Howard v. C & L Used Car Lot , 2014 Ark. App. 109 ( 2014 )

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.
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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.
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