Howard v. C & L Used Car Lot

2014 Ark. App. 109

• Court: Court of Appeals of Arkansas
• Decided: February 12, 2014
• Docket: CV-13-746
• Status: Published

Opinion

Cite as 2014 Ark. App. 109

ARKANSAS COURT OF APPEALS DIVISION III No. CV-13-746

Opinion Delivered February 12, 2014

RISIE RENE HOWARD ET AL. APPEAL FROM THE JEFFERSON APPELLANTS COUNTY CIRCUIT COURT [No. CV-2013-90-2] V. HONORABLE ROBERT H. WYATT, C & L USED CAR LOT and CITY OF JR., JUDGE PINE BLUFF APPELLEES REBRIEFING ORDERED

LARRY D. VAUGHT, Judge

In this one-brief appeal, appellant Risie Howard et al. (joined by other Pine Bluff,

Arkansas residents), objected to the construction of offices for a used-car business to be located

near her residential neighborhood and now appeals the order of the Jefferson County Circuit

Court dismissing (with prejudice) her request for a permanent injunction against the car lot and

the City of Pine Bluff. Specifically, Howard claims that the injunction should be granted

because the office construction violates city zoning and ordinance requirements. Alternatively,

she claims that the impacted residential homeowners are entitled to consideration based on the

change in the character of the neighborhood. However, we cannot reach the merits of Howard’s

argument because her brief does not comply with Ark. Sup. Ct. R. 4-2 (2013). Therefore, we

order rebriefing. Cite as 2014 Ark. App. 109

Pursuant to Ark. Sup. Ct. R. 4-2(b)(3), which was modified by In re Modification of the

Abstracting System, 345 Ark. App’x 626 (2001), the court must now allow rebriefing before

summarily affirming. The applicable version of Ark. Sup. Ct. R. 4-2(b)(3) provides:

(3) Whether or not the appellee has called attention to deficiencies in the appellant’s abstract or addendum, the court may address the question at any time. If the court finds the abstract or addendum to be deficient such that the court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, addendum, and brief, at his or her own expense, to conform to Rule 4-2(a)(5) and (8). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or to supplement the brief, at the expense of the appellant or the appellant’s counsel, as the court may direct. If after the opportunity to cure the deficiencies, the appellant fails to file a complying abstract, addendum and brief within the prescribed time, the judgment or decree may be affirmed for noncompliance with the rule.

We find Howard’s abstract and addendum to be deficient such that we cannot reach the merits

of the case. Specifically, she has failed to reference essential proceedings and testimony in the

abstract or addendum of the brief she filed with our court. For example, Howard failed to

abstract three pages of the court’s questioning of witness Laura Rose, whose testimony in the

abstract stops after her direct examination upon recall. In the missing testimony, the court

asked Rose about the streets that border the property and about the parking lot and activity at

Yancey Furniture, another retail establishment in the area. Also, the court’s ruling from the

bench is not abstracted in sufficient detail. In the abstract it appears that the court made no

finding to support its conclusion, but the oral order was much more detailed than has been

abstracted. Further, and perhaps most troubling, information relating to the dismissal of the City

of Pine Bluff from the lawsuit is not included in either the abstract or the addendum.

2 Cite as 2014 Ark. App. 109

Therefore, Howard has fifteen days from the date of this opinion to file a substituted

abstract, addendum, and brief to conform to Rule 4-2(a)(5) and (8). Ark. Sup. Ct. R. 4-2(b)(3);

In re Modification of the Abstracting Sys., 345 Ark. App’x 626. Mere modifications of the original

brief will not be accepted. Id. If Howard fails to file a complying abstract, addendum, and brief

within the prescribed time, the judgment may be affirmed for noncompliance with the rule.

Rebriefing ordered.

GRUBER and WHITEAKER, JJ., agree.

George Howard, Jr. Legal Center, by: Risie Howard, pro se appellant.

No response.