Rule 78.Motion Day and Hearings on Motions

Reporter’s Notes to Rule 78: 1. Rule 78 differs considerably from FRCP 78. Under the latter, the federal courts are given broad discretion to formulate their own local rules concerning the disposition of motions. Thus, there is no requirement of uniformity of rules. This rule, however, tracks prior Arkansas law in an attempt to ensure uniformity in the method of hearing and deciding motions.

2. Under this rule, courts are not required to conduct motion days if local conditions make them impractical. This is a change from prior law as superseded Ark. Stat. Ann. § 27-1724 (Repl. 1962) required a motion day to be held on the first day of each term. Motion days are thus permissive under this rule whereas they were mandatory under prior Arkansas law. 3. Sections (b) and (c) of this rule are slightly modified versions of sections (b), (c), (d) and (e) of Rule 2 of the Uniform Rules for Circuit and Chancery Courts in this State. The idea is to have uniformity in the area of motions and Rule 2 of the Uniform Rules largely achieved this goal. Hence, its provisions are carried forwarded [forward] in Rule 78.

Additions to Reporter’s Notes, 1984 Amendments: Rule 78(b) is amended by adding the last sentence of the subsection to assure that no court will consider it necessary to grant a frivolous motion even though there has been no response to the motion.

Court’s Notes, 1995 Amendment: Subsection (d) is added to modify the effect of Act 582, 1, of 1991 which amended Ark. Code Ann. § 16-115-104 (Supp. 1993). Act 582 increased the time to hear writs of prohibition and mandamus to 45 days. The Court has concluded that the abbreviated procedure formerly prescribed in Ark. Code Ann. § 16-115-104 is necessary in election matters because of their urgency.

Addition to Reporter’s Notes, [February] 2001 Amendment: The title of subdivision (b) has been changed—from "Briefs" to "Motions, responses and briefs"— to more accurately reflect its contents. Also, a new sentence has been added at the end of the subdivision excepting summary judgment motions and responses from its time frames. As amended in 2001, Rule 56(c) governs the timing of motions and responses under that rule.

Addition to Reporter’s Notes, [May] 2001 Amendment: Subdivision (d) has been deleting the words "judge or chancellor" and replacing them 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.

Addition to Reporter’s Notes, 2002 Amendment: The provisions of subdivision (b) have been deleted and replaced with cross-references to Rule 6(c), which now governs the timing of motions, responses, and replies, and to Rule 7(b), which now governs their content. Under the new first sentence of subdivision (c), the court may not hold a hearing on a motion, except one that may properly be heard ex parte, until the time for reply has expired. A similar provision was added to Rule 56(c), which applies to motions for summary judgment, in 2001. The title of subdivision (c) has been revised to make plain that it does not refer simply to waiver of hearings, and stylistic changes have been made in subdivision (d).