s counsel failed to follow 54(b); procedure in sanctions. Motions to sanctions must com- requesting request with Rule 2-1. Rule 2-1 in ply provides, part, “[a]ll motions must be and that cases before writing,” pending “[i]n Court, (8) must be filed eight Supreme clearly legible copies . . . .” Ark. Ct. R. 2-1 While it is true that this Sup. court on its own initiative determine that sanctions are appro- and issue a show-cause there is in the priate record nothing court, to indicate that this to oral Milburn’s prior by request counsel, determined that sanctions bemay appropriate. At oral argument, took between following colloquy place the court and counsel for Milburn: ... I would like to address one more
Counsel for Milburn: before we leave. I think thing the act this to claiming be final judg- ment has caused me and client my harm in great this case. . . . What have they gained the process? one, Number it is a final claiming what judgment, have I they gained is had to to it. . . . respond man- They aged get before is, court. The next thing because summary crucial.... I spent huge amount time So, to that. responding ... they have now heard what I am to do. going it, They have taken advantage they gain a false claim advantage by that this is a final I am judgment. going ask court to dismiss this or, case with in the alterna- appeal, tive, that they prohibited raising new any should arguments they bring this case up again,1 *19 for the time and pay I had to money to spend responding something they 1 I majority’s holding note that the does not address the issue of whether U.S. Bank raising will be argument new should the bank file a precluded any subsequent appeal.
155-K to when
knew were they going drop . . it was all over. . a seem to be Rule raising You Brown: Justice rules. under the appellate violation I is what am exactly suggesting, Milburn: That Counsel for inherent authority but this court has that, well, I believe. to do Bank’s Later, from U.S. the court requested response counsel. He What to that? response Brown:
Justice that there is no said question a final order knew it was not you certi- 54(b) and there was Rule has him to the fication. That put to an having reply expense Well, say, your U.S. Bank: I would first Counsel for honor, I believe such a would a motion
request require for opportunity presenta- tion of a full both explanation by sides us response. * * * Your on the sanction response Glaze: Justice rule, then, is this has not been you today? posed prior Yes, correct, that is I believe your U.S. Bank: Counsel
honor. such, that the court sanctions. As Milburn impose requested have with Rule 2-1 submitted Milburn should complied bank. on the motion sanctions should why imposed explaining Instead, sanctions. 2-1 and Milburn orally requested ignored which was raised at oral After Milburn’s oral hearing request, Bank, bank, court, notice to the without argument Milburn, N.A., al., et 100 S.W.3d ordered 352 Ark.
155-L counsel a sanction its to show cause writing why not be them. should imposed against addition, the it
In
the bank’s
that
rejects
majority
argument
acted in
faith in
as
so-called
good
proposing
“impact theory”
a
the basis for
The bank
that
argues
making
good-faith
is not
I
for sanctions.
Crock-
argument
losing
grounds
agree.
Wilson,
Brown,
ett
&
P.A.
S.W.2d
(1995),
court discussed
of Rule 11.
stated:
We
requirements
. . . Rule 11 does
require
not
that the
in a
legal theory espoused
The essential issue whether
filing prevail.
of the
signatories
document fulfilled their
of
duty
reasonable
into the rele
inquiry
law,
vant
and the
indicia
reasonable
into the law
inquiry
include the
plausibility
legal theory
and the com
espoused
Lato,
of the issues
plexity
raised.
Inc. v.
&
Holdings,
Wright
CJC
Inc.,
(5th
Throughout the bank that a there was appeal, argued question about whether an been had entered appealable trial by court. At oral the bank’s counsel stated: argument, ... that struggle question ourselves and with counsel [W]e Minnesota,
for U.S. Bank from as to whether that was a final Well, was, order. We talked .... what had in we mind if it were order, a final we had better it. appeal cause, In its to the order to show bank response stated that, order, that there was a final it determining reasonably and, order, relied on law “it . existing by . . appealing — avoided the faced Bank if did it it trap by would barred from further issues or any of law fact litigating by the order.” The determination that failing majority’s sanctions were in the case could have proper far-reaching present effect on the role an attorney’s advocate his or her client. In case where an is unsure about the of the attorney finality is he or she now to be faced with the choice either: going (1) final, of an order which not be filing court; file an (2) failing sanctions thereby risking *21 final, which indeed be may thereby risking of an order an from a client who loses right action appeal? malpractice case, the acted an advocate bank’s counsel the present course, or not shield himself his client. Of attorney as an or she was herself from sanctions that he stating merely acting Indeed, be that sanctions may advocate. Rule provides both for or continuing or counsel or taking party imposed upon However, friv- “a a frivolous for the purposes no or is one that has reasonable legal olous proceeding case frivolous. was not factual basis.” The appeal present was a indicates that there The issues the record were complex, I order. finality agree reasonable concerning question with the bank that sanctions should not imposed. reasons, I dissent.
For the foregoing respectfully Thornton, this dissent. J., joins v. Honorable David S. CLINGER Chad GONDOLFI 98 S.W.3d CR 02-828 of Arkansas Court Supreme delivered February Opinion