Hicks v. Cook

D.P. Marshall Jr., Judge, concurring. I join the court’s opinion. But I write separately to express my concerns about our standard of appellate review. It is a contradiction. This case makes the point: one of the main issues dividing our court is which aspect of the standard — de novo or clear error — controls our review. The court defers to the circuit court’s findings of fact. My dissenting colleagues sift the facts and find them wanting. This choice, in my view, determines the differing conclusions on the merits. Our supreme court should clarify this important issue, which is passed over in these cases with routine citations but no analysis: what is the correct standard of appellate review in cases involving equity?

The court and my dissenting colleagues begin on common ground. We are supposed to review this equity matter de novo on the record as a whole, but not reverse unless the circuit court’s factual findings are clearly erroneous or clearly against the preponderance of the evidence. Rawe v. Rawe, 100 Ark. App. 90, 95 , 264 S.W.3d 549, 552 (2007). This is like saying that we review the judgment for green redness.

The plenary aspect of the standard has deep roots in chancery practice. It springs in part from the kind of appellate review given long ago in chancery cases where there was no testimony except by depositions. 9 W.S. Holdsworth, A History of English Law 353-58, 369 (1926). In that context, de novo review made some sense. A panel of appellate judges could reconsider afresh the decision of one chancellor on a paper record equally accessible at both levels. There is a broader historical context: before merger, different primary methods of appellate review existed for law cases and equity cases. In general, law cases were reviewed on writs of error, while equity cases were reviewed by appeal. Chief Justice Ellsworth explained the distinction: “An appeal is a process of civil law origin, and removes a cause entirely; subjecting the fact as well as the law, to a review and retrial: but a writ of error is a process of common law origin, and it removes nothing for re-examination but the law.” Wiscart v. D’Auchy, 3 Dallas 321 , 327 (1796); see generally Roscoe Pound, Appellate Procedure In Civil Cases 300-01 (1941) (describing further procedural variations in nineteenth-century equity appeals). These are the old truths that our courts still express when they say that equity cases are tried de novo on appeal. E.g., Ferguson v. Green, 266 Ark. 556, 563-64 , 587 S.W.2d 18, 23 (1979); Equity General Agents, Inc. v. O’Neal, 15 Ark. App. 302, 307 , 692 S.W.2d 789, 792 (1985).

In the ConAgra case, a unanimous supreme court expounded this kind of searching review on its way to reversing the decree.

Equity cases are tried de novo on appeal upon the record made in the chancery court, and the rule that this court disposes of them and resolves the issues on that record is well established; the fact that the chancellor based his decision upon an erroneous conclusion does not preclude this court’s reviewing the entire case de novo. An appeal in a chancery case opens the whole case for review. All of the issues raised in the court below are before the appellate court for decision and trial de novo on appeal in equity cases involves determination of fact questions as well as legal issues. The appellate court reviews both law and fact and, acting as judges of both law and fact as if no decision had been made in the trial court, sifts the evidence to determine what the finding of the chancellor should have been and renders a decree upon the record made in the trial court. The appellate court may always enter such judgment as the chancery court should have entered upon the undisputed facts in the record.

ConAgra, Inc. v. Tyson Foods, Inc., 342 Ark. 672, 677 , 30 S.W.3d 725, 728-29 (2000).

But our judicial system has changed. By the end of the nineteenth century, chancellors in most jurisdictions were routinely hearing live testimony. Charles Alan Wright, The Doubtful Omniscience of Appellate Courts, 41 Minn. L. Rev. 751 , 764-66 and n. 61 (1957). In 1978, the Arkansas Supreme Court adopted our Rules of Civil Procedure, which governed chancery and law cases and provided for clear-error review of the court’s factual findings. Ark. R. Civ. P. 1 & 52(a). Amendment 80 to the Arkansas Constitution and the implementing amendment to Rule of Civil Procedure 2 merged law and equity. Clark v. Farmers Exchange, Inc., 347 Ark. 81 , 83 n.1, 61 S.W.3d 140 , 141 n.1 (2001); Ark. R. Civ. P. 2, Addition to Reporter’s Notes, 2001 Amendment. But our often-stated rule of de novo review in cases involving equity has endured, even though the main reasons for it have not.

The clear-error aspect of our standard of review is more deferential. It embodies the command of Rule 52(a): “Findings of fact, whether based on oral or documentary evidence, 1 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 books are full of cases holding that we must defer to the trial court’s superior position to evaluate the credibility of witnesses — whom they see and hear and we do not. E.g., Hamilton v. Barrett, 337 Ark. 460, 465 , 989 S.W.2d 520, 523 (1999). In custody matters, moreover, we give special deference to the circuit court’s weighing of the multitude of circumstances comprising the best interest of children. Taylor v. Taylor, 345 Ark. 300, 304 , 47 S.W.3d 222, 224 (2001).

Review for clear error is incompatible with a trial de novo on appeal. We cannot act “as judges of both law and fact as if no decision had been made in the trial court, sift[ing] the evidence to determine what the finding of the [trial court] should have been . . . .[,]” ConAgra, 342 Ark. at 677 , 30 S.W.3d at 728 , and — at the same time — give “special deference to the superior position of the trial court to evaluate and judge the credibility of the witnesses . . .[,]” Sykes v. Warren, 99 Ark. App. 210, 211 , 258 S.W.3d 788, 788 (2007), reversing only if the decision below is clearly wrong. Rawe, 100 Ark. App. at 95-98 , 264 S.W.3d at 552-54 . This is an impossible task. And our imperfect performance of it leads to uncertainty and inconsistency.

When he was a member of this court, Justice Newbern revealed in a dissenting opinion what he called “perhaps the least guarded secret” about appellate review in our equity cases. Warren v. Warren, 270 Ark. 163, 170 , 603 S.W.2d 472, 475-76 (Ark. App. 1980). If the appellate court plans to reverse, then it emphasizes the de novo aspect of the standard of review; if the court plans to affirm, then it emphasizes the deference in the clear-error aspect of the standard. Ibid. Litigants deserve better.

Clear-error review promotes the healthy administration of justice by keeping trial courts and appellate courts in their proper places. Fact questions in nonjury cases are primarily for the trial courts, just as appellate courts sit primarily to correct errors of law and clarify the law. Clear-error review is not toothless. When the record as a whole leaves the appellate court with the definite and firm conviction that the circuit court made a mistake of fact, then the judgment is vulnerable to reversal or modification. ConAgra, 342 Ark. at 677 , 30 S.W.3d at 729 . Straight-up issues of law deserve and receive de novo review no matter what kind of case they arise in. Helena-West Helena School District v. Monday, 361 Ark. 82, 85 , 204 S.W.3d 514, 516 (2005). But findings of fact deserve deference, especially when they embody evaluations of witnesses’ demeanor.

Our law can and should maintain the traditional appellate flexibility to affirm a judgment as modified or remand for more findings in cases that, before Amendment 80, would have been chancery matters. Ferguson, 266 Ark. at 564-69 , 587 S.W.2d at 23-26 (Fogleman, J.). We do not need a “trial de novo on appeal” to preserve this flexibility. This out-dated expression no longer captures what happens on appeal. When we talk at the threshold of these cases about de novo review, sifting facts, and being judges of the facts, we confuse the primary appellate task. We should stop. We should review circuit courts’ findings of fact for clear error pursuant to Rule 52(a). And if we discern a clear error in a case involving equity, only then should we sift the facts as we decide whether justice would be better served by modifying the judgment or remanding the case.

This phrase was added to the Federal Rule in 1985, and to the Arkansas Rule in 1989, to make clear that the same standard of appellate review applies regardless of whether the trial court’s findings were based on oral or written evidence or both. Ark. R. Civ. P. 52, Addition to Reporter’s Notes, 1989 Amendment; Fed. R. Civ. P. 52, Advisory Committee Notes, 1985 Amendment.