Ark. R. Civ. P. 59 (2026)

Rule 59. New Trials. (a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the claim on the application of the party aggrieved, for any of the following grounds materially affecting the substantial rights of such party: (1) any irregularity in the proceedings or any order of court or abuse of discretion by which the party was prevented from having a fair trial; (2) misconduct of the jury or prevailing party; (3) accident or surprise which ordinary prudence could not have prevented; (4) excessive damages appearing to have been given under the influence of passion or prejudice; (5) error in the assessment of the amount of recovery, whether too large or too small; (6) the verdict or decision is clearly contrary to the preponderance of the evidence or is contrary to the law; (7) newly discovered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial; (8) error of law occurring at the trial and objected to by the party making the application. On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment. (b) Time for Motion. A motion for a new trial shall be filed not later than 10 days after the entry of judgment. A motion made before entry of judgment shall become effective and be treated as filed on the day after the judgment is entered. If the court neither grants nor denies the motion within 30 days of the date on which it is filed or treated as filed, it shall be deemed denied as of the 30th day. (c) Form of Motion. The motion must be in writing setting forth in separate paragraphs the grounds or assignments of error relied upon for a new trial. The grounds mentioned in section (a)(2), (3) and (7) of this rule must be supported by affidavits showing their truth and may be controverted in the same manner.

(d) Time for Filing Affidavits. When a motion for a new trial is based upon affidavits, they shall be filed with the motion. The opposing party shall have 10 days after service within which to file opposing affidavits which period may be extended for an additional period not exceeding 20 days either by the court for good cause shown or by the parties by written stipulation. The court may permit reply affidavits. (e) On Initiative of Court. Not later than 10 days after entry of judgment, the court on its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party. After giving the parties notice and an opportunity to be heard on the matter, the court may grant a motion for a new trial, timely filed, for a reason not stated in the motion. In either case, the court shall specify in the order the ground therefor. (f) Motion for New Trial Not Necessary for Appeal. A party who has preserved for appeal an error that could be the basis for granting a new trial is not required to make a motion for new trial as a prerequisite for appellate review of that issue. Reporter’s Notes to Rule 59: 1. Rule 59 represents a combination of the provisions found in FRCP 59 and features of prior Arkansas law as codified in superseded Ark. Stat. Ann. §§ 27- 1901, et seq. (Repl. 1962). This rule will apply to both legal and equitable causes and in equity court replaces the bill of review which is abolished in Rule 60. 2. FRCP 59 does not define the grounds upon which new trials may be granted. Instead, it simply incorporates by reference those grounds traditionally recognized by the federal courts. Rather than refer to a body of law by reference, Section (a) of this rule specifies the grounds upon which a new trial may be granted. These grounds are lifted from superseded Ark. Stat. Ann. § 27-1901 (Repl. 1962). Thus, no changes are effected in Arkansas law by Section (a). The final sentence of FRCP 59(a) is made a part of this rule so as to permit the granting of similar relief in cases tried without a jury, whether the claims be legal or equitable. This is implicit in superseded Ark. Stat. Ann. § 27-1901 (Repl. 1962), but it is expressly made a part of Rule 59. 3. Section (b) marks a significant departure from prior Arkansas practice. Under this section, a motion for new trial must be filed within ten days after entry or filing of the judgment. Under prior Arkansas law, as codified in superseded Ark. Stat. Ann. § 27-1904 (Repl. 1962), such a motion had to be filed within fifteen days following the verdict or decision, regardless of when the formal judgment or decree was actually filed. Henderson v. Skerczak, 247 Ark. 446, 446 S.W.2d 243 (1969); Peek v. Meadors, 255 Ark. 347, 500 S.W.2d 333 (1973). 4. Section (c) is not found in FRCP 59 but is practically identical to superseded Ark. Stat. Ann. § 27-1905 (Repl. 1962). The purpose of this provision is to ensure that a motion based upon the grounds set forth in Section (a)(2) and (a)(3) and (a)(7), is supported by affidavit in order to avoid (prevent) groundless or baseless motions from being filed. 5. Section (d) is taken from Section (c) of FRCP 59. The word "served" has been changed to "filed" in keeping with the overall scheme of these rules. 6. Section (e) is identical to Section (d) of FRCP 59. There was no specific provision under prior Arkansas law which gave the trial court the authority to order a new trial on its own initiative although the court may have had the inherent power to do so.

7. Section (f) is identical to FRCP 59(e). There was no comparable provision under prior Arkansas law and its effect is to place motions under Rule 59(f) on the same footing, timewise, with motions for new trials. Addition to Reporter’s Notes, 1982 Amendment: The word "clearly" was added to Rule 59(a)(6). Addition to Reporter’s Notes, 1983 Amendment: Rule 59(f) is deleted. The time within which a trial court may modify, set aside or vacate judgment appears in Rule 60(b). Addition to Reporter’s Notes, 1984 Amendments: Rule 59(f) is added to reinstate the principle of superseded Ark. Stat. Ann. § 27-2127.5 (Repl. 1962). The matter of the necessity of a motion for new trial to preserve error for appeal had not been addressed in these rules. Addition to Reporter’s Notes, 1994 Amendment: The first sentence of subdivision (a) is amended by substituting the word "claim" for the word "issues." The amendment is intended to reflect case law prohibiting a partial new trial on the issue of damages (or the issue of liability), on the theory that a jury’s verdict cannot be divided by the court. E.g., Smith v. Walt Bennett Ford, 314 Ark. 591, 864 S.W.2d 817 (1993). As amended, subdivision (a) does not allow a partial new trial limited to a given issue. However, it expressly authorizes, in cases involving multiple parties or multiple claims, a partial new trial with respect to a single party or single claim. Addition to Reporter’s Notes, 1999 Amendment: Subdivision (b) has to amended by adding a new second sentence that effectively overturns Benedict v. National Bank of Commerce, 329 Ark. 590, 951 S.W.2d 562 (1997), which held that a motion for new trial filed before entry of judgment is ineffective. As amended, the rule reflects the practice in the federal courts. The new third sentence provides that a motion for new trial not ruled on by the court within 30 days of its filing (or within 30 days of the date it is treated as filed) is "deemed denied as of the 30th day." This provision also appears in Rule 4(b)(1) of the Rules of Appellate Procedure–Civil but was added here as a reminder to counsel. In addition, the title of the rule has been modified by striking the words "amendment of judgments." A provision in the original version of the rule dealing with this issue was deleted in 1983. See Addition to Reporter’s Notes, 1983 Amendment. Addition to Reporter’s Notes, 2003 Amendment: Subdivision (f) has been rewritten to reflect the holding in Stacks v. Jones, 323 Ark. 643, 916 S.W.2d 120 (1996).

HISTORY Amended May 17, 1982; amended May 16, 1983; amended July 9, 1984, effective September 1, 1984; subsection (a) amended December 5, 1994, effective January 15, 1995; amended January 28, 1999; amended March 13, 2003.

Rule 60. Relief from Judgment, Decree or Order. (a) Ninety-Day Limitation. To correct errors or mistakes or to prevent the miscarriage of justice, the court may modify or vacate a judgment, order or decree on motion of the court or any party, with prior notice to all parties, within ninety days of its having been filed with the clerk. (b) Exception; Clerical Errors. Notwithstanding subdivision (a) of this rule, the court may at any time, with prior notice to all parties, correct clerical mistakes in judgments, decrees, orders, or other parts of the record and errors therein arising from oversight or omission. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court and thereafter while the appeal is pending may be so corrected with leave of the appellate court. (c) Grounds for Setting Aside Judgment, Other Than Default Judgment, After Ninety Days. The court in which a judgment, other than a default judgment [which may be set aside in accordance with Rule 55(c)] has been rendered or order made shall have the power, after the expiration of ninety (90) days of the filing of said judgment with the clerk of the court, to vacate or modify such judgment or order: (1) By granting a new trial where the grounds therefor were discovered after the expiration of ninety (90) days after the filing of the judgment, or, where the ground is newly discovered evidence which the moving party could not have discovered in time to file a motion under Rule 59(b), upon a motion for new trial filed with the clerk of the court not later than one year after discovery of the grounds or one year after the judgment was filed with the clerk of the court, whichever is the earlier; provided, notice of said motion has been served within the time limitations for filing the motion. (2) By a new trial granted in proceedings against defendants constructively summoned, and who did not appear, upon a motion filed within two years after the filing of the judgment with the clerk of the court, or within one year after a certified copy of the judgment has been served upon the defendant, whichever shall be the earlier, upon security for costs being given; provided notice of the filing of said motion has been served upon the adverse party within the time limitations for filing the motion. (3) For misprisions of the clerk. (4) For misrepresentation or fraud (whether heretofore denominated intrinsic or extrinsic) by an adverse party. (5) For erroneous proceedings against an infant or person of unsound mind where the condition of such defendant does not appear in the record, nor the error in the proceedings. (6) For the death of one of the parties before the judgment in the action. (7) For errors in a judgment shown by an infant within twelve (12) months after reaching the age of eighteen (18) years, upon a showing of cause.

(d) Valid Defense to Be Shown. No judgment against a defendant, unless it was rendered before the action stood for trial, shall be set aside under this rule unless the defendant in his motion asserts a valid defense to the action and, upon hearing, makes a prima facie showing of such defense. (e) Valid Cause of Action to Be Shown. No judgment, unless it was rendered before the action stood for trial, shall be set aside on the motion of a plaintiff unless the plaintiff makes a prima facie showing of a valid cause of action. (f) Defendant Constructively Summoned—Restoration of Property. When a judgment is set aside on the motion of a defendant constructively summoned, the court may order the plaintiff in the action to restore to the defendant any money of the defendant paid under the judgment or any property of the defendant obtained by the plaintiff under it and yet remaining in his possession and pay to the defendant the value of any property which may have been taken under an attachment in the action or under the judgment and not restored. The title of purchasers in good faith to any property sold under an attachment or judgment shall not be affected by a new trial under subsection (c)(2) of this rule, except the title of property obtained by the plaintiff and not bought of him in good faith by others. (g) Exception for Divorce Decrees. No judgment granting a divorce, except as it relates to alimony, shall be set aside under subsection (c)(2) of this rule. (h) Premature Judgment. Rendering judgment prior to the time fixed for filing an answer shall be deemed a clerical misprision. No misprision of the clerk shall be ground for appeal until relief has been sought in the circuit court and action taken there. (i) Motion to Vacate or Modify May Be Heard First. The circuit court may first try and decide upon the grounds for vacating or modifying a judgment before trying or deciding the validity of the defense or cause of action. (j) Injunction Pendente Lite. The party seeking to vacate or modify a judgment may obtain an injunction suspending proceedings, on the whole or in part, upon showing by affidavit or exhibition of the record that it is probable that he is entitled to have such judgment, decree or order vacated or modified; however, such a showing shall not be required if the judgment, decree or order was rendered before the action stood for trial. (k) Independent Action to Set Aside Judgment—Writs Abolished. A motion under this rule does not affect the finality of a judgment or decree or suspend its operation, except as provided herein. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment who was not actually personally served with process or to set aside a judgment or decree for fraud upon the court. Writs of coram nobis in civil cases, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment or decree shall be by motion as prescribed in these rules or by an independent action. Reporter’s Notes to Rule 60: 1. This rule is substantially different from FRCP 60. Its purpose is to substantially retain existing Arkansas law on the subject. The Court feels that the adoption of FRCP 60 would detract from the stability of final judgments and that the changes which would

be made in Arkansas law are highly undesirable. The distinction between intrinsic and extrinsic fraud as a basis for relief from a judgment is considered an important and desirable one. 2. This rule would make the same provision for relatively unlimited control of judgments by circuit courts as that made for chancery courts by Ark. Stat. Ann. §§ 22-406.1 et seq. (Repl. 1962). This makes for uniformity not only as between the two courts but also as among judgments in a particular court, regardless of the time elapsed between entry of the judgment and expiration of a term of court. 3. Under prior Arkansas law, the trial court lost jurisdiction to set aside or modify a judgment after term time except on those grounds specified in superseded Ark. Stat. Ann. § 29-506 (Repl. 1962). Davis v. McBride, 247 Ark. 895, 448 S.W.2d 37 (1969); Hardin v. Hardin, 237 Ark. 237, 372 S.W.2d 260 (1973). Under prior Arkansas law, the trial court had the power to correct, in certain instances, its judgment even after an appeal had been docketed in the Arkansas Supreme Court. Superseded Ark. Stat. Ann. § 27-2129.1 (Repl. 1962). Under this rule, however, once the appeal is docketed, a change can be made only with leave of the Supreme Court. 4. In subsection (c)(1) the one year limitation follows the recommendation of the Committee in its proposed Rule 60. 5. Subsection (k) follows Section (b) of FRCP 60 by permitting a court to entertain an independent action to relieve a party from a judgment. Bankers Mortgage Co. v. United States, 423 F. 2d 73 (C.C.A. 5th, 1970), cert. den., 90 S. Ct. 2242. Arkansas has previously recognized the power of an equity court to review a judgment from a court of law, although such power is severely limited. Cotton v. Hamblin, 233 Ark. 65, 342 S.W.2d 478 (1961). 6. Section (k) provides for the abolition of writs of error and bills of review. While these have not been common under prior Arkansas law, they have been permitted under Article 7, Section 4, of the Arkansas Constitution. However, any relief which could be granted by a court of equity under a bill of review can also be afforded under this rule; hence, it should have little effect on Arkansas practice and procedure. Additions to Reporter’s Notes, 1984 Amendments: Rule 60(b) is modified to remove the references to the law prior to January 1, 1970, and to replace it with language from cases describing the broad power of a court to modify or set aside its judgment during the term of court in which it was entered. See Karoley v. A.R. & T. Electronics, 235 Ark. 609, 363 S.W.2d 120 (1962) and the cases cited in that opinion. Rule 60(c)(5) is amended to remove "married women" from the classes of persons to which the Rule applies. The caption of the Rule is amended to include "Modification." Addition to Reporter’s Note, 1990 Amendment: Rule 60 has been amended to eliminate any overlap with Rule 55. Under former subdivision (c)(7) of Rule 60, a trial court could set aside a judgment "[f]or unavoidable casualty or misfortune preventing the party from appearing or defending." The 1990 amendment deletes this provision, which has been cited in default judgment cases. E.g., McGee v. Wilson, 275 Ark. 466, 631 S.W.2d 292 (1982). Moreover, the

new opening language of paragraph (c) specifically states that Rule 60 does not apply to default judgments, "which may be set aside in accordance with Rule 55(c)." Addition to Reporter’s Notes, 2000 Amendment: Subdivisions (a) and (b) of the rule have been revised in response to case law. In addition, subdivision (c) has been amended by changing the cross-reference in paragraph (1) from Rule 59(c) to Rule 59(b), and by revising paragraph (4). As originally adopted, subdivision (a) provided that the trial court could "at any time" correct clerical mistakes and errors "arising from oversight or omission." Under subdivision (b), the trial court could "correct any error or mistake or to prevent the miscarriage of justice" by modifying or setting aside a judgment, decree or order within 90 days of its having been filed with the clerk. Despite this apparent dichotomy, the Supreme Court held that the 90-day limitation in subdivision (b) also applied to subdivision (a). See, e.g., Ross v. Southern Farm Bureau Cas. Ins. Co., 333 Ark. 227, 968 S.W.2d 622(1998); Phillips v. Jacobs, 305 Ark. 365, 807 S.W.2d 923(1991). The Supreme Court subsequently held in Lord v. Mazzanti, 335 Ark 25, 2 S.W.3d 76 (1999), that "clerical mistakes" under subdivision (a) can be corrected at any time and overruled any language to the contrary in Phillips and Ross. This amendment is consistent with Lord v. Mazzanti, supra. As amended, subdivision (a) is a slightly modified version of former subdivision (b). It states the general rule that the court may, with prior notice to all parties, modify a judgment, decree or order within 90 days of its filing with the clerk to "correct errors or mistakes or to prevent the miscarriage of justice." Revised subdivision (b) expressly states an exception for "clerical mistakes" and errors "arising from oversight or omission," which may be corrected at any time with prior notice to all parties. Amended paragraph (4) of subdivision (c) allows a judgment, decree or order to be modified or set aside "[f]or misrepresentation or fraud (whether heretofore denominated intrinsic or extrinsic) by an adverse party." This language, taken in part from Rule 60(b)(3) of the Federal Rules of Civil Procedure, eliminates the distinction between intrinsic and extrinsic fraud, a distinction that has been described as "shadowy, uncertain, and somewhat arbitrary." Howard v. Scott, 125 S.W. 1158, 1166 (Mo. 1909); see also C. Wright & A. Miller, Federal Practice & Procedure 2861 (1995) (distinction is "very troublesome and unsound"). Under the prior rule, only extrinsic fraud was a ground for setting aside or modifying a judgment. This has resulted in unfairness. See, e.g., Ward v. McCord, 61 Ark. App. 271, 966 S.W.2d 925 (1998) (husband’s concealment of bank account from wife during negotiations leading to property settlement in divorce action was not extrinsic fraud); Office of Child Support Enforcement v. Mitchell, 61 Ark. App. 54, 964 S.W.2d 218 (1998) (mother’s failure to mention in affidavit filed in paternity case that a man other than defendant could have been the father of her child was not extrinsic fraud); Office of Child Support Enforcement v. Offutt, 61 Ark. App. 207, 966 S.W.2d 275 (1998) (conduct of attorney in preparing precedent containing findings not made by the court and mailing it to the judge with a letter requesting that he sign the order if no objection was received from opposing counsel did not constitute extrinsic fraud). Addition to Reporter’s Notes, 2001 Amendment: The references to "trial court" in subdivisions (h) and (i) have been replaced with "circuit court." Constitutional Amendment 80

established the circuit courts as the "trial courts of original jurisdiction" in the state and abolished the separate chancery and probate courts.

HISTORY Amended July 9, 1984, effective September 1, 1984; amended December 10, 1990, effective February 1, 1991; amended January 27, 2000; amended May 24, 2001, effective July 1, 2001.