Eastman v. Canal Ins. Co.
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Cite as 2011 Ark. App. 344
ARKANSAS COURT OF APPEALS
DIVISION II
No. CA10-1078
Opinion Delivered
DONALD WAYNE EASTMAN
APPELLANT
May 11, 2011
APPEAL FROM THE OUACHITA
COUNTY CIRCUIT COURT
[NO. CV-2009-141-2]
V.
HONORABLE MICHAEL R.
LANDERS, JUDGE
CANAL INSURANCE CO.
APPELLEE
APPEAL DISMISSED
JOHN MAUZY PITTMAN, Judge
Appellant Donald Eastman appeals an order of the Ouachita County Circuit Court
dismissing his complaint against appellee Canal Insurance Co. and a separate order awarding
Canal attorney’s fees. Eastman’s appeal must be dismissed because he failed to timely file the
record on appeal.
The circuit court’s order granting Canal’s motion to dismiss was entered on April 15,
2010. Eastman filed a pro se notice of appeal on May 12, 2010. Following subsequent
requests for attorney’s fees from Canal, the circuit court entered another order modifying the
original order to include an award of attorney’s fees on July 12, 2010. Eastman filed an
amended notice of appeal on July 15, 2010, stating that he was appealing from the April 15,
2010 order.
Cite as 2011 Ark. App. 344
On September 23, 2010–more than ninety days after the filing of his first notice of
appeal–Eastman filed a motion for extension of time to file the record on appeal. He lodged
the record with this court on October 12, 2010, and tendered his brief on November 17,
2010
Rule 5(a) of the Arkansas Rules of Appellate Procedure–Civil makes it clear that the
record on appeal “shall be filed with the clerk of the Arkansas Supreme Court and docketed
therein within 90 days from the filing of the first notice of appeal.” Any extension of time
to lodge the record must be obtained before the expiration of that ninety-day period. Ark.
R. App. P.–Civ. 5(b)(1). The ninety days contemplated by Rule 5 begins to run from the
filing of the first notice of appeal. Farris v. Merrill Lynch Bank & Trust Co., 372 Ark. 373, 276
S.W.3d 257 (2008); Conlee v. Conlee, 366 Ark. 342, 235 S.W.3d 515 (2006). If a party fails
to file the record within the ninety-day period provided under Rule 5(a), the party’s appeal
is dismissed. Farris, supra; Dalton v. First State Bank of Warren, 374 Ark. 142, 288 S.W.3d 89
(2008) (failure to lodge the record within ninety days from the first notice of appeal is fatal
when no extension of time has been requested and granted).
Here, Eastman’s first notice of appeal was filed on May 12, 2010; ninety days from
that date would have been August 10, 2010. Eastman did not file his record with the clerk
of this court until October 12, 2010, more than two months after it was due. In addition,
although he attempted to obtain an extension of time to lodge the record, that request was
not filed with the circuit court until September 23, 2010, which was also outside the ninety-
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Cite as 2011 Ark. App. 344
day period following the filing of his notice of appeal. Accordingly, Eastman’s appeal is
dismissed.
Appeal dismissed.
A BRAMSON and M ARTIN, JJ., agree.
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