McPeek v. White River Lodge Enterprises

Robert L. Brown, Justice, concurring in part; dissenting in part. I agree with part of the majority opinion but take issue with one significant point. After White River Lodge Enterprises argued in its appellee’s brief that the McPeeks’ original brief was defective due to failure to abstract a certain trial court ruling on statutory fees and a statement of fees and costs, McPeek moved for permission to substitute an abstract to correct those deficiencies. The motion to substitute was filed on the date the McPeeks’ reply brief was due, which was February 20, 1996. On that same date, McPeek tendered a substituted original abstract and brief to rectify the deficiencies pursuant to Ark. Sup. Ct. R. 4-2(b)(2). This, of course, all occurred long before the case was submitted for this court’s consideration. The motion to substitute was denied.

Now, a majority of the court refuses to consider the McPeeks’ argument on appeal for failure to abstract a court ruling on statutory fees and a statement of fees and costs pursuant to Supreme Court Rule 4-2 (b). This is so even though the McPeeks sought permission to correct their abstract deficiency well in advance of the submission of the case.

This court routinely grants motions to supplement abstracts before the case is submitted with any costs necessitated by the opposing party’s rebriefing to be assessed against the moving party. See, e.g., Dixon Ticonderoga Co. v. Winburn Tile Manuf. Co., 322 Ark. 817 , 911 S.W.2d 955 (1995) (per curiam). We do so under the authority of Ark. Sup. Ct. R. 4-2 (b)(2), which reads:

(2) Whether or not the appellee has called attention to deficiencies in the appellant’s abstract, the Court may treat the question when the case is submitted on its merits. If the Court finds the abstract to be flagrantly deficient, or to cause an unreasonable or unjust delay in the disposition of the appeal, the judgment or decree may be affirmed for noncompliance with the Rule. If the Court considers that action to be unduly harsh, the appellant’s attorney may be allowed time to revise the brief, at his or her own expense, to conform to Rule 4-2(a)(6). 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 supplement the brief, at the expense of the appellant or the appellant’s counsel, as the Court may direct. (Emphasis added.)

Hence, our rule allows us to accept substituted abstracts even after the matter has been submitted for decision. We have typically declined to do that, but where the requested abstract substitution occurred before submission, we generally grant the request.

I would correct the error in refusing to allow an abstract substitution in this case and reach the merits of White River Lodge Enterprises’ motion to dismiss and the McPeeks’ request for additional fees. For that reason, I respectfully dissent.