Bad Answer! On Making Sure Defendants in Civil Cases Properly Respond to the Allegations in the Complaint
I’m looking forward to reading the article discussed in “A Non-Frivolous Challenge to Frivolous Defenses”, a new post at Jotwell, a legal blog that I suspect is going to become one of my favorites. Without getting too nerdy, the piece discusses a recent law review article about the various ways that defense lawyers in civil cases, such as Arkansas personal injury cases, employment discrimination cases, and insurance claims, try to get around actually responding to the allegations plaintiffs make in their complaint.
Here’s how a civil case goes, in very general terms: A lawsuit usually begins when the plaintiff files a document called a complaint. It sets forth the plaintiff’s factual claims and the legal theories for why he should prevail. Then, the defendant files an answer, a responsive pleading that is supposed to make clear what facts in the complaint the defendant agrees with and which they don’t; defendants also list any relevant defenses that support their case. Then begins discovery, motions for summary judgment, perhaps alternative dispute resolution, settlement, trial, etc.
Much of the planning for the rest of the case is figuring out which facts the parties actually agree on, which are in dispute and which are not, and what effect that has on your likelihood of success. Unfortunately, many defendants submit answers that simply don’t meet respond as fully as they are supposed to. And many times it goes unaddressed.
While it’s not the stage where either sides’ attorneys will spend most of their time, the initial complaint and answer are crucial. And, when representing plaintiffs, making sure defendants provide the information your client is entitled to have is an extremely important but sometimes underappreciated step. I’ll be giving the article a look for any ideas that I can work into my practice.
The Basics of an Appeal
“The case is on appeal.”
“We’re going to appeal the judge’s ruling.”
“We won our appeal!”
We’re all heard some version of these phrases. But what exactly is an appeal, and how do appeals work?
What Is An Appeal?
We have a court system composed of higher courts and lower courts. The lower courts are generally where cases start, and the higher courts review those decisions. For instance, let’s say you’re charged with a crime in Arkansas state court, such as, say, drug possession, disorderly conduct, terroristic threatening, etc. Or perhaps you file for divorce. Your case would be heard in an Arkansas circuit court.
If your case was in federal court, such as a Title VII discrimination case, a lawsuit against an insurance company, a Fair Labor Standards Act case, etc., it will often be heard, in the first instance, by a federal district court.
Federal district courts and state circuit courts are often called “trial courts”.
Often (in fact, roughly half the time), a party is dissatisfied with a ruling made by a trial court. An appeal is the process by which a party tries to have a higher court, such as the Arkansas Court of Appeals or Supreme Court of Arkansas (state court) or U.S. Court of Appeals for the Eighth Circuit or U.S. Supreme Court (federal court), review a decision by a trial court.
How Does An Appeal Begin?
On both the state and federal levels, a litigant looking to pursue an appeal must file a Notice of Appeal. A Notice of Appeal is a written expression of intent to the parties in a suit and the trial court that a party will be seeking appellate review of the trial court’s decision. Usually, a Notice of Appeal is filed after the court enters a final order disposing of the case, like a judgment entered after a verdict or an order granting a motion to dismiss. However, sometimes parties may pursue an Interlocutory Appeal, by which they can seek a review of an order that doesn’t end the case but is important enough that the appellate court will review it anyway. For instance, police defendants in a civil rights excessive force cases have the right to appeal a decision granting them qualified immunity.
Typically, a Notice of Appeal must be filed within 30 days of the order for which a party is seeking review.
Then, the appellant orders the trial court record, which will generally consist of the docket sheet, transcripts of all hearings, the court’s written orders, exhibits entered into evidence, and the parties’ filings. These documents and things make up the record on appeal. Though the parties’ written briefs and, if applicable, oral argument (both of which are discussed below), are what the parties use to establish their legal positions and provide the appellate court with the parties’ version of the facts of the case, the record is what appellate courts use to determine what happened at the trial court level—wjat the parties filed, what they argued, how witnesses testified, etc.
The Parties’ Arguments
After receiving the record, the court will set a briefing schedule that sets forth when the parties will submit their written appellate briefs. An appellate brief is a written submission to the court in which a party sets forth the facts of the case, discusses relevant authority, and provides the court with what it believes are the reasons why it should rule a particular way. In general, the appellant, who initiated the appeals process and would like the appellate court to change the trial court’s ruling in some way, will point out what they believe to be mistakes made by the trial court and provide the appellate court with legal bases to reverse the lower court’s ruling(s). On the other hand, the appellee usually simply wants to preserve its win, and typically spends most of its brief trying to swat down the appellant’s arguments and otherwise support the trial’s court’s ruling.
In most cases, the appellafe court will be able to make a decision solely from a review of the record and of the parties’ briefs. However, sometimes that isn’t enough. For instance, occasionally a case presents a new issue that the court has not dealt with before. Or perhaps after considering the briefs, the judges deciding the case think of questions that would be best answered by the parties themselves. When this happens, the court will set the case for oral argument. Oral argument is a discussion between the parties’ attorneys and the judges who are deciding the case. It is intended to clear up any questions the judges may have, explore any significant issues, or have any points of confusion cleared up before a ruling is issued. Most cases are affirmed. But if the appellate court requests oral argument, it usually means the court is at least thinking about reversing.
Who Decides the Case?
At the trial court level, an issue usually decided by a single judge. By contrast, an appeal is heard by a group of judges. Some courts, like the Arkansas Court of Appeals, decide cases in groups of 3 judges (known as a “panel”), and only increase the size of the group deciding a case under certain circumstances. Others, like the U.S. Supreme Court and Supreme Court of Arkansas, decide each case according to a vote of all the members of the court.
The Decision
After the parties have submitted their briefs and, as applicable, had oral argument, the court will decide the case. The judges will have a discussion, take a vote on whether to affirm or reverse, and draft and file the opinion. Depending on such factors as the complexity and difficulty of the case, a decision might be released a few weeks after being submitted to the court or take a few months. Some special classes of cases, like certain election challenges and death penalty cases, are heard and decided within a much shorter timeline.
There are two basic rulings an appellate court can make. As mentioned above, the more common result is an affirmance. When a court affirms, it holds that the issues the appellant identified did not justify changing the trial court’s ruling, and therefore leaves it in place. For instance, if a verdict went against the defendant, they appeal, and the appellate court affirms, that means that the verdict in favor of the plaintiff remains in force.
On the other hand, if the court reverses, that means that it decided that some error was severe enough that the trial court’s decision cannot stand. For instance, if a defendant who loses a jury trial wins their appeal, the reversal by the appellate court might require the trial court to either enter an order in favor of the defendant or have a new trial.
Often, the party that loses the appeal will make a request for further appellate review. For example, in courts where cases are heard by panels of 3, parties may request that a larger group of judges or the full court take a look at the case. In cases where the court hearing the appeal is not the highest authority on a particular matter, parties can also seek review from a higher court, like the U.S. Supreme Court in cases from U.S. Courts of Appeals or state supreme courts.
If such a request is granted, some version of the just-completed process begins again. If not, the appellate stage on the case is done.
Conclusion
This is obviously just a bird’s eye view of the appellate process. However, hopefully you’ve found it useful. If you have a case that is on appeal or seems like it’s headed that way, you are well served to consult with an Appellate Attorney as soon as possible. Contact our firm by phone, email, or our contact form if you would like your case evaluated.
Giving Thanks for This Legal Blast from the Past
As you deal with that turkey that just won’t come to temperature, the dressing that just won’t firm up, or the sweet potatoes you just don’t feel like peeling and cutting up, remember that things could be worse. You could be H.S. Nolen, a Texas turkey farmer whose birds were run over by a negligently conducted train in the late 1930s. Though a lower court granted him damages based on what he would have made on the turkeys at Thanksgiving, a Texas appellate court reversed, stating that because the turkeys were killed in August, he was entitled only to the value of the turkeys at that point in time:
Did the court err in submitting to the jury the Thanksgiving market value of the turkeys instead of the market value at the place and time in which they were killed? We think so. The rule for measuring damages for the loss of personal property is: (1) Its reasonable market value at the time and place where the property was destroyed; (2) if there be no market value of such property at such time and place, then the actual value of the property, or what it was worth to the owner. The jury found, on disputed evidence, that there was no market value of the turkeys in the local market at Greenville on August 13th, though there was direct evidence showing that there was such market value and that the turkeys, lost to appellee, based on such market value, would be about $6. There was no evidence showing the actual value of the turkeys to appellee at such time and place, or showing their value to their owner.
Texas N. O. R. Co. v. Nolen, 107 S.W.2d 1116, 1117-18 (Tex. App. 1937). The court therefore remanded for the question of damages to be re-examined. Ironically, Farmer Nolen likely couldn’t help but think that this decision was for the birds. Hopefully it didn’t gobble up all of his expected turkey profits. But I’ll stop here before you find me guilty of stuffing too many puns into this post.
Happy Thanksgiving!
Court of Appeals Affirms Change of Custody Due to Custodial Parent’s Bad Acts
Case: Brand v. Brand, 2020 Ark. App. 505
Trial Court: Jackson County Circuit Court (Judge Tom Garner)
Issue: What level of conduct by a custodial parent is sufficient to: 1) Support a finding of a material change in circumstances, and 2) Support a change of custody in favor of the noncustodial parent?
Holding: The incidents relied on by the trial court, namely a physical attack by the mother against the father, an extremely questionable claim of abuse leading to a DHS investigation, and consistent disregard for the father’s visitation rights as established by the visitation order, all of which contributed to the conclusion that the mother was no longer the proper parent to have primary custody, supported a finding of a material change of circumstances and a change in custody.
Summary:
Julia and Michael married in 2008, had a child, M.B., in 2010, and divorced in July 2016. Julia was awarded custody. Following the divorce, Julia and M.B. resided in Newport (where Michael’s family also lived), and Michael lived in Fayetteville.
Michael filed a motion to modify custody in June 2018. The court held a final hearing on the motion in May 2019. Michael’s case, which included testimony by him, his sister, M.B.’s school counselor, and a witness of one Julia’s instances of ill conduct. In addition to herself, Julia put on testimony from her adult son and her business partner/former brother-in-law. Michael’s witnesses stated the following:
M.B.’s parents have had problems getting on the same page and Julia is hostile toward Michael;
Julia has refused to provide Michael with a schedule of M.B.’s activities, which hinders Michael’s ability to either attend M.B.’s activities or make sure the child gets to them when they are together;
Julia appears to discourage M.B. from having a relationship with his father’s family, despite the fact that they see each other around Newport and attend the same church;
Julia, apparently under the mistaken belief that Michael had gone over his visitation time, confronted Michael at his cabin, spat in his face, and struck him. As a result of this incident, which M.B. witnessed at least some of, Julia faced criminal charges.
A gun misfired while M.B. and Julia were on a hunting trip. Despite the fact that this seems to have caused damage to M.B.’s ears, Julia resisted Michael’s efforts to seek medical treatment for the boy.
Julia reported Michael to DHS for alleged abuse, the investigation of which included an invasive physical examination of M.B. by a DHS employee. The agency concluded that the abuse charge was unsubstantiated.
M.B. has behavioral issues that have gotten worse since his parents’ divorce and that he was in a crucial point in his development.
Julia’s case generally was directed at mitigating the impact of the evidence offered during Michael’s case and offering evidence of Michael’s flaws.
The circuit court ruled in favor of Michael:
[The court issued an order finding] that there had been a material change in circumstances since Michael and Julia’s divorce and that it was in M.B.’s best interest to modify custody to Michael. The court stated that the material change in circumstances was “a course of conduct that has been pursued by [Julia] to disrupt the relationship of [Michael] and [M.B.] and to alienate [M.B.] from [Michael] and [his] family. Further, the continuing actions of [Julia] toward [Michael] have created an unsuitable and tension filled environment for [M.B.].” In making its findings, the court specifically found Julia not to be a credible witness.
Opinion at 8.
Julia’s appellate argument was fairly simple. In addition to arguments based on evidentiary rulings, she argued that the actions of which Michael complained were not so serious as to justify a change of custody and that the circuit court erred by disbelieving her version of events.
On appeal, Julia first argues that the circuit court clearly erred in finding that a material change in circumstances occurred after the entry of the divorce decree…. She further discusses the many altercations between her and Michael and claims that the quarrels amounted to petty complaints and parental gamesmanship, which cannot rise to the level of a material change in circumstances, and that they had a similar combative relationship prior to their divorce. In making these arguments, she also asks this court to credit her version of the events over Michael’s account.
Opinion at 10.
The Court of Appeals held that, even discounting the incidents that Julia argued should not have been considered at the trial, there was enough evidence to support the circuit court’s decision:
We hold that the circuit court did not err in finding that a material change in circumstances occurred following the entry of the divorce decree. This court does not examine each finding cited by a circuit court in isolation; certain factors, when examined in the aggregate, may support a finding that a change in custody is justifiable, although each factor, if examined in isolation, would not. Schreckhise, 2019 Ark. App. 48, 568 S.W.3d 782. In this case, even [disregarding the events Julia claims should not have been considered], the record is replete with evidence of an exceedingly hostile environment created by Julia following the divorce…Taken as whole, these circumstances easily rise above petty complaints and parental gamesmanship. Further, Julia’s criminal charges and the false DHS report demonstrate a new level of hostility that did not exist prior to the divorce.
Opinion at 10-11. With respect to Julia’s claim that the circuit court should have believed her, the Court of Appeals recited the well-established principle that appellate courts in family law cases do not second guess trial courts.
Therefore, the court affirmed the change of custody.
Bottom Line:
Coparenting children with an ex, whether a spouse, girlfriend, or boyfriend, can be hard. Parents often have differing ideas about how to raise their children, they sometimes live far apart, and there is often at least some level of residual ill will from the broken relationship. Arkansas Family Law Courts understand that. But there is a limit. A court’s grant of custody is not a license to the custodial parent to act however they want. They must continue to act in, and provide an environment that promotes, the best interests of the child. Moreover, they must respect the noncustodial parents’ rights. Failure to do so can result in a change of custody.
Parents dealing with custody issues issue are well-served to consult with an Arkansas Family Law Attorney as soon as possible. Contact our firm by phone, email, or our contact form if you would like your case evaluated.
Probation Revocation Is Possible Even After Sentence Has Ended
Case: Adams v. State, 2020 Ark. App. 501
Trial Court: Mississippi County Circuit Court (Judge Ralph Wilson, Jr.)
Issue: Does a circuit court have jurisdiction to revoke probation after the probation period has expired?
Holding: Yes. Ark. Code Ann. Sec. 16-93-308(f) sets forth circumstances under which probation may be revoked even after the term has expired.
Summary:
The facts and legal argument in this short case are straightforward. Adams, the appellant, pled guilty to aggravated assault in February 2013 and was sentenced to three years’ probation. A petition to revoke was filed in August 2015. On the same day, an arrest warrant was issued. It was executed shortly thereafter. A second petition to revoke was filed in January 2017. The court took up the first petition at a February 2017 hearing where it found Appellant guilty of a violation and sentenced him to three more years of probation.
A subsequent petition was filed in November 2017 and taken up in a June 2019 hearing. The court again found that Appellant had violated his probation. This time, it sentenced him to 18 months’ imprisonment and a three year suspended sentence.
On appeal, Adams argued that:
by the time his probation was revoked in February 2017, his probation had already been expired for over a year. Thus, he contends that the court lacked jurisdiction to revoke his probation and extend it in 2017.
Opinion at 1.
The appellate court rejected this argument, pointing to statutory authority allowing a court to revoke probation where, for instance, “the defendant is arrested for the violation or if a warrant is issued for the defendant’s arrest for violation prior to the expiration of the probationary period”. Id. Because an arrest warrant was issued and returned while the appellant’s probation was still in effect, the court affirmed.
Parting Thoughts:
This case presents an opportunity to review the circumstances under which a court retains jurisdiction to revoke a “completed” probation term. Per Ark. Code Ann. §16-93-308(f), a court may revoke a sentence of probation (or a suspended sentence) if any of the following occurs before the term ends:
The defendant is arrested for violation of suspension or probation;
A warrant is issued for the defendant's arrest for violation of suspension or probation;
A petition to revoke the defendant's suspension or probation has been filed if a warrant is issued for the defendant's arrest within thirty (30) days of the date of filing the petition; or
The defendant has been issued, pursuant to the Arkansas Rules of Criminal Procedure, a citation in lieu of arrest or a summons for violation of suspension or probation.
Those who have an arrest or pending revocation petition hanging over their heads as they are finishing up a probation sentence or suspended sentence are not necessarily out of the woods simply because the term expires. Those in such a situation might be well-served to consult with an Arkansas Criminal Law Attorney as soon as possible. Contact our firm by phone, email, or our contact form if you would like your potential case evaluated.