VIII. Counsel; Provisional and Final Remedies; Suits in Forma Pauperis
Rule 64. Addition and withdrawal of counsel.
(a) When additional counsel is employed to represent any party in a case, said counsel shall immediately cause the clerk to enter his name as an attorney of record in the case and shall also immediately notify the court and opposing counsel that he has been employed in the case.
(b) A lawyer may not withdraw from any proceeding or from representation of any party to a proceeding without permission of the court in which the proceeding is pending. Permission to withdraw may be granted for good cause shown if counsel seeking permission presents a motion therefor to the court showing he (1) has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel; (2) has delivered or stands ready to tender to the client all papers and property to which the client is entitled; and (3) has refunded any unearned fee or part of a fee paid in advance, or stands ready to tender such a refund upon being permitted to withdraw.
History. Adopted July 9, 1984, effective September 1, 1984; amended July 6, 1987, effective September 21, 1987
Reporter's Notes to Rule 64: - Prior to 1984, there was no Rule 64. The Rule was adopted in 1984 to state the procedural requirements for withdrawal of counsel which had been addressed in Rule 9 of the Uniform Rules for Circuit and Chancery Courts. The new Rule is based upon DR2-2110 of the Code of Professional Conduct [superseded].
Reporter's Notes, 1987 Amendment: - As adopted in 1984, Rule 64 dealt only with withdrawal of counsel, a topic also covered by Rule 9 of the Uniform Rules for Circuit and Chancery Court. The 1987 amendment addresses the employment of additional counsel, an issue heretofore covered by Rule 8 of the Uniform Rules. The amendment makes no change in existing law.
Rule 65. Injunctions and temporary restraining orders.
(a)(1) Notice. A preliminary injunction or a temporary restraining order may be granted without written or oral notice to the adverse party or his attorney where it appears by affidavit or verified complaint that irreparable harm or damage will or might result to the applicant if such preliminary injunction or temporary restraining order is not granted. In all other cases, reasonable notice must be given to the adverse party or his attorney of the application for a preliminary injunction or temporary restraining order and an opportunity for such party or his attorney to be heard in opposition thereto. Every preliminary injunction or temporary restraining order granted without notice shall be filed with the clerk and a copy served upon the party restrained in the manner prescribed by Rule 4 of these rules.
(2) A restraining order or interlocutory injunction to stop the general and ordinary business operation of an individual, corporation, labor union, turnpike, railroad, canal company, municipal corporation, any building, erection or other work or to restrain a nuisance can only be granted by the court or any judge thereof upon reasonable notice of the time and place of the application therefor to the party enjoined. No such preliminary injunction or restraining order shall be effective until the party obtaining the injunction files his bond with the clerk, together with good and sufficient securities to be approved by the clerk, conditioned that the party giving the bond will pay to the party enjoined such damages as he may sustain if it is finally decided that the injunction ought not to have been granted.
(b) Hearing. Upon application by the party against whom the preliminary injunction or temporary restraining order has been issued without notice, the Court shall, as expeditiously as possible, hold a hearing to determine whether the preliminary injunction or temporary restraining order should be dissolved. Where a hearing is required to be held on an application for a preliminary injunction or temporary restraining order, the Court may order the trial of the action on the merits advanced and consolidated with the hearing on the application. When consolidation is not ordered, any evidence received upon application for a preliminary injunction or temporary restraining order which would be admissible upon the trial on the merits becomes a part of the record of the trial and need not be repeated upon the trial. This subdivision (b) shall be so construed and applied as to save to the parties any rights they may have to trial by jury.
(c) Duration. A preliminary injunction or temporary restraining order not otherwise earlier dissolved shall remain in effect until a final judgment or decree is entered; provided that such preliminary injunction or temporary restraining order may, upon motion and for good cause shown, be made permanent upon final hearing of the cause.
(d) Security. As a condition precedent to the issuance of a preliminary injunction or temporary restraining order, the Court may require the giving of security by the applicant in such sum as the Court deems proper for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such security shall be required of the State of Arkansas or any officer or agency thereof.
The provisions of Rule 65.1 apply to any surety upon a bond or undertaking under this rule.
(e) Form and Scope of Injunction or Restraining Order. Every order granting an injunction or restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained or mandated; and it is binding only upon the parties to the action, their officers, agents, servants, employees and attorneys and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.
(f) Contempt. Disobedience of an injunction or restraining order may be punished by the Court as a contempt.
Reporter's Notes to Rule 65: - 1. Rule 65 marks a significant departure from FRCP 65. Whereas the latter makes a distinction between preliminary injunctions and temporary restraining orders, this rule treats them equally insofar as the procedures are concerned for obtaining either remedy. Thus, where it appears from affidavit or verified complaint that irreparable harm will or might result, the court has the authority to issue a preliminary injunction or temporary restraining order without notice to the opposing party. Under FRCP 65, notice is always a requirement for the issuance of a preliminary injunction.
2. This rule (a)(1) is generally in accord with prior Arkansas law. Superseded Ark. Stat. Ann. 32-201 (Repl. 1962) provided that the court could direct that reasonable notice be given to the party against whom an injunction was sought. Superseded Ark. Stat. Ann. 32-202 (Repl. 1962) required mandatory notice when a defendant had already answered and superseded Ark. Stat. Ann. 32-103 (Repl. 1962) provided for the issuance of a temporary injunction without notice in certain instances as where irreparable harm was threatened. However, superseded Ark. Stat. Ann. 32-203 (Repl. 1962) provided that in a number of specific instances, notice was required on an application for a preliminary injunction. This rule (a)(1) is designed to simplify prior Arkansas law by providing for the issuance of a preliminary injunction or temporary restraining order without notice only where it appears that irreparable harm or injury will or might result. In all other instances, notice of such application is required. Rule (a)(2) requires prior notice and a bond before a preliminary restraining order or injunction may be effective as against designated businesses.
3. Section (b) is designed to afford a hearing to the person against whom an injunction or temporary restraining order has been issued without notice. Substantial rights are often affected and for this reason, such hearings should be heard as expeditiously as possible. Where the hearing is held on the right of the applicant to have an injunction or restraining order issued, the court may delay the hearing until the entire case can be heard on the merits. Where harm may result, however, from such delay, the better practice is to proceed with the hearing on such application.
4. Section (d) deviates substantially from the security provisions of the Federal Rule and also changes prior Arkansas law. Under this rule, the trial court is vested with discretion to determine when security is required and the amount of such security when required. Both FRCP 65 and superseded Ark. Stat. Ann. 32-206 (Repl. 1962) require the posting of adequate security as a condition precedent to the issuance of a preliminary injunction; therefore, this section does modify prior Arkansas law. Under this rule, preliminary injunctions and temporary restraining orders are placed on equal footing and since the trial court is in the best position to know whether security should be required, it is given the discretion to make such a determination.
5. Section (e) is identical to FRCP 65(d) and is designed to insure specificity in the drafting of injunctions and restraining orders. The intent is to insure that there is no doubt or confusion as to the conduct enjoined or restrained. Likewise, this section makes clear the identity of all persons who are bound by the injunction or order. This provision should have little effect on Arkansas practice and procedure.
6. Section (e) of FRCP 65 is omitted and Section (f) is added to this rule. The latter section simply provides that disobedience of any injunction or order may be treated as a contempt by the court. Prior Arkansas law in this area was codified as superseded Ark. Stat. Ann. 32-401 (Repl. 1962) although it is doubtful that specific statutory authority was necessary to enable the court to punish one for violating the terms of an injunction or restraining order.
Rule 65.1. Security; proceedings against sureties.
Whenever these rules require or permit the giving of security by a party and security is given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits himself to the jurisdiction of the court and irrevocably appoints the clerk of the court as his agent upon whom any papers affecting his liability on the bond may be served. His liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court who shall forthwith mail copies to the sureties if their addresses are known.
Reporter's Notes to Rule 65.1: - 1. With the exception of the deletion of the references to admiralty and maritime claims, Rule 65.1 is otherwise identical to FRCP 65.1. This rule does not work any changes in Arkansas law as the substance of the rule has heretofore been in effect. Superseded Ark. Stat. Ann. 27-2107.3 (Repl. 1962), which governed supersedeas bonds was almost verbatim with this and FRCP 65.1.
2. With reference to bonds which were posted in order to obtain injunctive relief, superseded Ark. Stat. Ann. 32-310 (Repl. 1962) provided essentially the same procedure for reducing a claim against a surety to judgment.
Rule 66. Receivers.
(a) Appointment. Circuit courts may appoint receivers for any lawful purpose when such appointment shall be deemed necessary and proper. The receiver shall give bond, with sufficient security, in an amount to be approved by the court, for the benefit of all persons in interest. The receiver shall likewise take an oath to faithfully perform the duties reposed in him by the court.
(b) Reports. The receiver shall make a report of his proceedings and actions every six (6) months or at such other times as directed by the court. All moneys or property collected by the receiver shall be accounted for and deposited into court or otherwise be subject to the orders of the court.
(c) Employment of Others. Subject to the approval of the court, the receiver shall have power to employ an attorney, an accountant or such other persons as may be necessary to conduct the business or affairs entrusted to the receiver. The wages or fees paid by the receiver shall be paid as an expense from the assets collected by him.
(d) Removal. Receivers may be removed at any time by the court for good cause. Substitute receivers shall be subject to the same requirements as the previous receiver.
(e) Dismissal of Action. No action wherein a receiver has been appointed shall be dismissed except by order of the court.
History. Amended March 13, 2003
Reporter's Notes to Rule 66: - 1. Rule 66 varies substantially in form from FRCP 66. Whereas the latter attempts to incorporate by reference existing federal statutes dealing with receiverships, this rule attempts to define the procedures used in receiverships.
2. Receiverships were formerly governed by superseded Ark. Stat. Ann. 36-101, et seq. (Repl. 1962). The procedure remains essentially the same under Rule 66 as it did under prior Arkansas law. No attempt has been made to define and identify those situations in which the appointment of a receiver is proper; accordingly, resort must still be made to traditional equitable grounds for the appointment of a receiver. This rule is not intended to cover receivers appointed pursuant to Ark. Stat. Ann. 66-4805 (Repl. 1966) for insolvent insurance companies. The latter involves the insurance commissioner as the statutory receiver and the insurance code contains specific provisions for such receiverships.
3. Following the example of superseded Ark. Stat. Ann. 36-104 (Repl. 1962), no attempt has been made to define the powers of a receiver. The extent of such powers must be determined by reference to traditional equitable principles. This power is largely determined by the court which should exercise close supervision and control over the receiver's actions.
Addition to Reporter's Notes, 2003 Amendment: - In light of Constitutional Amendment 80, the reference to "courts of equity" in subdivision (a) has been replaced with "circuit courts."
Rule 67. Deposit in court.
In an action in which any part of the relief sought is a judgment for a sum of money or the disposition of a sum of money or the disposition of any other thing capable of delivery, a party, upon notice to every other party, and by leave of court, may deposit with the court all or any part of such sum or thing. Money or property paid into court under this rule shall not be withdrawn except upon the express, written order of the court and shall be delivered only to the person determined by the court to be entitled thereto.
Reporter's Notes to Rule 67: - 1. Rule 67 is a slightly modified version of FRCP 67. The only variation is found in the last sentence and this change is designed to safeguard the money or object on deposit by insuring that it shall not be released without the express, written order of the court and only then to the person whom the court has determined to be entitled to possession.
2. Prior Arkansas law was codified as superseded Ark. Stat. Ann. 27-1601 (Repl. 1962). Under this rule, however, a party must initiate the deposit as opposed to having the court take the initiative. The deposit must be with leave of the court and upon notice to the opposing party.
Rule 68. Offer of judgment.
At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and judgment shall be entered. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment exclusive of interest from the date of offer finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days prior to the commencement of hearings to determine the amount or extent of liability. For purposes of this rule, the term "costs" is defined as reasonable litigation expenses, excluding attorney's fees.
History. Amended November 21, 1988, effective January 1, 1989
Reporter's Notes to Rule 68: - 1. With the exception of one minor change, Rule 68 is otherwise identical to FRCP 68. This change simply provides for the entry of judgment where an offer of judgment has been accepted as opposed to the provision found in FRCP 68 which authorizes the clerk to enter judgment. This rule is not concerned with the mechanics of preparing and entering the judgment and resort to Rule 58 is necessary to find the procedure for preparing and entering judgment.
2. This rule is substantially the same as superseded Ark. Stat. Ann. 27-1501, et seq. (Repl. 1962). It does, however, follow the provision of FRCP 68 concerning the time for accepting an offer of settlement. Thus, a party is given ten days to accept such an offer as opposed to the five day period allowed under prior Arkansas law. The purpose behind this rule and FRCP 68 is to encourage the early settlement of claims and to protect the party who is willing to settle from the expense and burden of costs which subsequently accrue. Staffend v. Lake Cent. Airlines, Inc., 47 F.R.D. 218 (D.C., Ohio, 1969).
Addition to Reporter's Notes, 1988 Amendment: - The amendment broadens the definition of the term "costs" for purposes of this rule. In Darragh Poultry & Livestock Equip. Co. v. Piney Creek Sales, Inc., 294 Ark. 427, 743 S.W.2d 804 (1988), the Supreme Court held that, as used in this rule, the term "costs" is limited to costs authorized by statute, a result consistent with prior cases adopting a narrow definition of the term in other contexts. However, a broader approach is warranted with respect to this rule, which is designed to encourage early settlement. The amended rule thus permits assessment of not only those costs authorized by statute, but also reasonable expenses typically incurred in the course of litigation. As a result, expenses disallowed under Darragh - e.g., meals and lodging - are now available under the amended rule. Attorney's fees, however, are expressly excluded from the new definition.
Rule 69. Execution discovery.
In aid of a judgment or execution, a judgment creditor or his successor in interest, when that interest appears of record, may obtain discovery from any person, including the judgment debtor, in the manner provided in these rules.
History. Adopted July 9, 1984, effective September 1, 1984
Reporter's Notes to Rule 69: - Prior to 1984, there was no Rule 69. The Rule was adopted in 1984 to make the discovery procedures available to parties pursuing execution. The Rule is not intended to supersede the independent action for discovery found in Ark. Stat. Ann. 30-901 through 30-908 (Repl. 1979), however, it supersedes Ark. Stat. Ann. 30-906 (Repl. 1979), as it is to an extent duplicative of that section.
Rule 70. Judgment for specific acts; vesting title.
If a judgment directs a party to execute a conveyance of land or to deliver deeds or other documents or to perform any other specific act and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court and the act when so done has like effect as if done by the party. On application of the party entitled to performance, the clerk shall issue a writ of attachment or sequestration against the property of the disobedient party to compel obedience to the judgment. The court may also in proper cases adjudge the party in contempt. If real or personal property is within the jurisdiction of the court, in lieu of directing a conveyance thereof, it may enter a judgment divesting the title of any party and vesting it in others and such judgment has the effect of a conveyance executed in due form of law. When any order or judgment is for the delivery of possession, the party in whose favor it is entered is entitled to a writ of execution or assistance upon application to the clerk.
Reporter's Notes to Rule 70: - 1. With the exception of minor wording changes to adapt FRCP 70 to state practice, Rule 70 is substantially the same as the Federal Rule. This rule applies only after judgment has been entered, DeBeers Consol. Mines, Ltd. v. United States, 325 U.S. 212, 65 S. Ct. 1130 (1945), and gives the trial court power to deal with parties who refuse to obey and comply with orders to do specific acts. The acts contemplated by this rule have traditionally been ordered by equity courts and it is likely that such courts will have more occasion to exercise the authority conferred by this rule. The rule is not limited, however, to equity cases and under proper circumstances, law courts may well exercise the authority conferred therein.
2. This rule does not purport to grant additional authority to a trial court to affect title to property outside the jurisdiction of the court. It simply recognizes the traditional jurisdictional limits of courts and in no way attempts to enlarge such limits.
3. This rule does not affect Ark. Stat. Ann. 29-128 (Repl. 1962) which requires that any decree which orders a conveyance or passing of title to real property be recorded in the county wherein the real property is located within one year from the entry of the decree.
4. This rule recognizes the inherent power of the court to adjudge a party in contempt for disobedience to its order and judgment. This power has also been recognized in Ark. Stat. Ann. 34-901(3) (Repl. 1962).
Rule 71. Process in behalf of and against persons not parties.
When an order is made in favor of a person who is not a party to the action, he may enforce obedience to the order by the same process as if he were a party; and, when obedience to an order may be lawfully enforced against a person who is not a party, he is liable to the same process for enforcing obedience to the order as if he were a party.
Reporter's Notes to Rule 71: - 1. Rule 71 is identical to FRCP 71. The Federal Rule has remained unchanged since its adoption and has provoked little controversy. It does not attempt to say when an order can be made in favor of or against a person not a party. Rather it merely provides that when this can be done, non-parties have recourse to, and are subject to, process in the same manner as parties. Wright & Miller, Federal Practice and Procedure, Section 3031.
2. Prior Arkansas law contained no comparable provision. Normally, under prior law, a judgment, order or decree was ineffective against a person not a party to the action. Superseded Ark. Stat. Ann. 29-107 (Repl. 1962). There are situations, however, where even without specific statutory authority, the Arkansas courts have permitted a non-party to enforce an order or to enforce an order against a non-party, i.e., where an assignee of a purchaser at a judicial sale obtains a writ of assistance or where an injunction is enforced against a non-party who has knowledge of the provisions of the order. Hudkins v. Ark. State Bd. of Optometry, 208 Ark. 577, 187 S.W.2d 538 (1945); Hickinbotham v. Williams, 228 Ark. 46, 305 S.W.2d 841 (1957).
Rule 72. Suits in forma pauperis.
(a) Every indigent person who shall have a cause of action against another may petition the court in which the action is pending, or in which it is intended to be brought, for leave to prosecute the suit in forma pauperis.
(b) All such petitions shall be accompanied by an assertion of indigency, verified by a supporting affidavit. The affidavit form will be provided by the court for such purposes. Any petition not in compliance with this provision will be returned to the petitioner. There shall be attached to the petition a copy of the complaint or proposed complaint.
(c) The court to which such petition is presented, if satisfied of the facts alleged that the petitioner has a colorable cause of action, may by order allow him to prosecute his suit in forma pauperis. Every person so permitted to proceed in forma pauperis may prosecute his suit without paying any fees to the officers of the court, and shall not be prevented from prosecuting the same by reason of his being liable for the costs of a former suit brought by him against the same defendant.
(d) No person shall be permitted to prosecute any action of slander, libel or malicious prosecution in forma pauperis.
History. Amended December 21, 1987, effective March 14, 1988
Reporter's Notes. - New Rule 72 tracks, with some changes, the former statutory provisions governing suits by indigents. A similar rule was proposed in 1986 but was withdrawn by the Supreme Court prior to its effective date. The former statutes, Ark. Stat. Ann. 27-401, 27-403 - 27-406 (Repl. 1979), were repealed by Act 208, 75th General Assembly, in 1985. Section 27-402 [Ark. Code Ann. 16-58-133 (1987)], adopted in 1981 to replace an earlier provision, was not repealed; however, it is superseded by this rule, which contains in paragraph (b) the requirements of 27-402. The new rule departs from the former statutes and the rule previously proposed by the Court in two ways. First, the rule does not require that the trial court assign counsel, without fee, for the petitioner. Second, the rule does not include the statutory provision allowing the trial court, in its discretion, to annul the in forma pauperis order in the event of "improper conduct" or "wilful or unnecessary delay" on the part of the petitioner. The Rules of Civil Procedure contain adequate sanctions that the court may employ in the event of such misconduct.