Duncan v. Olive

Cite as 2013 Ark. App. 680
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-13-77
Opinion Delivered November 13, 2013
CHERLE MARIE DUNCAN and APPEAL FROM THE GARLAND
LLOYD LEO DUNCAN COUNTY CIRCUIT COURT,
APPELLANTS [NO. CV-06-1443-2]
V. HONORABLE VICKI SHAW COOK,
JUDGE
DR. ROBERT OLIVE
APPELLEE
REMANDED FOR
SUPPLEMENTATION OF THE
RECORD; SUPPLEMENTATION OF
THE ADDENDUM ORDERED
WAYMOND M. BROWN, Judge
Appellants appeal the circuit court’s grant of appellee’s motion for summary judgment.
On appeal, appellants argue that (1) appellants’ requests for admissions should not have been
deemed admitted, and (2) summary judgment was improper because even if the requests for
admission were properly deemed admitted, the court should have allowed the admissions to
be withdrawn. We are unable to reach the merits of these arguments. Because appellants failed
to include a pertinent order in the record in violation of Arkansas Rule of Appellate
Procedure–Civil 6(e) and have submitted a brief without a proper addendum in violation of
Cite as 2013 Ark. App. 680
Ark. Sup. Ct. R. 4-2(a)(8)(A)(i), 1 we order appellants to submit a supplemental record and
supplemental addendum.
On November 29, 2006, appellants filed a medical-malpractice complaint against
appellee, Orthopedic Associates of Hot Springs, Darlene Abernathy, and two Jane Does. The
named defendants timely filed their joint answer on December 14, 2006, contending that the
complaint was without merit.
Appellants filed a motion to nonsuit their claims against Orthopedic Associates of Hot
Springs and Darlene Abernathy, without prejudice, on August 29, 2012. Appellee stated the
same in his motion for summary judgment, filed August 31, 2012. A formal order granting
the summary judgment was entered on October 19, 2012.2 Though appellants’ draft order of
dismissal for the aforementioned parties was included in the record, appellants failed to include
the circuit court’s signed order granting their motion to nonsuit in the record.3
Arkansas Rule of Appellate Procedure–Civil 6(e) states that if anything material to
either party is omitted from the record, the appellate court, on its own initiative, may direct
that the omission shall be corrected and that a supplemental record be certified and
1
(2012).
2
Arkansas Rule of Civil Procedure 54(b)(5) states that “[a]ny claim against a named but
unserved defendant, including a “John Doe” defendant, is dismissed by the circuit court’s final
judgment or decree.” Because Jane Doe 1 and 2 remained unknown at the time of entry of
the court’s order granting appellee’s motion for summary judgment, Jane Doe 1 and 2 were
effectively dismissed by the court’s order. The circuit court had previously issued a letter
opinion detailing the same contents of the order, on October 9, 2012.
3
Neither the motion, nor the draft, was included as separate documents, but they were
included in the record as exhibit attachments to appellee’s motion for summary judgment.
2
Cite as 2013 Ark. App. 680
transmitted.4 The circuit court’s order granting appellants’ motion to nonsuit and dismissing
Orthopedic Associates of Hot Springs and Darlene Abernathy as parties is material to this
court’s ability to verify its jurisdiction as it is essential to determining the finality of the circuit
court’s October 19, 2012 order. Therefore, we remand for supplementation of the record,
correcting the above-referenced deficiencies within thirty days from the date of this order.
Because the circuit court’s order of dismissal was not included in the record, it also was
not included in the addendum. Arkansas Supreme Court Rule 4–2(a)(8) requires appellants
to submit an addendum containing “any order adjudicating any claim against any party with
or without prejudice.”5 Accordingly, we order appellants to submit a supplemental addendum
correcting the above-referenced deficiencies within fifteen days from the date on which the
supplemental record is filed. We encourage appellants to review Rule 4–2 of the Rules of the
Arkansas Supreme Court and Court of Appeals to ensure that the supplemental addendum
complies with the rules and that no additional deficiencies are present. After service of the
supplemental record and addendum, appellee shall have an opportunity to revise or
supplement his brief in the time prescribed by the clerk, or to rely on the brief that he
previously filed in this appeal.
Remanded for supplementation of the record; supplementation of the addendum
ordered.
WALMSLEY and HIXSON, JJ., agree.
Michael R. Lipscomb, for appellants.
Malcom Law Firm, by: J. Phillip Malcom and Glenn Ritter, for appellee.
4
(2012).
5
(2012).
3