Office Machines, Inc. v. Bruce Mitchell

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

OFFICE MACHINES, INC.

APPELLANT

V.

BRUCE MITCHELL

APPELLEE

CA05-323

December 14, 2005

APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT

[NO. CV-03-553-2]

HON. JOHN B. PLEGGE,

JUDGE

REBRIEFING ORDERED

John Mauzy Pittman, Chief Judge

This is an appeal from an order of summary judgment. The order was largely based on depositions. Although not raised by either party, we do not reach the merits of this case because of a failure to comply with our abstracting requirements. See Ark. Sup. Ct. R. 4-2(a)(5) (2005). We raise issues of deficiencies sua sponte. Kyzar v. City of West Memphis, ___ Ark. ___, ___ S.W.3d ___ (November 4, 2004).

Arkansas Supreme Court Rule 4-2(a)(5) requires a first-person condensation of the testimony rather than a repetition of the attorneys' questions and the witnesses' answers. See Coffelt v. Arkansas State Highway Commission, 289 Ark. 348, 712 S.W.2d 283 (1986); Travelers Insurance Co. v. Martin, 264 Ark. 266, 571 S.W.2d 416 (1978) (decisions under prior rule). Rule 4-2(a)(5) expressly requires that depositions be abstracted in a similar fashion. Appellant's abstract is deficient because the depositions presented in support of the motion have simply been reproduced verbatim in question-and-answer format.

Appellant has thirty days from the date of this opinion to file a substituted abstract, brief, and addendum to conform to Rule 4-2(a)(5). If appellant fails to file a complying abstract, brief, and addendum within the prescribed time, the judgment may be affirmed for noncompliance with our rules. Kyzar v. City of West Memphis, supra. After service of the substituted brief on the appellee, he shall have an opportunity to file a responsive brief in the time prescribed by the clerk of this court, or to rely upon the appellee's brief that was previously filed in this appeal. See Ark. Sup. Ct. R. 4-2(b)(3).

Rebriefing ordered.

Hart and Gladwin, JJ., agree.