Melvin L. Wiley et al. v. Carolyn J. Wiley

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE LARRY D. VAUGHT

DIVISION IV

MELVIN L. WILEY, et. al

APPELLANTS

V.

CAROLYN J. WILEY

APPELLEE

CA 00-617

February 21, 2001

APPEAL FROM THE CHANCERY COURT OF JOHNSON COUNTY, ARKANSAS

[E-99-191]

HON. RICHARD E. GARDNER, JR.

CHANCERY JUDGE

AFFIRMED

Appellant, Melvin Wiley, brings this appeal arguing that the trial court improperly imposed an equitable lien on the real property of his mother in the sum of $12,300 in favor of appellee, Carolyn Wiley. Because of flagrant deficiencies in the appellants' abstract, we are unable to adequately review the merits of the case on appeal and summarily affirm the lower court on all issues raised.

Appellee, Carolyn Wiley (now Brown), filed a complaint for divorce against appellant Wiley. The complaint was amended to include a separate claim against Mr. Wiley's mother, Jerlene Majorwitz, and step-father, Johnny Majorwitz. Brown asked for restitution as a result of improvements made to the real property owned by Jerlene Majorwitz and in which Johnny Majorwitz holds a curtesy interest.

In June 1993, Brown and Wiley began living together in a mobile home at 166 Rock Lane,

which was solely owned and insured by Brown. It burned, and on August 27, 1996, Brown received $19,958 for the mobile home, $11,059 for her personal property, and $1,750 for debris removal from her insurance company. After the mortgage was paid in full, Brown had approximately $20,000 remaining.

Wiley and Brown married on December 16, 1996. After the mobile home on Rock Lane burned, Wiley and Brown began to make improvements to a single-wide mobile home located on property owned by Jerlene Majorwitz. The improvements included: adding a living room, bedroom, and sewing room to the existing structure; insulating the entire structure; purchasing and installing electrical wiring; flooring throughout the home; a front porch; a septic tank system; an air conditioner; and a pump to deliver water to the home. Mrs. Majorwitz allegedly promised to convey the improved real property to the Wileys.

The chancellor determined that Brown was entitled to $12,300 for the improvements made to the Majorwitzes' property and granted Brown an equitable lien to ensure payment. The chancellor instructed the Majorwitzes to hold the real property as constructive trustees for Brown to the extent of Brown's $12,300 lien until such time as said lien was satisfied. The chancellor also ordered that if, within 60 days of the order, the lien were not paid, it would be foreclosed and the real property sold at public sale.

Appellants first ask this court to examine the propriety of an exhibit being admitted into evidence over their hearsay objection. However, we cannot determine from the abstract whether the appellants made a hearsay objection at trial, if the appellee responded to the hearsay objection, or how the judge ruled on the hearsay objection. Next, appellants argue that the trial court erred in its determination that appellee's improvements to their real property increased the value of the property by $12,300. Due to the failure to abstract necessary testimony and exhibits, we cannot determinewhat evidence of appellee's investment was presented, and whether it established an enhancement of property value by $12,300. Finally, appellants failed to abstract or identify any evidence to challenge the court's determination that an equitable lien was a proper remedy. It is not even apparent that the issue was properly preserved for appeal. Appellants presented no factual argument, but asserted that the judge should have ordered execution instead of the equitable lien. In lieu of argument, appellants merely summarized an analogous case and concluded that because the cases were similar the remedies should be the same.

It is well established that the abstract is the record for purposes of appeal. Allen v. Routon, 57 Ark. App. 137, 943 S.W.2d 605 (1997). Our supreme court has held that section 4-2 (a) (6) of the Arkansas Supreme Court Rules is violated when there are no references to the pages of an abstract and only transcript citations are supplied to the court. Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994). A transcript is not examined to reverse a lower court. Oliver v. Washington County Arkansas, 328 Ark. 61, 940 S.W.2d 884 (1997). Instead, the burden is clearly placed on the appealing party to provide a record and an abstract sufficient for appellate review. Lee v. Villines, 328 Ark. 189, 942 S.W.2d 844 (1997); Cosgrove v. City of West Memphis, 327 Ark. 324, 938 S.W.2d 827 (1997). Issues not supported by convincing argument or authority are not considered by this court. Schmidt v. Person, Evans & Chadwick, 326 Ark. 499, 931 S.W.2d 774 (1996). We will not entertain an argument when we cannot determine from the abstract what arguments were made to the lower court. Cosgrove, 327 Ark. at 328, 938 S.W.2d at 830. Our supreme court has, in the past, refused to review an appeal that consisted of a nine-page, difficult to read abstract that purported to condense an extensive record with numerous volumes. See Jewell v. Miller Co. Elec. Comm., 327 Ark. 153, 936 S.W.2d 754 (1997).

Rule 4-2(a)(6) of the Arkansas Supreme Court clearly requires that the abstract shouldcontain "pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the Court for decision." The purpose of an abstract is to give us an understanding of the issues on appeal. McAdams v. Automotive Rentals, Inc., 325 Ark. 332, 924 S.W.2d 464 (1996). We may affirm for noncompliance with the Rule when there is a flagrantly deficient abstract.

In the matter before us for review, appellants fail to cite to their abstract at any point in their argument. Although the record in this case is 429 pages and is bound in three volumes, we note that the abstract is only five pages and three lines long. The abstract does not contain the relevant objections and rulings; it omits almost all of the testimony presented by appellee; and includes only one of the fifteen exhibits presented by appellee. As a consequence, we do not learn from appellants' abstract the basis for the chancellor's decisions regarding the issues raised on appeal. While appellee has cured some of the deficiencies by submitting a supplemental abstract, we find the supplemental abstract insufficient to cure all of the deficiencies of appellants' brief.

We find the record as abstracted is insufficient to demonstrate error, and thus appellants are procedurally barred on all three issues.

Affirmed.

STROUD, C.J., and BIRD, J., agree.