Padgett v. Padgett

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.
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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.
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