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SUPREME COURT OF ARKANSAS

IN RE SPECIAL TASK FORCE ON

PRACTICE AND PROCEDURE IN

CIVIL CASES

Opinion Delivered January 10, 2014 

PER CURIAM

On August 2, 2013, we appointed a Special Task Force on Practice and Procedure in

Civil Cases to review and consider changes to court rules pertaining to parties, liability, and

damages in civil litigation involving negligence, medical malpractice, and related cases. See

In re The Appointment of a Special Task Force on Practice and Procedure in Civil Cases, 2013 Ark.

303 (per curiam). Professor John Watkins of Fayetteville was appointed chair of the task force,

and the following officers of the court were appointed to the task force: Representative Mary

Broadaway of Paragould, Brian Brooks, Esq., of Greenbrier, Paul Byrd, Esq., of Little Rock,

Kevin Crass, Esq., of Little Rock, Jim Julian, Esq., of Little Rock, Senator David Johnson of

Little Rock, Troy Price, Esq., of Little Rock, Mike Rainwater, Esq., of Little Rock, and

Representative Matthew Shepherd of El Dorado.

The task force has worked diligently since August, and Professor Watkins submitted

an interim report to the Chief Justice Hannah on December 31, 2013. At this juncture, the
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supreme court extends to Professor Watkins and to all members of the task force its sincere

appreciation for their work on this project. We will have more to say about the task force at

a later time, and we await the supplemental report that it has promised.

Today we publish for comment the Interim Report of the Special Task Force on

Practice and Procedure in Civil Cases, including the recommended rule changes. The court

will review the report and the proposed rules, and they will be referred to the Committee on

Civil Practice. Then, with the benefit of comments from the bench, bar, and other interested

parties, the Committee on Civil Practice, and ultimately the court, will be in a position to act

on the recommendations.

Comments should be submitted in writing to Les Steen, Clerk of the Supreme Court,

Attention: Task Force, Justice Building, 625 Marshall Street, Little Rock, AR 72201. The

comment period shall expire on March 14, 2014.
INTERIM REPORT OF THE SPECIAL TASK FORCE ON PRACTICE AND PROCEDURE IN 

CIVIL CASES 

In a per curiam order issued August 2, 2013, the Supreme Court established the Task Force to 

consider problems with and recommend changes in the court-adopted procedural rules that 

pertain to “parties, liability, and damages in civil litigation involving negligence, medical 

malpractice, and related cases.” 

The Task Force held the first of its seven meetings on August 29 and the last on December 

30. Its members also exchanged frequent emails, commented on draft proposals, researched 

particular issues of Arkansas law, and reviewed various reference materials, including rules and 

statutes from other states, the Restatement (3d) of Torts, and the Uniform Apportionment of Tort 

Liability Act (October 2000 draft). The Task Force also received input from representatives of 

interested parties. 

Having completed its work on all but one if the issues, the Task Force decided to submit this 

interim report to the Court, to be followed by a supplemental report on the remaining issue in 

February.1 

The Task Force’s proposals do not appear in an omnibus rule but instead are incorporated 

within existing rules: Ark. R. Civ. P. 3, 9, 11, 42, 49, and 52, and Ark. R. App. P.-Civ. 8. In addition, 

the Task Force proposes adoption of a new rule, designated as Ark. R. Civ. P. 11.1. Drafts of these 

rules, accompanied by explanatory notes, are appended to this report. New material is 

underlined, while material to be deleted is lined through. This report elaborates on three 

proposals and discusses two issues that the Task Force concluded do not warrant action by the 

Court. 

 

I. Allocation of Nonparty Fault 

The Task Force devoted more time to allocation of nonparty fault than to any other issue but 

in the end could not reach consensus. Nevertheless, seven of the nine voting members agreed on 

the recommendation included in this report. 

1 The issue is whether to include in Ark. R. Evid. 702 a “same specialty” requirement for 

experts in actions for medical injury. See Broussard v. St. Edward Mercy Health System, Inc., 2012 Ark. 

14, at 6, 386 S.W.3d 385, 389 (2012). 
2 

In brief, the Task Force recommends adding new provisions to three Rules of Civil 

Procedure: Rule 9(h), Rule 49(c), and Rule 52(a)(2). Rule 9(h) would be the exclusive procedural 

mechanism for asserting the substantive right to an allocation of nonparty fault under Ark. Code 

Ann. §§ 16-60-201 & 16-60-202(c), as amended by Act 1116 of 2013. Like similar rules in other 

states, Rule 9(h) requires a defendant to assert a contribution claim for allocation of nonparty fault 

in an answer or amended answer.2 

This pleading requirement assures notice to all parties and must be met if a nonparty’s fault 

is to be determined by the trier of fact, as provided in proposed Rules 49(c) and 52(a)(2). 

However, it does not apply to a nonparty whose status stems from a settlement with the plaintiff; 

by statute, the trier of fact must determine a released joint tortfeasor’s “pro rata share of 

responsibility” for the plaintiff’s damages. Ark. Code Ann. § 16-61-204(d). 

The proposed additions to Rules 49 and 52 provide that, in actions for personal injury, 

medical injury, wrongful death, or property damage, the trier of fact must “determine the fault of 

all persons or entities, including those not made parties, who may have joint liability or several 

liability” for the alleged harm if: (1) the plaintiff has settled with the nonparty, or the defendant 

has given the notice required by Rule 9(h), and (2) the defendant has carried its burden of 

establishing a prima facia case of the nonparty’s fault. The italicized language within the quotation 

is taken from Ark. Code Ann. § 16-61-201 and is intended to be coextensive with the statute. 

Under both rules, apportionment of fault to a nonparty is to be used only for determining 

the percentage of fault of the parties, and a finding of fault can neither subject a nonparty to 

liability in any action nor be introduced as evidence of liability in any action. These provisions are 

based on Section 2 of Act 649 of 2003, the Civil Justice Reform Act. Section 2, codified at Ark. 

Code Ann. § 16-55-202, was invalidated on separation-of-powers grounds in Johnson v. Rockwell 

Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135 (2009). 

2 By contrast, a defendant seeking contribution for damages may bring a third-party claim 

against a nonparty under Rule 14 or assert a cross-claim against a co-party under Rule 13. The 

procedural section of the Uniform Contribution Among Tortfeasors Act, Ark. Code Ann. § 16-61-

207, is inconsistent with Rule 9(h) and in some respects with Rules 13 and 14. Upon adoption of 

Rule 9(h), the statute would be superseded pursuant to Ark. Code Ann. § 16-11-301. 
3 

The two Task Force members who voted against the adoption of the proposed rules argued 

that apportionment of fault to a nonparty who has not settled is unconstitutional unless that 

person or entity is made a party. For this proposition, they relied on Billings v. Aeropres Corp., 522 

F. Supp.2d 1121 (E.D. Ark. 2007). 

In Billings, Judge Wilson held, under strict-scrutiny review, that apportioning fault to an 

immune nonparty employer “will compromise the truth-determining function of a trial” and 

offend the plaintiff’s fundamental right to a fair trial. “Allowing a jury to make specific findings 

concerning the conduct of an entity or person who is not in the courtroom undermines the purpose 

of the adversarial process.” Id. at 1131 (emphasis added). To avoid this due process problem, as well 

as a separation-of-powers problem under state law, Judge Wilson concluded that Ark. Code Ann. 

§ 16-55-202 must be “read to apply to persons or entities that can be joined in the action, by either 

a cross claim or by a third-party claim.” Id. 

Judge Moody rejected this conclusion in Bohannon v. Johnson Food Equipment, Inc., 2008 WL 

2685719 (E.D. Ark. 2008), but agreed that “the fundamental truth-determining function necessary 

for a fair trial” must be safeguarded. Id. at *2. “Under [Ark. Code Ann. § 16-55-202], a designated 

non-party is not subject to any liability for its fault, making the filing and service of a third party 

complaint unnecessary,” he wrote. “Federal and Arkansas Rules of Civil Procedure allow 

discovery from non-parties, and this provides sufficient protection for plaintiffs to assure . . . a 

fair trial so as to comport with the United States Constitution.” Id. 

The Task Force has not conducted extensive research but is unaware of any appellate courts 

that have addressed the “adversarial process” point raised by Judge Wilson in the Billings case.

3 

Most of these courts have employed the rational basis standard of review and held that 

apportioning fault to nonparties does not violate substantive due process.4 

3 

Other courts have recognized that there is a fundamental right to a fair trial in civil cases. 

E.g., Latiolais v. Whitley, 93 F.3d 205 (5th Cir. 1996); Davidson v. Riley, 44 F.3d 1118 (2d Cir. 1995); 

Desclos v. Southern New Hampshire Medical Center, 903 A.2d 952 (N.H. 2006). 

4 E.g., Ocasio v. Federal Exp. Corp., 33 A.3d 1139 (N.H. 2011); Haff v. Hettich, 593 N.W.2d 383 

(N.D. 1999); Smiley v. Corrigan, 638 N.W.2d 151 (Mich. App. 2001); Salazar v. American Sterilizer Co., 5 

P.3d 357 (Colo. App. 2000); Contra, Plumb v. Fourth Judicial Dist. Ct., 927 P.2d 1011 (Mont. 1996). 
4 

The dissenting members also argued that the proposed allocation rules went beyond the 

legislative intent of Act 1116, which they said the General Assembly enacted to address only 

settling defendants. This interpretation, they noted, would avoid the constitutional problem 

raised in Billings. The majority, however, decided that there was no reliable method of 

ascertaining legislative intent and choose instead to propose rules that closely track the text of the 

Act itself. 

Likewise, the majority rejected a second proposal that would have limited the allocation 

rules to a nonparty who is subject to personal jurisdiction in the state and is neither immune from 

suit nor an employer or co-employee of the plaintiff under the Workers’ Compensation Law. Act 

1116 amended Ark. Code Ann. § 16-61-202 to provide a right to “an allocation of fault.” The fact 

that a person or entity is beyond the court’s jurisdiction or enjoys immunity from suit does not 

mean that a person or entity is not at fault; rather, it means that the person or entity cannot be 

sued. Ocasio v. Federal Exp. Corp., 33 A.3d 1139, 1147 (N.H. 2011). 

The dissenting members asked that their position be included in this report so it would be 

clear that the Task Force did not address the constitutional issues mentioned above. Those 

questions are ultimately for this Court. 

II. Rule 11 and Rule 11.1 

Section 21 of Act 649, codified at Ark. Code Ann. § 16-114-209, provides that a party who 

files an action for medical injury “without reasonable cause,” or the attorney who signed the 

complaint, “shall thereafter, as determined by the court, be subject to . . . [t]he payment of 

reasonable costs, including attorney’s fees, incurred by the other party by reason of the pleading” 

and “appropriate sanctions.” In cases where expert testimony is required, reasonable cause may 

be established only by the affidavit of an appropriate expert. 

The statute required dismissal of the action if the affidavit was not filed within thirty days 

after filing of the complaint. In Summerville v. Thrower, 369 Ark. 231, 253 S.W.3d 415 (2007), this 

Court invalidated the mandatory dismissal provision, pointing to a conflict with Rule 3. A 

concurring opinion focused on Rule 11. 

The Task Force has addressed the affidavit requirement and the sanctions for actions filed 

“without reasonable cause” in separate rules. Proposed Rule 11.1, 
5 

which is based on a Tennessee statute that has by all accounts worked well, replaces the affidavit 

with a “certificate of expert consultation” filed by the plaintiff and, in some cases, by the 

defendant. With respect to sanctions, the Task Force concluded that actions for medical injury 

should be treated under Rule 11 in the same fashion as other actions, but that the rule should be 

clarified. 

Under proposed Rule 11.1, the plaintiff or the plaintiff’s attorney must file with the 

complaint a certificate stating that he or she has consulted an expert who is qualified to testify in 

the case and who believes there is a good faith basis for maintaining the action. If a defendant 

alleges that another person or entity, including a nonparty, is at fault for the plaintiff’s injuries, 

the defendant or the defendant’s attorney must also file a certificate. A form for the certificate is to 

be developed by the Administrative Office of the Courts. 

If the plaintiff fails to file a certificate meeting the requirements of the rule, the complaint is 

subject to dismissal with prejudice. If a defendant fails to comply, the pleadings alleging fault are 

subject to being stricken with prejudice. Also, the certificates are subject to the requirements of 

Rule 11, thereby making sanctions available under that rule. 

The proposed changes in Rule 11 are based in large part on Ark. R. App. P.-Civ. 11, which 

applies when frivolous appeals are taken or other misconduct occurs at the appellate level. 

Among the changes are a non-exclusive list of seven sanctions available to the trial court, six of 

which are identical or analogous to those in the appellate rule. As under the present version of 

Rule 11, the court must impose a sanction upon finding that the rule has been violated. Compare 

Fed. R. Civ. P. 11(c)(1) (court “may impose” a sanction). 

Like Ark. R. App. P.-Civ. 11(c), the proposed rule does not limit a sanction to that sufficient 

to serve as a deterrent. Compare Fed. R. Civ. P. 11(c)(4) (sanction “must be limited to what suffices 

to deter repetition of the conduct”). The proposed rule is consistent with this Court’s statement 

concerning the present version: “Unlike Federal Rule 11, our Rule 11 places no limit on the 

amount of sanctions that may be imposed.” Williams v. Martin, 335 Ark. 163, 175, 984 S.W.2d 

449,450 (1998)(supp. op. on denial of rehearing). But see Sanford v. Harris, 367 Ark. 589, 593-94, 242 

S.W.3d 277, 281 (2006) (purpose of Rule 11, like federal rule, is to “deter future litigation abuse, 

not to “make the victim whole”). 
6 

III. Collateral Source Rule 

In Johnson v. Rockwell Automation, supra, this Court held unconstitutional Section 15(b) of Act 

649, which, contrary to the collateral source rule, restricted evidence of damages for the costs of 

medical care to those actually paid by an injured plaintiff.5 Because this provision, codified at Ark. 

Code Ann. § 16-55-212(b), purported to dictate what evidence was admissible at trial, it impinged 

upon this Court’s exclusive rulemaking power and ran afoul of the separation of powers doctrine. 

An identical provision applicable in actions for medical injury, Ark. Code Ann. § 16-114-

208(a)(1)(B), is invalid for the same reasons and should be deemed superseded pursuant to Ark. 

Code Ann. § 16-11-301. 

However, the Task Force does not recommend that the Court promulgate an evidentiary 

rule to replace these statutes. To do so would raise serious constitutional problems. 

The collateral source rule operates both as a substantive rule of damages and as a procedural 

rule of evidence. Substantively, the plaintiff’s receipt of payments or benefits from a source 

independent of and collateral to the defendant does not reduce the plaintiff’s recovery from the 

defendant. Procedurally, the defendant is prohibited from introducing or eliciting evidence of 

those payments or benefits at trial. Younts v. Baldor Elec. Co., 310 Ark. 86, 89-90, 832 S.W.2d 832, 

834-35 (1992).6 

An evidentiary rule wholly or partially abrogating the collateral source rule appears to be 

unconstitutional, as it would presumably reduce the plaintiff’s recovery of damages contrary to 

Ark. Const. Art. 5, § 32 (“no law shall be enacted limiting the amount to be recovered for injuries 

resulting in death or for injuries to 

5 The collateral source rule has been criticized for providing the injured party a double 

recovery. But as this Court has explained: “The law rationalizes that claimant should benefit from 

the collateral source recovery rather than the tortfeasor, since the claimant has usually paid an 

insurance premium or lost sick leave, whereas to the tortfeasor it would be a total windfall.” East 

Texas Motor Freight Lines, Inc. v. Freeman, 289 Ark. 539, 548, 713 S.W.2d 456, 462 (1986). 

6 This duality is widely recognized. E.g., Parker v. Wideman, 380 F.2d 433, 436 (5th Cir. 1967); 

Wills v. Foster, 892 N.E.2d 1018, 1022-23 (Ill. 2008); Chanda v. Federal Home Loans Corp., 155 Cal. Rptr.3d 

693, 698-99 (Cal. App. 2013). 
7 

persons or property”).7 

Judge Hendren came to this conclusion in a pre-Rockwell case, Burns v. Ford Motor Co., 549 F. 

Supp.2d 1081 (W.D. Ark. 2008), holding Section 16-55-212(b) unconstitutional. After noting that 

the statute was framed as an evidentiary rule, he wrote: 

The Arkansas Supreme Court has squarely held . . . that a personal injury plaintiff is 

entitled – assuming a successful showing of liability – to recover the amount of 

payments made (or written off) on her behalf by a collateral source. Yet A.C.A. § 

16-55-212(b) would prevent her from doing precisely that. For this reason, the Court 

finds that the Arkansas Supreme Court would, if presented with the issues raised by 

the motion now under consideration, find that A.C.A. § 16-55-212(b) violates Article V, 

§ 32 of the Arkansas Constitution. 

Id. at 1085. 

Similarly, the substantive element of the collateral source rule presents a constitutional 

problem in light of Amend. 80, § 3, which grants this Court exclusive rulemaking authority with 

the proviso that its rules of pleading, practice, and procedure “shall not abridge, enlarge or 

modify any substantive right.” 

IV. Surveys and Inspection Reports 

The Task Force has made no recommendation with respect to Ark. Code Ann. § 16-114-211, 

added by Section 22 of Act 649, because of this Court’s decision in Bedell v. Williams, 2012 Ark. 75, 

386 S.W.3d 493 (2012). 

Under Section 16-114-211, results of surveys or inspections by government regulators or 

accrediting organizations “that the plaintiff seeks to use as evidence against a medical care 

provider must be relevant to the plaintiff’s injury to be admissible at trial.” 

7 A statute limiting or abolishing the collateral source rule as a substantive rule of damages 

would likewise seem to be unconstitutional. See Bayer CropScience LP v. Schafer, 2011 Ark. 518, 385 

S.W.3d 822 (2011). 
8 

In Bedell, this Court rejected a separation-of-powers challenge to a statute creating a 

testimonial privilege because Ark. R. Evid. 501 recognizes privileges “provided by . . . statute.” In 

adopting Rule 501, the Court had “specifically given the General Assembly the power to enact 

statutes regarding testimonial privilege.” 2012 Ark. 75, at 17, 386 S.W.3d at 505. 

Similarly, the first sentence ofArk.R.Evid.402 provides: “All relevant evidence is admissible, 

except as otherwise provided by statute or by these rules or by other rules applicable in the courts of 

this State.” (Emphasis added.) 

Arguably, Section 16-114-211 precludes admission of surveys and inspections that are 

relevant to issues other than the plaintiff’s injury, such as the standard of care and the propriety 

of punitive damages. Robert B Leflar, How the Civil Justice Reform Act Changes Arkansas Tort Law, 

38 ARKANSAS LAWYER 26, 28 (Fall 2003). If so, the statute falls within the express exception in the 

first sentence of Rule 402. If not, the statute is consistent with the rule’s second sentence, which 

requires that evidence be relevant to be admissible. 

Respectfully submitted, 

John J. Watkins 

Chair 

December 31, 2013 
I. Arkansas Rules of Civil Procedure

Rule 3. Commencement of Action; “Clerk” Defined; Separate Actions and Filing

Fees; Notice of Medical Injury.

(a) Commencement. (1) A civil action is commenced by filing a complaint with the

clerk of the court, who shall note thereon the date and precise time of filing, and by

serving the summons and complaint in compliance with Rule 4(i). 

(2) When the notice required by subdivision (d) of this Rule is served within

sixty (60) days before expiration of the applicable statute of limitations, an action for

medical injury shall be deemed commenced upon service of the notice if the

complaint is filed with the clerk of the court within ninety (90) days after expiration

of the applicable statute of limitations and the summons and complaint are served

in compliance with Rule 4(i).

(b) Clerk. The term “clerk of the court” as used in these Rules means the circuit

clerk and, with respect to probate matters, any county clerk who serves as ex officio

clerk of the probate division of the circuit court pursuant to Ark. Code Ann. § 14-14-

502(b)(2)(B). In counties where the county clerk serves as the ex officio clerk of any

division of the circuit court, the filing requirement shall be satisfied when the

complaint is filed with either the circuit clerk or the county clerk.

(c) Separate Actions; Filing Fees. 

(1) The clerk shall assign a new case number and charge a new filing fee for

the filing of any case that is refiled after having been dismissed.

(2) (d) No other claim or counterclaim for relief, including without limitation,

divorce, annulment, separate maintenance, or paternity, shall be asserted in an

action filed under the Domestic Abuse Act, Ark. Code Ann. § 9-15-101 et seq., but

a separate action seeking other relief shall be filed, and the clerk shall assign a new

case number and charge a filing fee unless the filing fee is waived pursuant to Rule

72 of these rules.

(3) (e) A petition for adoption cannot be asserted in a guardianship

proceeding, but a separate action shall be filed, and the clerk shall assign a new case

number and charge a filing fee unless the filing fee is waived pursuant to Rule 72 of

these rules.

(d) Notice of Claim in Actions for Medical Injury. 

(1) No action for medical injury shall be commenced until at least sixty (60)

days after service of a written notice of the claim upon each medical care provider

to be named as a defendant. The notice shall include:

(A) the patient’s full name, date of birth, present address, address at the
time of the diagnosis, care, treatment, or procedure at issue, and the last four digits

of his or her social security number;

(B) the full name and address of the person authorizing the notice and his

or her relationship to the patient, if the notice is not sent by the patient;

(C) the full name and address of the attorney sending the notice, if

applicable;

(D) the date or dates of the diagnosis, care, treatment, or procedure at issue

and a description of the alleged injury; 

(E) the names and addresses of the known medical care providers relating

to the alleged injury; and

(F) an authorization permitting the medical care provider receiving the

notice to obtain the patient’s medical records from the medical care providers listed

pursuant to paragraph (1)(E) of this subdivision (d).

(2) The notice shall be served on a medical care provider by certified mail,

return receipt requested, or by a commercial delivery company qualified under Rule

4(d)(8)(C). For purposes of subdivisions (a)(2) and (d)(1) of this rule, service of the

notice shall be deemed complete on mailing or on submitting it to a commercial

delivery company, and the date of mailing or submission shall be the date of service.

(3) If the notice substantially complies with the requirements of paragraph (1)

of this subdivision (d), an ensuing complaint based on the alleged injury shall not

be dismissed on the ground that the notice was insufficient or otherwise defective.

(4) The notice may be accompanied by a request for production of copies of

the plaintiff’s medical records. The medical care provider shall produce the

requested records within thirty (30) days of receipt of the notice. If the medical care

provider fails to do so, the plaintiff may file an independent action for production.

Upon finding that the medical care provider’s failure to produce copies of the

medical records was without good cause, the court shall award the plaintiff his or

her costs and reasonable attorney’s fees.

Notes

Under the proposal, Rule 3 would be revised along the lines of a statute

invalidated in Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992), because it

conflicted with the rule by conditioning commencement of an action for medical

injury upon providing the defendant written notice of the claim. The bulk of the new

provisions appear in subdivision (d) and a second paragraph added to subdivision

(a). To make the rule more manageable in light of these changes, subdivisions (c)

2
through (e) of the present rule have been combined into a single subdivision (c) with

multiple paragraphs. 

Under Ark. Code Ann. § 16-114-212, added by Section 22 of Act 649 of 2003,

the plaintiff in an action for medical injury must file a written notice of intent to sue

in order to take advantage of a provision tolling the statute of limitations for ninety

days. The drafters of this statute attempted to avoid the Weidrick problem by

separating the notice requirement from commencement of the action. As a result,

however, notice was optional and would be given only when a plaintiff needed

extra time. Upon adoption of the proposed amendments to Rule 3, Section 16-114-

212 would be superseded pursuant to Ark. Code Ann. § 16-11-301. 

Subdivision (d)(1) requires the plaintiff to give a medical care provider written

notice of the claim at least 60 days before commencing the action. Under paragraph

(2), the notice must be served by certified mail, return receipt requested, or by

commercial delivery company. Because service of the notice is complete when it is

mailed or submitted to the commercial delivery company, the date of mailing or

submission is the date of service for purposes of subdivisions (a)(2) and (d)(1). 

The contents of the notice are essentially the same as in Section 16-114-212,

although provision is made for the situation in which someone other than the

patient sends the notice. Paragraph (3) of subdivision (d) requires only substantial

compliance with the notice requirements. As under the statute, paragraph (4) gives

the plaintiff the option to request copies of his or her medical records from the

provider.

If the notice is served within the 60-day period before the statute of limitations

expires, subdivision (a)(2) provides that an ensuing action for medical injury is

deemed commenced upon service of the notice, provided that the complaint is filed

with the clerk no later than 90 days after expiration of the statute of limitations and

served with the summons in compliance with Rule 4(i). Also, a clause to the effect

that compliance with Rule 4(i) is necessary to commence an action has been added

to subdivision (a)(1), reflecting settled case law. E.g., McCoy v. Montgomery, 370 Ark.

333, 259 S.W.3d 430 (2007); Green v. Wiggins, 304 Ark. 484, 803 S.W.2d 536 (1991).

While there may be some doubt whether the Supreme Court may by rule

provide for tolling a statute of limitations, subdivision (a)(2) determines when an

action is commenced. As the Court observed in Weidrick, “few rules [are] more basic

to the civil process than a rule defining the means by which complaints are filed and

actions commenced. . . .” 310 Ark. at 146, 835 S.W.2d at 847.

Rule 9. Pleading Special Matters.

3
* * *

(h) Allocation of Nonparty Fault; Notice. (1) In an action for personal injury, medical

injury, wrongful death, or property damage, a defending party seeking to allocate

fault to a nonparty pursuant to Ark. Code Ann. § 16-61-202(c) shall give notice as

provided in paragraph (2) of this subdivision. This requirement does not apply with

respect to a nonparty who has entered into a settlement agreement with the

claimant.

(2) Notice shall be given in the initial responsive pleading, if the factual and

legal basis upon which fault can be allocated is then known, or in an amended

pleading pursuant to Rule 15 after the party discovers that information. The

pleading shall: 

(A) sufficiently identify the nonparty to permit service of process,

regardless whether service can be made or the court has in personam jurisdiction over

the nonparty; and

(B) state in ordinary and concise language facts showing that the nonparty

is at fault for the personal injury, medical injury, wrongful death, or property

damage alleged by the claimant.

(3) A party served with a pleading that identifies a nonparty pursuant to this

subdivision may, within thirty (30) days after service, file an amended pleading

pursuant to Rule 15 stating a claim against the nonparty.

(4) A party may not seek to allocate fault to a nonparty except by compliance

with this subdivision.

Notes

Proposed Rule 9(h) would establish the exclusive procedural mechanism for

asserting the right to an allocation of fault created by Ark. Code Ann. § 16-61-202(c),

as amended by Act 1116 of 2013, § 3. Other states have placed similar provisions in

their rules that govern the pleading of special matters. E.g., Mich. Ct. Rule 2.112(k);

Utah R. Civ. P. 9(l). Subdivision (h) draws in part on those rules and on Section 2 of

Act 649 of 2003, codified at Ark. Code Ann. § 16-55-202, which was held

unconstitutional on separation-of-powers grounds in Johnson v. Rockwell Automation,

Inc., 2009 Ark. 241, 308 S.W.3d 135 (2009).

Under subdivision (h), a defendant asserts a contribution claim for allocation

of nonparty fault in an answer or amended answer. By contrast, a defendant seeking

contribution for damages may bring a third-party claim against a nonparty under

Rule 14 or a cross-claim against a co-party under Rule 13. The procedural section of

4
the Uniform Contribution Among Tortfeasors Act, Ark. Code Ann. § 16-61-207, is

inconsistent with Rule 9(h) and in some respects with Rules 13 and 14. Upon †

adoption of Rule 9(h), Section 16-61-207 would be superseded pursuant to Ark.

Code Ann. § 16-11-301.

Notice under Rule 9(h) is necessary if a nonparty’s fault is to be considered

by the trier of fact. See Proposed Amendments to Rules 49 and 52, infra. Under

paragraph (1), however, the notice requirement does not apply if a nonparty has

settled with the claimant. When there has been a settlement, there is no need for

notice in light of Ark. Code Ann. § 16-61-204(d), which provides that “the remaining

defendants are entitled to a determination by the finder of fact of the released joint

tortfeasor’s pro rata share of responsibility for the injured person’s damages.”

Under paragraph (2), notice must be given in the defending party’s original

responsive pleading, if the necessary information is then available, or in an amended

pleading. Unlike former Section 16-55-202, under which notice could be given no

later than 120 days before the trial date, paragraph (2) contains no deadline.

Although Rule 15 allows a pleading to be amended as a matter of right, the court

may, on motion, strike the amended pleading or grant a continuance if it determines

that “prejudice would result or the disposition of the cause would be unduly

delayed.”

Paragraph (2)(A) requires that nonparties be identified in sufficient detail to

permit service of process, even though service cannot be made and the court lacks

in personam jurisdiction. This requirement guards against the practice of naming socalled “phantom tortfeasors.” See Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785

(Tenn. 2000). Paragraph (2)(B) parallels Ark. R. Civ. P. 8(a) in requiring the same fact

pleading necessary in a complaint. The requirement in former Section 16-55-202 –

“a brief statement of the basis for believing the nonparty to be at fault” – was

uncertain in scope but well short of the fact-pleading standard.

Paragraph (3) permits any party, within 30 days after being served with a

For example, Ark. Code Ann. § 16-61-207(1) requires a motion for leave to serve a †

summons and third party complaint on a non-party, while Rule 14(a) allows service without leave

of court if the defendant “files the third party complaint not later than 10 days” after filing an

answer. Thereafter, the defendant must obtain leave of court. More significantly, Ark. Code Ann.

§ 16-61-207(3) appears, at least in some circumstances, to bar an independent action for

contribution if relief can be obtained in the original action, a result inconsistent with the permissive

nature of Rule 13(f), which provides for cross-claims against co-parties, and Rule 14(a).

5
pleading that identifies a nonparty, to amend his or her pleadings to assert a claim

against the nonparty. Paragraph (4) makes plain that the procedure set out in

subdivision (h) is the exclusive method for allocation of nonparty fault.

Rule 11. Signing of Pleadings, Motions, and Other Papers; Sanctions.

(a) Signature. Every pleading, written motion, and other paper of a party

represented by an attorney shall be signed by at least one attorney of record in his

or her individual name, whose address shall be stated. A party who is not

represented by an attorney shall sign his or her pleading, motion, or other paper

and state his or her address and telephone number, if any. Except when otherwise

specifically provided by rule or statute, pleadings need not be verified or

accompanied by affidavit. The signature of an attorney or party constitutes a

certificate by him that he has read the pleading, motion, or other paper; that to the

best of his knowledge, information, and belief formed after reasonable inquiry it is

well grounded in fact and is warranted by existing law or a good faith argument for

the extension, modification, or reversal of existing law, that it is not interposed for

any improper purpose, such as to harass or to cause unnecessary delay or needless

increase in the cost of litigation, and that it complies with the requirements of Rule

of Civil Procedure 5(c)(2) regarding redaction of confidential information from case

records submitted to the court. If a pleading, motion, or other paper is not signed,

it shall be stricken unless it is signed promptly after the omission is called to the

attention of the pleader or movant. If a pleading, motion, or other paper is signed

in violation of this rule, the court, upon motion or upon its own initiative, shall

impose upon the person who signed it, a represented party, or both, an appropriate

sanction, which may include an order to pay to the other party or parties the amount

of the reasonable expenses incurred because of the filing of the pleading, motion, or

other paper, including a reasonable attorney's fee.

(b) Certificate. The signature of an attorney or party constitutes a certificate by the

signatory that to the best of his or her knowledge, information, and belief, formed

after an inquiry reasonable under the circumstances:

(1) it is not interposed for any improper purpose, such as to harass, cause

unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing

law or by a nonfrivolous argument for extending, modifying, or reversing existing

law or for establishing new law;

(3) the factual contentions have evidentiary support;

6
(4) the denials of factual contentions are warranted on the evidence or, if

specifically so identified, are reasonably based on belief or a lack of information; and

(5) it complies with the requirements of Rule 5(c)(2) regarding redaction of

confidential information from case records submitted to the court. 

(c) Sanctions. (1) If a pleading, motion, or other paper is not signed, it shall be

stricken unless it is signed promptly after the omission is called to the attention of

the pleader or movant. If a pleading, motion, or other paper is signed in violation

of this rule, the court, upon motion or upon its own initiative, shall impose upon any

attorney or party who violated this rule an appropriate sanction.

(2) Sanctions that may be imposed for violations of this rule include, but are

not limited to:

(A) an order dismissing a claim or action;

(B) an order striking a pleading or motion;

(C) an order entering judgment by default;

(D) an order to pay to the other party or parties the amount of the

reasonable expenses incurred because of the filing of the pleading, motion, or other

paper, including a reasonable attorney’s fee;

(E) an order to pay a penalty to the court;

(F) an order awarding damages attributable to the delay or misconduct;

(D) an order referring an attorney to the Supreme Court Committee on

Professional Conduct or the appropriate disciplinary body of another state. 

(3) The court’s order imposing a sanction shall describe the sanctioned

conduct and explain the basis for the sanction. If a monetary sanction is imposed,

the order shall explain how it was determined.

(4) The court shall not impose a monetary sanction against a represented party

for violating subdivision (b)(2), or on its own initiative, unless it issued the

show-cause order under subdivision (c)(6) before voluntary dismissal or settlement

of the claims made by or against the party that is, or whose attorneys are, to be

sanctioned.

(5) (b) A motion for sanctions under this rule shall be made separately from

other motions or requests and shall describe the specific conduct alleged to violate

subdivision (a) (b). It shall be served as provided in Rule 5 but shall not be filed with

or presented to the court unless, within 21 days after service of the motion, (or such

other period as the court may prescribe), the challenged paper, claim, defense,

contention, allegation, or denial is not withdrawn or appropriately corrected. If

warranted, the court may award to the party prevailing on the motion the

reasonable expenses and attorney’s fees incurred in presenting or opposing the

7
motion.

(6) On its own initiative, the court may order an attorney or party to show

cause why conduct specifically described in the order has not violated subdivision

(b). The order shall afford the attorney or party a reasonable time to respond, but not

less than 14 days. 

Notes

 The proposed changes reorganize and clarify the rule. Several revisions are

based on language in Ark. R. App. P.-Civ. 11, which applies at when frivolous

appeals are taken or other misconduct occurs at the appellate level. Other provisions

are drawn from Fed. R. Civ. P. 11, but overall this rule differs significantly from its

federal counterpart.

Upon adoption of these revisions and proposed Rule 11.1, infra, Section 21 of

the Civil Justice Reform Act of 2003, codified at Ark. Code Ann. § 16-114-209, would

be superseded pursuant to Ark. Code Ann. § 16-11-301. The Supreme Court

invalidated a portion of the statute in Summerville v. Thrower, 369 Ark. 231, 253

S.W.3d 415 (2007).

Subdivision (b) of the revised rule, which describes the certification made by

the person who signs a pleading, motion, or paper, does not substantially change

current law. It is taken from the federal rule but modified to reflect the requirement

of fact pleading under the Arkansas rules. 

As under present Rule 11(a), subdivision (c)(1) of the proposed rule requires

the trial court to impose “an appropriate sanction” upon finding that the rule has

been violated. Subdivision (c)(2) sets out a non-exclusive list of seven sanctions , six

of which are identical or analogous to those in Ark. R. App. P.-Civ. 11(c). The other

sanction, referring counsel to the Committee on Professional Conduct, is clearly

within the power of the trial court. See Ligon v. Stilley, 2010 Ark. 418, 371 S.W.3d 615

(2010).

The introductory clause in subdivision (c)(2) is taken from Ark. R. App. P.-

Civ. 11(c) and does not limit a sanction to that sufficient to serve as a deterrent.

Compare Fed. R. Civ. P. 11(c)(4) (sanction “must be limited to what suffices to deter

repetition of the conduct or comparable conduct by others similarly situated”). 

In Crockett & Brown v. Wilson, 321 Ark. 150, 901 S.W.2d 826 (1995), the

Supreme Court held that an order imposing monetary sanctions under Rule 11 must

explain the basis for the trial court’s decision. This requirement, the Court said, is

necessary for effective judicial review. Id. at 159, 901 S.W.2d at 830. Because this

8
rationale applies whether the sanction is monetary or nonmonetary, subdivision

(c)(3) requires an explanation regardless of the sanction imposed. It also leaves intact

the additional requirement from Crockett & Brown that the order must explain the

manner by which the amount of a monetary sanction is determined. Id. at 159, 901

S.W.2d at 830-31 (listing the factors to be considered). 

Under the current version of Rule 11(a), the trial court need not wait for a

motion but may act “upon its own initiative” to impose sanctions. The rule,

however, is silent as to the appropriate procedure. Subdivision (c)(6), which is based

on Ark. R. App. P.-Civ. 11(d), fills this gap. See also Fed. R. Civ. P. 11(c)(3).

Rule 11.1. Actions for Medical Injury; Certificate of Expert Consultation.

(a) In an action for medical injury in which expert testimony in required, the

complaint shall be accompanied by a certificate of expert consultation executed by

the plaintiff or attorney for the plaintiff.

(1) The certificate, which is subject to Rule 11, shall state that the plaintiff or

attorney for the plaintiff has consulted with at least one expert who has provided a

signed written statement confirming that upon information and belief he or she:

(A) is competent under Ark. R. Evid. 702 to express an opinion or opinions

in the case; and

(B) believes, based on the information available from the medical records

concerning the diagnosis, treatment, procedure, or care at issue, that there is a good

faith basis to maintain the action; or

(C) believes, based on the information available from the medical records

reviewed concerning the diagnosis, treatment, procedure, or care at issue and, as

appropriate, information from the plaintiff or others with knowledge of those

matters, that there are facts material to the resolution of the case that cannot be

reasonably ascertained from the medical records or information reasonably available

to the plaintiff or the plaintiff’s attorney, and that, despite the absence of this

information, there is a good faith basis for maintaining the action.

(2) Refusal of the defendant to release the medical records in a timely fashion

or where it is impossible for the plaintiff to obtain the medical records shall waive

the requirement that the expert review the medical record prior to the certification.

(b)(1) Within thirty (30) days after a defendant has filed an answer, amended

answer, cross-claim, or third-party complaint alleging that another person or entity,

including a non-party, is at fault for the injuries or death for which the plaintiff seeks

to recover and expert testimony is required to prove fault as required by Ark. R.

9
Evid. 702, the defendant or attorney for the defendant shall execute and file a

certificate of expert consultation.

(2) The certificate, which is subject to Rule 11, shall state that the defendant or

attorney for the defendant has consulted with at least one expert who has provided

a signed written statement confirming that upon information and belief he or she:

(A) is competent under Ark. R. Evid. 702 to express an opinion or opinions

in the case; and

(B) believes, based on the information reviewed concerning the diagnosis,

treatment, procedure, or care at issue, that there is a good faith basis for alleging

fault against the person or entity; or

(C) believes, based on the information reviewed concerning the diagnosis,

treatment, procedure, or care at issue, that there are facts material to the resolution

of the case that cannot be reasonably ascertained from the information reasonably

available to the defendant or attorney for the defendant, and that, despite the

absence of this information, there is a good faith basis for alleging fault against the

person or entity.

(c) A certificate of expert consultation is not required by an indigent person who

has been granted leave to proceed in forma pauperis pursuant to Rule 72.

(d)(1) If the plaintiff or attorney for the plaintiff fails to file a certificate of expert

consultation meeting the requirements of this rule, the action is subject to dismissal

with prejudice upon the motion of any defendant.

(2) If the defendant or attorney for the defendant fails to file a certificate of

expert consultation meeting the requirements of this rule, the defendant’s

allegations concerning the fault of a person or entity, including a nonparty, are

subject to being stricken with prejudice upon the motion of any party, unless the

plaintiff consents to waive compliance with this rule. If the allegations are stricken,

no defendant, except for a defendant who complied with this section, can assert, and

neither shall the judge nor jury consider, the fault, if any, of those identified by the

allegations.

(3) The court may, upon motion, grant an extension within which to file a

certificate of expert consultation if the court determines that a medical care provider

who has medical records relevant to the issues in the case has failed to timely

produce medical records upon timely request, or for other good cause shown.

(e) Except in connection with the imposition of sanctions under Rule 11, the

written statement of an expert relied upon in executing the certificate of expert

consultation is not discoverable.

(f) The Administrative Office of the Courts shall develop a form for the certificate

10
of expert consultation required by this rule. 

Notes

Section 21 of the Civil Justice Reform Act of 2003, codified at Ark. Code Ann.

§ 16-114-209, requires dismissal if an affidavit of an appropriate expert is not filed

within thirty days after filing of the complaint. The Supreme Court struck down the

mandatory dismissal provision in Summerville v. Thrower, 369 Ark. 231, 253 S.W.3d

415 (2007). Upon adoption of this rule and revised Rule 11, supra, Section 16-114-209

would be superseded pursuant to Ark. Code Ann. § 16-11-301. 

Rule 11.1, which is based on Tenn. Stat. Ann. § 29-26-122, replaces the affidavit

required by Section 16-114-209 with a “certificate of expert consultation.” Under

subdivision (a), the plaintiff or the plaintiff’s attorney must file with the complaint

a certificate stating that he or she has consulted an expert who is qualified to testify

in the case and who believes there is a good faith basis for maintaining the action.

Subdivision (c) provides an exception to the requirement for plaintiffs granted leave

to proceed in forma pauperis pursuant to Rule 72.

If a defendant alleges that another person or entity, including a nonparty, is

at fault for the plaintiff’s injuries, subdivision (b) requires the defendant or the

defendant’s attorney to file a certificate within thirty days after filing the answer,

amended answer, cross-claim, or third-party complaint containing the allegation.

The certificate must state that he or she has consulted an expert who is qualified to

testify in the case and who believes there is a good faith basis for alleging fault

against the person or entity. 

Under subdivision (d)(3), the trial court may, on motion, grant an extension

of time to file a certificate if it determines that a medical care provider has failed to

timely produce medical records relevant to the case, or on a showing of other good

cause.

If the plaintiff fails to file a certificate meeting the requirements of the rule,

subdivision (d)(1) provides that the complaint is subject to dismissal with prejudice.

Likewise, a defendant’s pleadings alleging fault are subject to being stricken with

prejudice pursuant to subdivision (d)(2). Because subdivisions (a)(1) and (b)(2) make

the certificates subject to Rule 11, sanctions under that rule are also available. By

virtue of subdivision (e), the written statement of an expert relied upon in executing

the certificate is discoverable only in connection with the imposition of Rule 11

sanctions. 

As stated in subdivision (f), the Administrative Office of the Courts is to adopt

11
forms for the required certificates. The forms promulgated in Tennessee may be

found online at https://www.tncourts.gov/node/431.

Rule 42. Consolidation; Separate Trials.

* * *

(b) Separate Trials. (1) The court, in furtherance of convenience or to avoid

prejudice, or when separate trials will be conducive to expedition and economy,

may order a separate trial of any claim, cross-claim, counterclaim, or third-party

claim, or of any separate issue or any number of claims, cross-claims, counterclaims,

third-party claims, or issues.

(2) Notwithstanding paragraph (1), all actions tried before a jury in which

punitive damages are sought shall, on motion of any party, be conducted in a

bifurcated trial before the same jury. The jury shall first determine the liability of the

defendant or defendants for compensatory damages, the amount of compensatory

damages to be awarded, and the liability of the defendant or defendants for punitive

damages. If necessary, the jury will then determine, in a separate proceeding, the

amount of punitive damages to be awarded. Evidence of a defendant’s financial

condition shall not be admitted in the first proceeding unless relevant to an issue

other than the amount of punitive damages.

Notes

New paragraph (2) has been added to subdivision (b), with its original text

designated as paragraph (1). In jury cases, paragraph (2) requires a separate trial, on

motion of any party, to determine the amount of punitive damages. All liability

issues and the amount of compensatory damages will be decided in the initial phase

of the trial, at which evidence of a defendant’s financial condition is generally not

admissible. Other states have adopted similar requirements by statute or case law.

E.g., Mo. Stat. Ann. § 510.263(1)-(3); Tenn. Code Ann. § 29-39-104(a); Transportation

Ins. Co. v. Moriel, 879 S.W.2d 10 (Tex. 1994). 

Some states require bifurcation of the entire punitive damages claim, i.e.,

liability and amount, as does Section 14 of the Civil Justice Reform Act, codified at

Ark. Code Ann. § 16-55-211. However, the approach reflected in paragraph (2) is

preferable. As the Texas Supreme Court has explained: “[S]ome of the evidence

relevant to punitive damage liability, such as evidence of gross negligence, will also

be relevant to liability for actual damages. Bifurcating only the amount of punitive

12
damages therefore eliminates the most serious risk of prejudice, while minimizing

the confusion and inefficiency that can result from a bifurcated trial.” Transportation

Ins. Co. v. Moriel, supra, 879 S.W.2d at 30.

Upon adoption of this rule, Section 16-55-211 would be superseded pursuant

to Ark. Code Ann. § 16-11-301. 

Rule 49. Verdicts and Interrogatories.

* * *

(c) Allocation of Fault. (1) In an action for personal injury, medical injury, wrongful

death, or property damage, the jury shall determine the fault of all persons or

entities, including those not made parties, who may have joint liability or several

liability for the alleged injury, death, or damage to property. However, the jury shall

determine the fault of a nonparty only if:

(A) the claimant entered into a settlement agreement with the nonparty, or a

defending party has given notice, as provided in Rule 9(h), that the nonparty was

wholly or partially at fault; and

(B) the defending party has carried the burden of establishing a prima facia

case of the nonparty’s fault.

(2) The jury shall allocate the fault, on a percentage basis, among those persons

or entities, including those not made parties, found to have contributed to the injury,

death, or property damage.

(3) Assessment of the percentage of a nonparty’s fault shall be used only for

determining the percentage of fault of the parties. A finding of fault shall not subject

a nonparty to liability in any action or be introduced as evidence of liability in any

action.

Notes

Subdivision (c) implements Ark. Code Ann. §§ 16-60-201 & 16-60-202(c), as

amended by Act 1116 of 2013. It is based in part on Section 2 of Act 649 of 2003,

codified at Ark. Code Ann. § 16-55-202(a), which was invalidated on separation-ofpowers grounds in Johnson v. Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d

135 (2009). A corresponding change has been made in Rule 52(a), which applies in

bench trials. Rule 9(h), cross-referenced in paragraph (1)(A), is the procedural

mechanism for asserting the right to an allocation of fault created by Ark. Code Ann.

§ 16-61-202(c).

Paragraph (1) of subdivision (c) provides that, if certain conditions are met,

13
the jury must determine “the fault of all persons and entities, including those not

made parties, who may have joint liability or several liability” for the alleged harm. The

italicized language is taken from Ark. Code Ann. § 16-61-201 and is intended to be

coextensive with the statute. 

As stated paragraph (1)(A), the fault of a nonparty will be determined only

if the claimant has settled with the nonparty or the defending party has given the

notice required by Rule 9(h). Paragraph (1)(B) imposes another condition, i.e., the

defending party has carried its burden of establishing a prima facia case of the

nonparty’s fault. Placing this burden on the defending party is consistent with Act

649. See Ark. Code Ann. § 16-55-215 (Act 649 does not affect “existing law that

provides that the burden of alleging and proving fault is upon the person who seeks

to establish fault”). 

Paragraph (2) is based on language in former Section 16-55-202(a), and

paragraph (3) is taken from former Section 16-55-202(c)(2) & (3).

Rule 52. Findings by the Court.

(a)(1) Effect. If requested by a party at any time prior to entry of judgment, in all

contested actions tried upon the facts without a jury, the court shall find the facts

specially and state separately its conclusions of law thereon, and judgment shall be

entered pursuant to Rule 58; and in granting or refusing interlocutory injunctions,

the court shall similarly set forth the findings of fact and conclusions of law which

constitute the grounds of its action. Requests for findings are not necessary for

purposes of review. Findings of fact, whether based on oral or documentary

evidence, shall not be set aside unless clearly erroneous (clearly against the

preponderance of the evidence), and due regard shall be given to the opportunity

of the circuit court to judge the credibility of the witnesses. The findings of a master,

to the extent that the court adopts them, shall be considered as the findings of the

court. If an opinion or memorandum of decision is filed, it will be sufficient if the

findings of fact and conclusions of law appear therein. Findings of fact and

conclusions of law are unnecessary on decisions of motions under these rules.

(2) Allocation of Fault. (A) In an action for personal injury, medical injury,

wrongful death, or property damage tried without a jury, the court shall determine

the fault of all persons or entities, including those not made parties, who may have

joint liability or several liability for the alleged injury, death, or damage to property.

However, the court shall determine the fault of a nonparty only if:

(i) the claimant entered into a settlement agreement with the nonparty,

14
or a defending party has given notice, as provided in Rule 9(h), that the nonparty

was wholly or partially at fault; and

(ii) the defending party has carried the burden of establishing a prima

facia case of the nonparty’s fault.

(B) The court shall allocate the fault, on a percentage basis, among those

persons or entities, including those not made parties, found to have contributed to

the injury, death, or property damage.

(C) Assessment of the percentage of a nonparty’s fault shall be used only

for determining the percentage of fault of the parties. A finding of fault shall not

subject a nonparty to liability in any action or be introduced as evidence of liability

in any action.

* * *

Notes

The text of subdivision (a) has been designated as paragraph (1) and

paragraph (2) has been added. The latter implements Ark. Code Ann. §§ 16-60-201

& 16-60-202(c), as amended by Act 1116 of 2013. It is based in part on Section 2 of

Act 649 of 2003, codified at Ark. Code Ann. § 16-55-202(a), which was invalidated

on separation-of-powers grounds in Johnson v. Rockwell Automation, Inc., 2009 Ark.

241, 308 S.W.3d 135 (2009). A corresponding change has been made in Rule 49,

which applies to jury verdicts. For discussion, see the notes accompanying that rule.

II. Arkansas Rules of Appellate Procedure – Civil

Rule 8. Stay Pending Appeal.

* * *

(c) Supersedeas bond. (1) Whenever an appellant entitled thereto desires a stay on

appeal, he shall present to the court for its approval a supersedeas bond which shall

have such surety or sureties as the court requires. The bond shall be to the effect that

appellant shall pay to appellee all costs and damages that shall be affirmed against

appellant on appeal; or if appellant fails to prosecute the appeal to a final conclusion,

or if such appeal shall for any cause be dismissed, that appellant shall satisfy and

perform the judgment, decree or order of the circuit court. However, the maximum

bond that may be required in any civil action under any legal theory shall be limited

to twenty-five million dollars ($25,000,000), regardless of the amount of the

judgment.

15
(2) If a party proves by a preponderance of the evidence that the party who

has posted a bond in accordance with paragraph (1) of this subdivision (c) is

purposely dissipating or diverting assets outside of the ordinary course of its

business for the purpose of evading ultimate payment of the judgment, the court

may enter orders as are necessary to prevent dissipation or diversion, including

requiring that a bond be posted equal to the full amount of the judgment.

* * *

Notes

A second paragraph has been added to subdivision (c) of the rule, and the

original text designated accordingly. The second paragraph and a new sentence at

the end of the first paragraph are taken from Section 17 of Act 649 of 2003, codified

at Ark. Code Ann. § 16-55-214. Upon adoption of these changes, the statute would

be superseded pursuant to Ark. Code Ann. § 16-11-301. Also superseded would be

Ark. Code Ann. §§ 16-68-301–16-68-306, outdated provisions referenced in Section

16-55-214 that were enacted as part of the Civil Code of 1868.

If a money judgment is to be stayed during an appeal, the appellant – other

than the state or a state officer or agency – must post a supersedeas bond. Ark. R.

Civ. P. 62(d) & (e). The bond must be “to the effect that appellant shall pay to

appellee all costs and damages that shall be affirmed against appellant on appeal.” 

Ark. R. App. P.-Civ. 8(c). The phrase “all costs and damages” includes interest on

the judgment that would accrue pending appeal. Bailey v. Delta Trust & Bank, 359

Ark. 424, 198 S.W.3d 506 (2004). 

The final sentence of paragraph (1) sets the maximum amount at $25 million,

as does Ark. Code Ann. § 16-55-214. Like the statute, paragraph (2) provides an

exception when necessary to prevent the appellant from diverting or dissipating

assets to evade payment of the judgment.

16