In re Estate of Frazier , 2016 Ark. 89 ( 2016 )

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SUPREME COURT OF ARKANSAS
No. CV-16-112
Opinion Delivered March 3, 2016
IN THE MATTER OF THE ESTATE
OF ESSIE MAE FRAZIER
MOTION FOR RULE ON
ODELL FRAZIER AND CLERK
GERTRUDE BARBER
CO-ADMINISTRATORS
APPELLANTS
V.
MARY MILLER
FORMER ADMINISTRATOR
APPELLEE
REMANDED.
PER CURIAM
Appellants, Odell Frazier and Gertrude Barber as Co-Administrators of the Estate of
Essie Mae Frazier, by and through their attorney, Edward H. Schieffler, have filed a motion
for rule on clerk, to file the record and have their 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).
The clerk was correct in refusing to accept the record due to lack of compliance with
Arkansas Rule of Appellate Procedure–Civil 5(b)(1).
Rule 5(b)(1) provides as follows:
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(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 make 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;
(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 granted an extension; however, the order did not have
the required findings relating to subsection (b)(1). 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
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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. Because the extension order in this case did
not contain all of the findings required by the rule, and because there must be strict
compliance with the rule, we remand the matter regarding the order to the circuit court for
compliance with Rule 5(b)(1).
Remanded.
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