Hagar v. Shull

2016 Ark. App. 283

• Court: Court of Appeals of Arkansas
• Decided: May 25, 2016
• Docket: CV-15-380
• Status: Published

Opinion

Cite as 2016 Ark. App. 283

ARKANSAS COURT OF APPEALS

DIVISION III No.CV-15-380

DEREK SCOTT HAGAR, Successor Opinion Delivered: May 25, 2016 Administrator of the Estate of Darren Scott Hagar, Deceased, and on Behalf of APPEAL FROM THE CRITTENDEN the Wrongful-Death Beneficiaries of COUNTY CIRCUIT COURT Darren Scott Hagar [NO. CV-2010-721]

APPELLANT HONORABLE PAMELA HONEYCUTT, JUDGE V.

ROBERT T. SHULL, M.D. REBRIEFING ORDERED APPELLEE

BRANDON J. HARRISON, Judge

In this medical-malpractice/wrongful-death case, appellant Derek Scott Hagar seeks

reversal based on two evidentiary errors and one jury-instruction error. Before we can

address Hagar’s arguments, he must file a substituted brief.

There are two briefing errors. First, Hagar’s abstract should contain a “record page

reference” for each page of transcripted material. Ark. Sup. Ct. R. 4-2(a)(5)(B) (2015).

The trial proceedings in this case cover almost 2,000 pages of record, and sequential page

numbers are located at the bottom of each record page. But Hagar’s abstract references a

different set of page numbers—those at the top, right-hand corner of the reporter’s

transcript. The problem is the reporter’s transcript begins each day of this multi-day trial

with page one. We do not fault the court reporter for numbering the pages in this manner.

But Hagar should not have used these numbers as “record page references” in his abstract. Cite as 2016 Ark. App. 283

Because he did so, his abstract, for example, makes six references to page twenty-nine instead

of citing a distinct page number for each page of testimony. This impedes our ability to

“toggle” between the abstract and record as needed. Hagar’s substituted brief should use the

proper record page numbers—the sequential numbers at the bottom of each page—in his

abstract. His table of contents for his addendum should use the proper record page numbers

too. Ark. Sup. Ct. R. 4-2(a)(1).

The second reason for our rebriefing order is that Hagar’s abstract and addendum

include far more material than is necessary for our review of the limited issues on appeal.

Excessive abstracting is as much a violation of our rules as the omission of key materials.

Hruska v. Baxter Reg’l Med. Ctr., 2011 Ark. App. 422. Sometimes we forgive the excess

and simply caution the attorneys to follow our briefing guidelines in the future. See, e.g.,

McElroy v. Ark. Dep’t of Human Servs., 2014 Ark. App. 117, 432 S.W.3d 109; Frigon v.

Frigon, 81 Ark. App. 314, 101 S.W.3d 879 (2003). But when there is so much unnecessary

material that it interferes with our review of the case, it becomes a flagrant violation of our

rules, and we will order rebriefing. See Hruska, supra. This is one of those cases.

Hagar has included at least 850 pages of unnecessary material, including discovery

matters, summary-judgment pleadings involving a settling party, and motions in limine that

don’t affect the issues on appeal. He should excise these materials so that his brief contains

only those documents and transcripts that are essential for us to confirm our jurisdiction,

understand the case, and decide the issues on appeal. Ark. Sup. Ct. R. 4-2(a)(5) & (8).

We therefore grant Hagar fifteen days from the date of this order to file a substituted

abstract and addendum that corrects the above-mentioned problems. We note that the oral

2 Cite as 2016 Ark. App. 283

argument on this case was canceled to allow rebriefing. But after Hagar has filed his

substituted brief, he is free to reschedule oral argument with our clerk’s office.

Rebriefing ordered.

WHITEAKER and BROWN, JJ., agree.

Appellate Solutions, PLLC, d/b/a Riordan Law Firm, by: Deborah Truby Riordan; and Trammell Piazza Law Firm, PLLC, by: Melody H. Piazza and M. Chad Trammell, for appellant.

Wright, Lindsey & Jennings LLP, by: David P. Glover, Gary D. Marts, Jr., and Carson Tucker, for appellees.