Builder One Carpet One a/d/b/a Design One Carpet One v. David Wilkins and Janet Wilkins

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION II

BUILDER ONE CARPET ONE a/d/b/a DESIGN ONE CARPET ONE

APPELLANT

V.

DAVID WILKINS and JANET WILKINS

APPELLEES

CA02-214

September 25, 2002

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

CV-2001-2691

HON. JOHN PLEGGE, JUDGE

REBRIEFING ORDERED

Appellees David and Janet Wilkins obtained a default judgment against appellant, Builder One Carpet One a/d/b/a Design One Carpet One (Carpet One). Carpet One filed a motion to set aside the default judgment on the ground that service did not comply with Ark. R. Civ. P. 4 and therefore the judgment was void. On appeal, appellant contends that the trial court erred in not setting aside the default judgment. We cannot reach the merits of appellant's argument because its brief does not comply with Ark. Sup. Ct. R. 4-2. Therefore, we order rebriefing.

Rule 4-2(a)(8) of the Rules of the Supreme Court provides that the addendum shall include a copy of the judgment from which the appeal is taken, along with any other relevant pleadings, documents, or exhibits essential to an understanding of the case and the Court's jurisdiction on appeal. In the present case, the judgment appealed from was not included in the addendum. Additionally, appellant did not abstract or include in the addendum pertinent pleadings or documents, such as the summons and complaint, the motion to set aside default judgment, or the notice of appeal. Failure to abstract an item essential to the understanding of the appeal has traditionally been regarded as a fatal error, which has been held to be an adequate basis to affirm fornoncompliance with the abstracting rules. See McNeil v. Lillard, ___ Ark. App. ___, ___ S.W.3d ___ (September 4, 2002). Pursuant to Ark. Sup. Ct. R. 4-2(b)(3), which was modified by In Re: Modification of the Abstracting System, 345 Ark. Appx. 626 (2001), the court must now allow rebriefing before summarily affirming. The applicable version of Ark. Sup. Ct. R. 4-2(b)(3) provides:

(3) Whether or not the appellee has called attention to deficiencies in the appellant's abstract or Addendum, the Court may address the question at any time. If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, Addendum, and brief, at his or her own expense, to conform to Rule 4-2 (a)(5) and (8). 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. If after the opportunity to cure the deficiencies, the appellant fails to file a complying abstract, Addendum and brief within the prescribed time, the judgment or decree may be affirmed for noncompliance with the Rule.

We find appellant's abstract and addendum to be deficient such that we cannot reach the merits of the case. Therefore, appellant has fifteen days from the date of this opinion to file a substituted abstract, addendum, and brief to conform to Rule 4-2(a)(5) and (8). See Ark. Sup. Ct. R. 4-2(b)(3); In Re: Modification of the Abstracting System, 345 Ark. Appx. 626 (2001), supra. Mere modifications of the original brief will not be accepted. Id. Upon filing of the substituted brief, appellees, if they so choose, shall have fifteen days to revise or supplement their brief at appellant's expense. If appellant fails to file a complying abstract, addendum, and brief within the prescribed time, the judgment may be affirmed for noncompliance with the Rule.

Rebriefing ordered.

Jennings and Crabtree, JJ. agree.