Padgett v. Padgett , 2015 Ark. 262 ( 2015 )


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  •                                    Cite as 
    2015 Ark. 262
    SUPREME COURT OF ARKANSAS
    No.   CV-15-426
    DAVID LEE PADGETT, AN                             Opinion Delivered   June 4, 2015
    INCAPACITATED PERSON, BY
    FLOYCE TAYLOR, THE GUARDIAN                       MOTION FOR RULE ON CLERK
    OF HIS PERSON
    APPELLANT
    V.
    BETTYE R. PADGETT
    APPELLEE         REMANDED.
    PER CURIAM
    Appellant, David Lee Padgett, an incapacitated person, by Floyce Taylor, the guardian
    of his person, by and her through his attorney, Jonathan D. Jones, has filed a motion for rule
    on clerk, to file the record and have his appeal docketed. The clerk refused to docket the
    appeal because the circuit court’s order granting an extension of time to lodge the record on
    appeal did not contain the requisite language of Arkansas Rule of Appellate Procedure–Civil
    5(b)(1) (2014).
    Rule 5(b)(1) provides as follows:
    (b) Extension of time.
    (1) If any party has designated stenographically reported material for inclusion
    in the record on appeal, the circuit court, by order entered before expiration of the
    period prescribed by subdivision (a) of this rule or a prior extension order, may extend
    the time for filing the record only if it makes the following findings:
    (A) The appellant has filed a motion explaining the reasons for the requested
    extension and served the motion on all counsel of record;
    Cite as 
    2015 Ark. 262
    (B) The time to file the record on appeal has not yet expired;
    (C) All parties have had the opportunity to be heard on the motion, either at
    a hearing or by responding in writing;
    (D) The appellant, in compliance with Rule 6(b), has timely ordered the
    stenographically reported material from the court reporter and made any financial
    arrangements required for its preparation; and
    (E) An extension of time is necessary for the court reporter to include the
    stenographically reported material in the record on appeal or for the circuit clerk to
    compile the record.
    In this case, the circuit court’s order lacks any finding relating to subsection (b)(1)(C)
    that the parties have had the opportunity to be heard on the motion, either at a hearing or by
    responding in writing. This court has made it clear that there must be strict compliance with
    Rule 5(b) and that we do not view the granting of an extension as a mere formality. See
    Looney v. Bank of W. Memphis, 
    368 Ark. 639
    , 
    249 S.W.3d 126
    (2007) (per curiam). When an
    order fails to comply with Rule 5(b), we may remand the matter to the circuit court for
    compliance with the rule. See Charles R. Griffith Farms, Inc. v. Grauman, 
    373 Ark. 410
    , 
    284 S.W.3d 68
    (2008) (per curiam).
    Upon a remand for compliance with Rule 5(b)(1), the circuit court shall determine
    whether the rule was complied with at the time the original motion for extension of time was
    filed and granted. See Wyre v. Wyre, 
    2009 Ark. 245
    , 
    307 S.W.3d 30
    (per curiam). The circuit
    court should not permit the parties the opportunity to correct any deficiencies, but instead
    should make the findings required by the Rule as if they were being made at the time of the
    original motion. See 
    id. Should the
    requirements not have been met at the time of the initial
    motion for extension and order, the circuit court’s order upon remand should so reflect and
    be returned to this court. See 
    id. 2 Cite
    as 
    2015 Ark. 262
    Because the order in this case does not contain all of the findings required by the Rule,
    and because there must be strict compliance with the Rule, we remand the matter to the
    circuit court for compliance with Rule 5(b)(1).
    Remanded.
    3
    

Document Info

Docket Number: CV-15-426

Citation Numbers: 2015 Ark. 262

Judges: Per Curiam

Filed Date: 6/4/2015

Precedential Status: Precedential

Modified Date: 6/4/2015