Availability of Civil Appeals in Arkansas

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Civil appeals can be complex, and not every circuit court decision can be appealed. Rule 2 of the Arkansas Civil Rules of Appellate Procedure governs what matters may be appealed to the Arkansas Supreme Court from the circuit court.

The Rule provides for 13 different decisions of the circuit court that may be appealed to the Arkansas Supreme Court as a matter of right plus one additional action that may be appealed with the permission of the Supreme Court. (In a future post, I will discuss what civil appeals will be heard by the Arkansas Court of Appeals rather than the Arkansas Supreme Court.)

Civil Appeals by Right

The following items may be appealed to the Arkansas Supreme Court as a matter of right:

1. Any final judgment or decree entered by the circuit court may be appealed to the Supreme Court. Finality is critical here, as the appeal of non-final items—except where a special exception exists in the rules—will be dismissed without prejudice for lack of subject matter jurisdiction.
2. An order that effectively determines the outcome of a lawsuit, thereby preventing final judgment from which an appeal may be made. In the same vein, any circuit court order that effectively discontinues a lawsuit may be appealed.
3. An order that grants or refuses to grant a new trial.
4. An order that strikes out an answer or any part of an answer to a complaint. Likewise, an order that strikes out a pleading or any part of a pleading may also be appealed. Since the pleadings are the basis on which the entire suit is built, the rules allow for the appeal of any court order striking them out, in whole or in part.
5. An order that vacates or sustains an attachment or garnishment.
6. An interlocutory order by which an injunction is granted, continued, modified, refused, or dissolved. Likewise, the refusal to dissolve or modify such an injunction can also be appealed.
7. An interlocutory order appointing a receiver or refusing to wind up a pending receivership may be appealed to the Supreme Court.
8. An order disqualifying an attorney from further participating in a case may be appealed to the Supreme Court. Since the attorney plays a critical role throughout the case, it makes sense that an order disqualifying an attorney be subject to appeal. It would be hard to correct the potential injury of such a disqualification if an appeal were not available until after the case had been concluded at the lower court level.
9. Because certification of a case as a class action affects the entire proceedings of the case, an order granting or denying a motion to certify a class is subject to appeal. As way of analogy to the federal system, the well-known Wal-Mart Stores, Inc. v. Dukes heard by the United States Supreme Court addressed whether a sexual discrimination suit against Walmart should be certified as a class action. It did not address the actual merits of the claims brought.
10. As a special protection for the state and its officials, any order denying a motion to dismiss or for summary judgment on the basis of the defense of sovereign immunity or the immunity of a government official may be appealed.
11. When the circuit court has directed entry of final judgments as to some but not all pending matters with the expressed determination that there should be no delay in allowing for an appeal, despite the remainder of outstanding issues, those orders on which final entry has been entered are subject to appeal. This issue can be a little confusing, so I will discuss it further in a future post addressing Rule 54(b) of the Arkansas Rules of Civil Procedure.
12. Any order that the Arkansas legislature has provided as appealable. Some applicable statutes include Ark. Code Ann. §§ 16-108-219, which allows for the appeal of orders denying a motion to compel arbitration, and 28-1-116, which allows for civil appeals of most orders in probate cases.
13. An appeal of an order of contempt, so long as the order imposes a sanction and constitutes the final disposition of the contempt matter. If there are no sanctions, the matter is not appealable. Postponed sanctions, however, are generally appealable.

Discretionary Civil Appeals

Orders compelling discovery may be appealable at the discretion of the Arkansas Supreme Court “when the defense to production is any privilege recognized by Arkansas law or the opinion-work-product protection.” As the comments to the Rule point out, this discretionary appeal recognizes the fact that privileged information cannot be re-hidden once revealed. The nature of the Rule, however, means that the Court is free but not required to accept the appeal.

Those seeking the Court’s permission to appeal such an order must file a petition for permission to appeal with the Supreme Court within 14 calendar days of the lower court’s order. In deciding whether to allow the appeal, the Supreme Court will consider the following factors. These are quoted directly from the Rules.

1. The need to prevent irreparable injury;
2. The likelihood that the claim of privilege will be sustained;
3. The likelihood that an immediate appeal will delay a scheduled trial date;
4. The diligence of the parties in seeking or resisting an order compelling the discovery of the circuit court;
5. The circuit court’s written statement of reasons supporting or opposing immediate review;
6. Any conflict with precedent or other controlling authority as to which there is substantial ground for difference of opinion.

The petition for permission must address these factors specifically, and the other party may file a response to the petition. It is important to note, however, that if the Court decides to allow the appeal, it does not necessary mean that the lower court’s order will be reversed. The appealing party will simply have the opportunity to argue its case to the appellate court.

Also important to note is the Supreme Court’s concern for potential delays at the circuit court level, and so the filing or granting of the petition for permission will not result in any delays to scheduled proceedings unless specifically ordered by the circuit court or the Supreme Court.

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Sources:

Rule 2, Arkansas Rules of Appellate Procedure—Civil

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See Also:

How to File a Civil Appeal in Arkansas

Petitions For Review