King v. King

Kathryn Lynn KING v. Carl KING

96-237                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered March 18, 1996


     Motion for Rule on the Clerk; denied.
     Paul L. Dickerson, for appellant.
     No response.

     Robert L. Brown, Justice, dissenting.Associate Justice Robert L. Brown
March 18, 1996   *ADVREP11*






KATHRYN LYNN KING,
                    APPELLANT,

V.

CARL KING,
                     APPELLEE,

96-237




MOTION FOR RULE ON THE CLERK






DISSENTING OPINION.






     Counsel for Kathryn Lynn King filed a motion for rule on the
clerk to allow him to lodge the record in this case.  According to
the motion, counsel who practices law in Texarkana obtained an
order of extension from Judge John Lineberger, who is a chancellor
for the Fourth Judicial District in Fayetteville, prior to the
expiration of the time for filing.  That order was then received by
the Polk County Circuit Clerk in the Eighteenth Judicial District
via facsimile transmission before time expired.  The motion further
states that the attorney's office telephoned the clerk's office to
verify that the order had been timely filed, and the circuit
clerk's office gave assurances that it had.  In truth, the order
granting the extension was not filed until one day after the
expiration of the deadline.  The majority would deny this motion. 
I would remand for an evidentiary hearing, and for that reason I
dissent.
     The general rule is that an attorney is responsible for filing
the record, not the trial judge, the court reporter, or the circuit
clerk.  Norman v. State, 323 Ark. 444,     S.W.2d     (1996); Lewis
v. State, 295 Ark. 165, 747 S.W.2d 91 (1988).  Likewise, it is the
attorney's responsibility to ensure that the order granting an
extension of time to file the record is actually entered even
though it may have been signed by the trial court and sent to the
clerk prior to the expiration of the filing period.  See Willis v.
State, 323 Ark. 41, 912 S.W.2d 430 (1996) (facsimile received by
clerk but not actually entered before deadline expired was
untimely); Voyles v. Voyles, 311 Ark. 186, 842 S.W.2d 21 (1992);
Sullivan v. Wickliffe, 284 Ark. 33, 678 S.W.2d 771 (1984).  We
have, however, carved out an exception to the rule in instances
where actions by the court clerk somehow thwarted the attorney in
performing his duties.  I believe this is just such a case.
     In Brown v. State, 300 Ark. 201, 777 S.W.2d 585 (1989), an
order extending the time to file the record for appeal was entered,
but the record was received four days late.  Counsel for Brown
filed a motion for rule on the clerk.  The attorney alleged:
     [T]hat he was prevented from meeting his responsibility
     for filing a timely record in that the circuit clerk has
     been instructed by the circuit judges "to not turn over
     the transcripts in any criminal cases to defense
     attorneys appealing them, but to take care of mailing the
     transcripts themselves."
Brown v. State, 300 Ark. at 202, 777 S.W.2d  at 586.  We remanded
the case to the trial court because if the allegation was true and
the attorney was prevented from performing his duty, good cause
existed to grant the motion. 
     This is not to say that blind reliance on statements by the
circuit clerk will circumscribe the rule, for we have ruled to the
contrary.  See, e.g., Lewis v. State, supra. (holding attorney
responsible for an untimely filing, even though he relied on the
circuit clerk's oral and written representations about when the
time for filing the record began to run); Welder v. Mercer, 247
Ark. 999, 448 S.W.2d 952 (1970) (holding attorney responsible for
an untimely filing, where the filing fee was not paid even though
deputy clerk agreed to mail the transcript for the attorney). 
These cases show that reliance on the clerk by itself may not be
enough.  
     However, I believe that the attorney did what was reasonable
under these circumstances.  He realized that the record would not
be prepared in time, and he obtained an order of extension from the
trial judge, who presumably was in Fayetteville.  The order was
then timely received by the circuit clerk via facsimile
transmission.  In the motion, the attorney who is an officer of the
court represented to this court that his office made a follow-up
telephone call to the Polk County Circuit Clerk's office, and
personnel there assured him that the order had been signed, filed,
and granted.  This was not a situation where counsel could go down
to the courthouse to verify the filing because the filing was to
occur in another county.
     The attorney's actions were reasonable and satisfy the
procedure suggested by the court of appeals in Tracor/MBA v.
Artissue Flowers, 41 Ark. App. 186, 850 S.W.2d 30 (1993).  In
Tracor/MBA, the Court of Appeals stated that the document which was
transmitted by way of facsimile machine should be sent early enough
so that a follow-up telephone call could verify its receipt and
allow other action, if necessary, to perfect the filing.  According
to counsel for the appellant, the assurance from the circuit
clerk's office that the document had been filed misled him and
prevented him from fulfilling his obligations.  I would remand this
case to the trial court to determine whether counsel was indeed
misled, as was done in Brown v. State, supra.
     For these reasons, I respectfully dissent.
     Roaf, J., joins.