Coots v. Bandera

2016 Ark. App. 167

• Court: Court of Appeals of Arkansas
• Decided: March 9, 2016
• Docket: CV-15-764
• Status: Published

Opinion

Cite as 2016 Ark. App. 167

ARKANSAS COURT OF APPEALS DIVISION III No. CV-15-764

ALBERT LEROY COOTS Opinion Delivered: March 9, 2016 CAROLYN SUE COOTS APPELLANTS APPEAL FROM THE BENTON COUNTY CIRCUIT COURT V. [NO.CV-14-1527-5]

ALEJANDRO BANDERA HONORABLE XOLLIE DUNCAN, SUSAN BANDERA JUDGE APPELLEES REMANDED FOR SUPPLEMENTATION OF THE RECORD AND FOR SUPPLEMENTATION OF THE ADDENDUM

WAYMOND M. BROWN, Judge

Appellants appeal from the circuit court’s grant of appellees’ motion to dismiss their

complaint. On appeal, they argue that the circuit court erred in failing to retroactively apply

an amendment, effective July 1, 2014, to clarify Arkansas Rule of Civil Procedure 4(i). We

are unable to address the merits of appellants’ argument. We remand for supplementation

of the record and for supplementation of the addendum.

Appellants were involved in a motor-vehicle collision with a vehicle owned by

appellees, but driven by Marco Antonio Duran-Duran on August 22, 2009. Appellants filed

their complaint on August 21, 2012. Appellants filed a motion for extension of time to

complete service of the first complaint on December 11, 2012. The circuit court entered an

order granting the motion on December 12, 2012, extending the time to perfect service

until March 30, 2013. Appellants filed a second motion for extension of time. Cite as 2016 Ark. App. 167

Both the record and the addendum contain the circuit court’s April 23, 2013 order

granting appellants’ second motion for extension of time to complete service, in which it

granted an extension from March 30, 2013, to June 30, 2013. Both the record and the

addendum contain the appellants’ second motion for extension of time. However, neither

the record copy of the second motion for extension of time, nor the addendum copy, is

file-marked. 1 Accordingly, neither the addendum nor the record provide documentary

proof of the date when appellants filed their second motion for extension of time.

Arkansas Supreme Court Rule 3-3 states that pleadings subsequent to the complaint

and answer should appear in the record in chronological order. 2 Arkansas Supreme Court

Rule 4-2(a)(8) states that the addendum shall include any pleading or document that is

essential for the appellate court to confirm its jurisdiction, to understand the case, and to

decide the issues on appeal. 3 It also states that each document in the addendum “must be a

complete and legible copy of the original, clearly showing any file mark.” 4

1 We further note that, while it would not in itself make the motion an official copy, there is a handwritten note on the copies stating that the motion was “fax filed[;]” however no date was provided. 2 Ark. Sup. Ct. R. 3-3(6) (2015). 3 Ark. Sup. Ct. R. 4-2(a)(8)(A)(i) (2015). 4 Ark. Sup. Ct. R. 4-2(a)(8)(B). See Spears v. Spears, 2012 Ark. App. 181, at 3; City of Centerton v. City of Bentonville, 289 S.W.3d 474 (Ark. 2008) (per curiam granting petition for rehearing) (“[w]e also ask counsel to assure that documents have legible file marks. They should take particular care in assuring that all records and addenda contain copies of documents with legible file marks.”)

2 Cite as 2016 Ark. App. 167

The date of the second motion for extension of time is essential to the understanding

of the appellants’ sole point on appeal that the circuit court erred in failing to retroactively

apply an amendment to Arkansas Rule of Civil Procedure 4(i). When a document has been

received by the clerk, file-marking is not inexorable proof of the exact time of filing, but is

the only evidence of the time of filing. 5 We find both the record and the addendum to be

deficient so that we cannot reach the merits of the case. Accordingly, we remand for

supplementation of the record, correcting the above-referenced deficiencies within thirty

days. Additionally, we order appellant to submit a supplemental addendum correcting the

above-referenced deficiencies within fifteen days from the date on which the supplemental

record is filed. We encourage appellant’s counsel to review Rule 4-2 of the Rules of the

Arkansas Supreme Court and Court of Appeals to ensure that the supplemental record and

supplemental addendum comply with the rules and that no additional deficiencies are

present.

Remanded for supplementation of the record and for supplementation of the

addendum.

VAUGHT and HOOFMAN, JJ., agree.

The Nixon Law Firm, by: Theresa L. Pockrus, for appellant.

Wilkinson Law Firm, by: Randall Wakefield, for appellee.

5 Jewell v. Fletcher, 2012 Ark. 132 (citing Ark. Game & Fish Comm’n v. Eddings, 2009 Ark. 359, at 13, 324 S.W.3d 328, 335).