The Woodlands Nursing & Retirement Center, Inc. v. Dequeen Therapy & Living Center, Inc.

2021 Ark. App. 70

• Court: Court of Appeals of Arkansas
• Decided: February 17, 2021
• Status: Published

Opinion

Cite as 2021 Ark. App. 70 Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and DIVISION IV integrity of this document No. CV-20-321 2023.06.22 13:24:31 -05'00' 2023.001.20174 Opinion Delivered February 17, 2021 THE WOODLANDS NURSING & RETIREMENT CENTER, INC. APPELLANT APPEAL FROM THE GARLAND CIRCUIT COURT V. [NO. 26CV-17-487]

DEQUEEN THERAPY & LIVING CENTER, INC.; KILGORE HONORABLE LYNN CONSULTING, INC., FORMERLY WILLIAMS KNOWN AS VICTORIA HEALTH CARE, INC.; AND JOSH KILGORE REBRIEFING ORDERED APPELLEES

BRANDON J. HARRISON, Chief Judge

The Woodlands Nursing & Retirement Center, Inc., appeals the Garland County

Circuit Court’s dismissal of its complaint with prejudice and the deemed denial of its

posttrial motions. We do not reach the merit of the corporation’s appellate arguments

because its brief does not comply with the rules governing appeals that do not involve an

electronic record.1 We therefore order the appeal to be re-briefed.

Some examples of the deficiencies. In its abstract, Woodlands should have condensed

the testimony contained in the February 2020 hearing and any other material testimony

1 Our supreme court has changed the briefing rules for appeals involving an electronic record. See In re Acceptance of Records on Appeal in Electronic Format and Elimination of the Abstracting and Addendum Requirements, 2019 Ark. 213 (per curiam) (6 June 2019); In re Acceptance of Records on Appeal in Electronic Format and Elimination of the Abstracting and Addendum Requirements, 2020 Ark. 421 (per curiam) (17 December 2020). The citations to the rules in this opinion apply to cases in which a notice of appeal was filed before 1 June 2021 and that were otherwise not filed using the electronic-record pilot program. included in the record. Ark. Sup. Ct. R. 4-2(a)(5)(A)–(B) (2020). It did not do so. The

February 2020 hearing transcript spans twenty-eight pages, yet Woodlands’s abstract is

merely five sentences. And instead of stating what happened during the hearing in an

impartial first-person narrative, Woodlands summarized certain arguments that the parties

made to the circuit court.

Woodlands’s addendum is also defective. Although the appellees submitted a

supplemental addendum that contained a transcript of the February 2020 hearing and a

transcript of Josh Kilgore’s deposition testimony, transcripts do not comply with the abstracting

rule. Testimony, no matter which party presents it and regardless of whether it comes from

a trial, hearing, or deposition, must be converted into an impartial first-person narrative in

the abstract. Lackey v. Mays, 100 Ark. App. 386, 389, 269 S.W.3d 397, 399 (2007); Ark.

Sup.Ct. R. 4-2(a)(5)(A) & 4-2(a)(8)(A)(i).

There is another point of note. This case was decided on the appellees’ collective

motion to dismiss or, in the alternative, a motion for summary judgment. Nine exhibits

were attached to the motion that ended the case; but Woodlands did not include all of the

exhibits in the addendum. Additionally, Woodlands filed four complaints in this case; but

the addendum includes an answer to only one of the four complaints. Arkansas Supreme

Court Rule 4-2(a)(8)(A)(i) requires an appellant to, among other things, include the answers

or amended answers that were filed in the case, all exhibits concerning the order or ruling

challenged, and any exhibit or other document in the record that is essential to understand

and decide the appeal. In other words: if it is important to the case to include four

2 complaints, then it is likewise important to include the defending party’s corresponding

answers to the complaints.

Our list of deficiencies is not an exhaustive one, so we encourage Woodlands to

review the rules and ensure that no other deficiencies exist. Woodlands has fifteen days

from this opinion’s date to file a substituted abstract, addendum, and brief that complies

with the rules. Ark. Sup. Ct. R. 4-2(b)(3). The appellees may then file a substituted brief

should they choose to do so. Id.

Rebriefing ordered.

WHITEAKER and MURPHY, JJ., agree.

Tim Dudley, for appellant.

Smith, Cohen & Horan, PLC, by: Matthew T. Horan and Stephen C. Smith, for

appellees.