The opinion
DONALD L. CORBIN, Justice, concurring.
1 sWhile I agree that the instant case must be sent back for rebriefing, I must write separately to voice my concern about the problems arising from the increased number of appeals with deficiency problems. The dissent is correct that sending cases back causes added delay and expense to the appellants. It also causes a backlog in our appellate system. I do not enjoy sending cases back. I would much rather decide the merits of an appeal when it is first presented to this court. Nevertheless, we cannot simply ignore our rules that require an appellant to present an abstract of the “material parts of the testimony of the witnesses” and an addendum that contains “relevant pleadings, documents, or exhibits.” See Ark. Sup.Ct. R. 4-2(a)(5), (8). I reiterate the position expressed in my concurring opinion in Bryan v. City of Cotter, 2009 Ark. 172 , 303 S.W.3d 64 (per curiam), that it is not sufficient to have the essence of what was before the trial court. I will not “glean” critical testimony from other parts of the brief. Again, in order to make an informed decision about an appeal, I need the benefit of the exact things the trial court relied on in making its decision.
In this case, the dissent would have the majority rely on just the corroborating testimony of a witness in reviewing the issue of whether the appellee satisfied the residency requirement set forth in Ark. Code Ann. § 9-12-307 (a)(l)(A) (Repl. 2008). To do so would require this court to assume that such testimony did in fact corroborate the testimony of appellee. My job as an appellate jurist is not to speculate, glean, or assume matters that Rare the crux of an appeal before this court.
I realize that our rebriefing order may cause confusion where the court of appeals decided this case on its merits. That decision relies on the appellee’s testimony that is in the record but not abstracted. Although the opinion is silent on this point, it appears that the court of appeals utilized the appellate rule that allows us to go to the record to affirm a lower court decision. I mention this because a review of case law from both courts reveals a disturbing trend: using the rule that we can go to the record to affirm where we are presented with a flagrantly deficient abstract or addendum. I have been an appellate court judge for twenty-eight years, and my earliest recollection of this rule is that we used it on occasion to cite further evidence not found in the abstract or addendum or in situations where we affirmed the lower court as reaching the right result but for the wrong reason. See Brown v. State, 374 Ark. 341 , 288 S.W.3d 226 (2008) (stating that we relied on an affidavit in the record but not included in the addendum where the substance of the affidavit was available elsewhere in the abstract and appendix); Hanlin v. State, 356 Ark. 516 , 157 S.W.3d 181 (2004) (explaining that this court will occasionally go to the record to affirm for a different reason when that alternative reason was raised and developed at the circuit court level).
While I admit that this court, myself included, has gone to the record when presented with flagrant deficiencies, I believe that we must now be clear that going to the record to affirm a case is acceptable only in limited circumstances. If we utilize this rule in a case 17where the evidence that is determinative to our decision is not abstracted or included in the addendum, then we must prejudge the case and know that we are going to affirm the circuit court in order to rely on evidence solely found in the record. Perhaps this practice was more acceptable under our old appellate rules where we summarily affirmed cases because of flagrant deficiencies. Now, however, our rules allow the appellant to cure such deficiencies so that this court can make an informed decision on the merits. It is up to us to fairly and consistently apply those rules.
In fact, I believe the inconsistency of our appellate courts has contributed greatly to the current dilemma we face. I do not believe the problem stems from confusion over our rules. If it were simply a matter of the rules being confusing, we would have had more problems back in 2001 when the current rule was adopted, not eight years later. I believe the real problem is the fact that attorneys are being held to two different standards. This court expects the work product submitted to us to be in compliance with our rules. The court of appeals, however, is less stringent in enforcing those same rules. I remember sitting on panels when I was on the court of appeals, and I know it is much easier to share the record when only three judges need to review it. I also understand that with the number of cases they decide each year, the court of appeals does not want to congest its docket by sending cases back for rebriefing. Notwithstanding the differences in how our two courts operate, we must work together to consistently apply our appellate rules. In light of the fact |sthat we are called upon to review court of appeals decisions, such as in the present case, or to decide cases that are certified to us, attorneys need to know that the briefs they submit are acceptable to both the court of appeals and this court. Such consistency is the only way to resolve this problem.
For the aforementioned reasons, I concur.
IMBER, J., joins in this concurrence.