Farmers Union Mutual Ins. Co. v. Robertson

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Cite as 2009 Ark. 435 SUPREME COURT OF ARKANSAS No. 09-619 FARMERS UNION MUTUAL INSURANCE COMPANY, INC., APPELLANT, VS. RANDALL AND HEATHER ROBERTSON, HUSBAND AND WIFE, BOTH INDIVIDUALLY AND ON BEHALF OF A CLASS OF ALL ARKANSANS SIMILARLY SITUATED, APPELLEES, Opinion Delivered September 24, 2009 MOTION TO CORRECT THE RECORD, MOTION TO TAKE JUDICIAL NOTICE, AND MOTION FOR ADDITIONAL TIME TO FILE APPELLANTS BRIEF. MOTION TO CORRECT THE RECORD AND MOTION FOR ADDITIONAL TIME TO FILE APPELLANTS BRIEF, GRANTED. MOTION TO TAKE JUDICIAL NOTICE, DENIED. PER CURIAM Farmers Union Mutual Insurance Company, Inc., moves this court for an order under Arkansas Rules of Appellate Procedure–Civil 6(e) to correct the record by supplementing it with Farmer’s pleading entitled “Proposed Decision.” The circuit court requested that each party file a “Proposed Decision” outlining the decision that each party believed the circuit court should make. Both parties did so, as the circuit court acknowledged in a letter informing the parties of the decision in the case and stating that each party’s “Proposed Decision” had been carefully reviewed. Because Farmers’s “Proposed Decision” contained, by error or accident, an incorrect case number, the “Proposed Decision” was not filed in and made part of the record in this case. Because the “Proposed Decision” was considered by the Cite as 2009 Ark. 435 circuit court in reaching its decision, and to assure that the record truly discloses what occurred in the circuit court, we grant Farmers’s motion and order that the record be supplemented with Farmers’ “Proposed Decision.” Farmers also asks this court to take judicial notice on appeal of various pleadings filed in a related case. Under appellate jurisdiction, this court reviews a decision of a lower court. Smith v. State, 363 Ark. 456, 457, 215 S.W.3d 626, 627 (2005). The pleadings Farmers asks us to consider were not considered by the circuit court in making the decision that is before us on appeal. How those pleadings might have affected the circuit court’s decision is unknown. We do not decide an issue for the first time on appeal. Id. Appellate jurisdiction does not permit this court to retry cases or make findings of fact. Looper v. Madison Guar. Sav. & Loan Ass’n, 292 Ark. 225, 227-28, 729 S.W.2d 156, 157 (1987). The motion to take judicial notice is denied. Farmers also moves this court for an additional thirty days within which to complete and file the appellant’s brief after these matters are decided. An additional fourteen days is granted. -2- 09-619

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