Daffin v. Seymore

Per Curiam.

Appellees move to dismiss this cause based upon appellant’s failure to comply with Rule 3(e) of the Rules of Appellate Procedure which provides:

A notice of appeal or cross-appeal shall specify the party or parties taking the appeal; shall designate the judgment, decree, order or part thereof appealed from and shall designate the contents of the record on appeal. The notice shall also contain a statement that the transcript, or specific portions thereof, have been ordered by the appellant.

Appellant’s notice of appeal reflects that she appealed the trial court’s decision rendering a default judgment against her and stated thereon “a copy of the record is being requested from the Court Reporter.” Appellees attached to their motion an affidavit of the court reporter reflecting, that the appellant’s attorney never requested a transcript of the proceedings in this cause. Citing Alexander v. Beaumont, 275 Ark. 357, 629 S.W.2d 300 (1982), appellees assert the appellant's failure to designate the contents of the record or to notify the court reporter to transcribe the record is grounds for dismissal of this appeal.

Appellant does not deny that the record was never requested from the court reporter. She did, however, obtain from the circuit clerk certified copies of the pleadings, including the default judgment, entered in this cause. She filed these as the transcript in this appeal; thus, all we have before us is an abbreviated record.

In Wise v. Barron, 280 Ark. 202, 655 S.W.2d 446 (1983), the Supreme Court refused to dismiss an appeal when the appellant failed to state that the transcript had not been ordered when in fact it had been. The Court found the purpose of Rule 3(e) had not been frustrated, and the appellee had not been prejudiced because no extension of time was needed and the record was filed timely with the Supreme Court clerk. The instant case reflects almost the reverse situation to that in Wise. The appellant stated in her notice that she was requesting the record from the court reporter when in fact she had not. Instead, she ordered only the pleadings from the circuit clerk’s office; however, in ordering this partial transcript she failed to designate she had. ordered these specific portions of the proceeding as is required under Rule 3(e). If appellant had intended to designate a partial record and had properly done so, she would have been required to serve with her notice of appeal and designation a concise statement of the points on which she intended to rely in this appeal. See Rule 3(g) of the Rules of Appellate Procedure. Appellant never filed a statement of points. Because appellant failed to order and file a complete record, appellees were compelled to order the full transcript from the court reporter and as alternative relief, they request that the record on appeal be supplemented if their motion to dismiss is not granted.

Appellant’s failure to comply with Rule 3(e) has clearly caused a delay in this appeal. In addition, because the issues raised by appellant cannot be addressed properly by this court without the complete record, appellees were forced to order (as well as underwrite the costs of) the transcription of the lower court’s proceedings. In one point, appellant argues that the award given appellees was excessive and not supported by the record. Obviously, to decide the issue, we need the trial court’s evidentiary proceedings. In a second point, she claims the trial court should'have allowed her to file a late answer. However, the trial court’s judgment reflects appellant’s motion to file a belated answer was denied at a pre-trial hearing held on February 6,1984, when, at the same time, appellees were granted a default judgment subject to their proving damages. The court set the hearing on damages for May 31,1984. As is true with appellant’s first point, the transcripts of the February 6 and May 31 hearings are necessary to properly consider appellant’s second point as well..

In summary, appellant’s failure to correctly designate in her notice the contents or the portions of the record upon which she intended to rely contravenes Rules 3(e) and 3(g). In failing to do so, appellant caused a delay in this, appeal and also shifted her burden to appellees to order and pay for the transcript so it could be lodged here. Accordingly, we grant appellees’ renewal motion to dismiss based on Rule 3(e).

Appeal dismissed.

Cooper and Mayfield, JJ., dissent.