McPeek v. White River Lodge Enters.

Donald L. McPEEK, et al. v. WHITE RIVER LODGE
ENTERPRISES, et al.

93-1267                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered June 17, 1996


1.   Appeal & error -- no showing motion ever ruled upon at trial -
     - issue not reached on appeal. -- Appellant's contention that
     the chancellor erred in denying attorney's fees sought
     pursuant to Ark. Code Ann.  14-236-106 (Supp. 1995) was not
     addressed by the supreme court where the abstract contained no
     order denying a request for fees made pursuant to the statute.

2.   Appeal & error -- no order denying relief abstracted --
     appellate court did not reach issue. -- Appellant's argument
     that the chancellor erred by excluding part of the fees and
     costs requested for violation of ARCP Rule 11 and by denying
     fees and costs sought by them pursuant to Ark. Code Ann.  16-
     22-309(a)(1) (Repl. 1994) was not reached on appeal where
     there was no order in the abstract denying such relief or
     showing that it was considered by the chancellor.

3.   Appeal & error -- bare essentials of abstract -- neither
     appellants or cross-appellants properly abstracted record to
     demonstrate error. -- A summary of the pleadings and the
     judgment appealed from are the bare essentials of an abstract;
     an appellant's abstract or abridgement of the record should
     consist of an impartial condensation of the material parts of
     the pleadings, proceedings, facts, documents, and other
     matters in the record as are necessary to an understanding of
     all questions presented to the appellate court for decision;
     it is impractical, and oftentimes impossible, for all seven
     judges to attempt to pass around the one record; it is the
     appellant's burden to abstract the record to demonstrate
     error, and the appellate court will not go to the record to
     determine whether reversible error occurred; the same rule
     applies to cross-appellants. 


     Appeal from Carroll Chancery Court; Terry Crabtree,
Chancellor; affirmed on appeal; affirmed on cross-appeal.
     Austin & Osborne, by:  Brenda Austin, for appellants.
     Matthews, Campbell, Rhoads, McClure & Thompson, P.A., by: 
David R. Matthews and Larry J. Thompson, for appellees.

     David Newbern, Justice.June 17, 1996   *ADVREP*SC2*


DONALD L. MCPEEK, et al.           93-1267
                                   Opinion Delivered:
          Appellants
     v.                            Appeal from Carroll County
                                   Chancery Court
WHITE RIVER LODGE ENTERPRISES,
et al.                             Honorable Terry Crabtree,
          Appellees                Chancellor
                                   Affirmed on Appeal;
                                   Affirmed on Cross-Appeal




                     David Newbern, Justice.
     
     The procedural history of this case, which began in 1988, is
long and tortured.  It now comes to an end as we must affirm on
appeal and on cross-appeal because of failure of the parties to
furnish abstracts of the orders from which the appeal and cross-
appeal have been taken.
     Donald and Mary Louise McPeek sought an injunction preventing
White River Lodge Enterprises and its general partners (White
River) from discharging effluent on the McPeeks' property from
White River's sewage disposal system.  White River counter-claimed,
alleging the McPeeks were improperly claiming title to property
belonging to White River at their joint boundary.  The boundary
dispute counter-claim was not pursued by White River at the trial,
and a judgment was entered on June 21, 1993, denying the injunctive
relief sought by the McPeeks.    
     The McPeeks filed a notice of appeal on July 9, 1993, and
proceeded with an appeal before this Court.  Thereafter, they moved
in the Chancery Court to have the judgment set aside on the ground
that Timothy Coplin, one of the owners of White River, had given
false testimony.  The appeal pending in this Court was dismissed,
and the case was remanded to the Chancellor to settle the record. 
On March 25, 1994, the Chancellor set the original judgment aside.
     After further hearings, the Chancellor awarded an injunction
in favor of the McPeeks by an order entered August 2, 1994.  The
McPeeks filed a supplemental motion on October 20, 1994, alleging
unnecessary delay, harassment, interference with discovery, false
testimony, and a false claim against their real property, seeking
costs and fees pursuant to Ark. R. Civ. P. 11.  As abstracted, the
motion mentions only Rule 11 as a basis for recovery.
     In an order entered January 24, 1995, the Chancellor imposed
Rule 11 sanctions on White River, and the McPeeks were given 10
days to submit an itemized list of fees and costs.  The abstract
contains no further order concerning the fees and costs; nor is
there any abstract of the list of fees and costs to be considered
by the Chancellor.  Some fee and costs lists are included as
"addenda" at the conclusion of the McPeeks' brief, but we have no
way of knowing if how, or when, these lists were submitted to the
Chancellor.  Many of the items in them are stated as "fees" without
further information as to who charged them or to whom they were
paid, if they were paid, or to what aspect of the case they may
have been related.  We do have an abstract of testimony by Mr.
McPeek stating that he was, during his testimony, handed a list of
fees and expenses he says he paid in connection with the
litigation, but we do not have any way of knowing if the lists in
the addenda to the brief are the ones handed to him during his
testimony.
     In arguing their first point of appeal, the McPeeks contend
the Chancellor erred in denying attorney's fees sought pursuant to
Ark. Code Ann.  14-236-106 (Supp. 1995).  That section provides
for the awarding of attorney's fees, damages, and a penalty against
one who "willingly and knowingly" violates the Arkansas Sewage
Disposal Systems Act.  Ark. Code Ann.  14-236-101 through 14-236-
118 (1987 and Supp. 1995).  The abstract contains no order denying
a request for fees made pursuant to that statute.  As noted above,
the only reference in the abstract of the motion for fees shows
that the fees were sought pursuant to Rule 11, and there is no
mention of the statute.  The McPeeks have not demonstrated that the
Chancellor ruled on their motion, even if we could conclude the
motion was made pursuant to the statute.  Farmers Bank v. Perry,
301 Ark. 547, 787 S.W.2d 645 (1990).
     In their second point, the McPeeks argue the Chancellor erred
by excluding part of the fees and costs requested for violation of
Rule 11 and by denying fees and costs sought by them pursuant to
Ark. Code Ann.  16-22-309(a)(1) (Repl. 1994).  The latter is the
legislative provision for recovery of an attorney's fee against a
party who files an action lacking a justiciable issue.  Again, we
have no order in the abstract denying such relief or showing that
it was considered by the Chancellor.
     In its first argument on cross-appeal, White River contends
the Chancellor erred in setting aside the original judgment.  There
is no abstract of the motion to vacate or response to such a
motion, nor is there any abstract of a hearing held to consider the
motion.  The order from which the cross-appeal is taken is
abstracted in the McPeeks' abstract only as follows: "ORDER, dated
March 21, 1994, filed March 25, 1994."  White River provided no
supplemental abstract in its opening brief on cross-appeal, so we
have no idea what the order said or the basis of its entry.
     A summary of the pleadings and the judgment appealed from are
the bare essentials of an abstract.  Logan County v. Tritt, 302
Ark. 81, 787 S.W.2d 239 (1990); Jolly v. Hartje, 294 Ark. 16, 740 S.W.2d 143 (1987).  An appellant's abstract or abridgement of the
record should consist of an impartial condensation of the material
parts of the 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.  Davis v. Peebles,
313 Ark. 654, 857 S.W.2d 825 (1993).  The reason for the rule, as
we have often explained, is that there is only one record and there
are seven judges.  It is impractical, and oftentimes impossible,
for all seven judges to attempt to pass around the one record. 
Pennington v. City of Sherwood, 304 Ark. 362, 802 S.W.2d 456
(1991).  It is the appellant's burden to abstract the record to
demonstrate error, and the appellate court will not go to the
record to determine whether reversible error occurred.  Farmers
Bank v. Perry, supra.  The same rule applies, of course, to cross-
appellants.  See Stephens Prod. Co. v. Johnson, 311 Ark. 206, 849 S.W.2d 479 (1993).
     Without abstracts of the sanction ruling from which the
McPeeks appeal and the order setting aside the judgment from which
White River appeals, we decline to reverse the Chancellor on
either.
     In conclusion, we note that White River has moved to dismiss
the McPeeks' appeal, supporting the motion with a supplemental
abstract in its reply brief.  The McPeeks have moved to strike
White River's supplemental abstract.  In view of our decision to
affirm on the basis of Rule 4-2(h), we need not consider or decide
those motions.      
     Affirmed on appeal and on cross-appeal.      
     Dudley, J., not participating.
     Brown, J., concurs in part and dissents in part.Associate Justice Robert L. Brown
June 17, 1996   *ADVREP*SC2-A*






DONALD L. MCPEEK, ET AL,
                   APPELLANTS,

V.

WHITE RIVER LODGE ENTERPRISES,
ET AL,
                    APPELLEES,

93-1267




APPEAL FROM THE CARROLL COUNTY
CHANCERY COURT,
HON. TERRY CRABTREE, JUDGE,





CONCURRING IN PART; DISSENTING
IN PART.






     I agree with part of the majority opinion but take issue with
one significant point.  After White River Lodge Enterprises argued
in its appellee's brief that the McPeeks' original brief was
defective due to failure to abstract a certain trial court ruling
on statutory fees and a statement of fees and costs, McPeek moved
for permission to substitute an abstract to correct those
deficiencies.  The motion to substitute was filed on the date the
McPeeks' reply brief was due, which was February 20, 1996.  On that
same date, McPeek tendered a substituted original abstract and
brief to rectify the deficiencies pursuant to Ark. Sup. Ct. R. 4-
2(b)(2).  This, of course, all occurred long before the case was
submitted for this court's consideration.  The motion to substitute
was denied.
     Now, a majority of the court refuses to consider the McPeeks'
argument on appeal for failure to abstract a court ruling on
statutory fees and a statement of fees and costs pursuant to
Supreme Court Rule 4-2(b).  This is so even though the McPeeks
sought permission to correct their abstract deficiency well in
advance of the submission of the case.
     This court routinely grants motions to supplement abstracts
before the case is submitted with any costs necessitated by the
opposing party's rebriefing to be assessed against the moving
party.  See, e.g., Dixon Ticonderoga Co. v. Winburn Tile Manuf.
Co., 322 Ark. 817, 911 S.W.2d 955 (1995) (per curiam).  We do so
under the authority of Ark. Sup. Ct. R. 4-2(b)(2), which reads:
          (2) Whether or not the appellee has called attention
     to deficiencies in the appellant's abstract, the Court
     may treat the question when the case is submitted on its
     merits.  If the Court finds the abstract to be flagrantly
     deficient, or to cause an unreasonable or unjust delay in
     the disposition of the appeal, the judgment or decree may
     be affirmed for noncompliance with the Rule.  If the
     Court considers that action to be unduly harsh, the
     appellant's attorney may be allowed time to revise the
     brief, at his or her own expense, to conform to Rule 4-
     2(a)(6).  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.  (Emphasis added.)
Hence, our rule allows us to accept substituted abstracts even
after the matter has been submitted for decision.  We have
typically declined to do that, but where the requested abstract
substitution occurred before submission, we generally grant the
request.
     I would correct the error in refusing to allow an abstract
substitution in this case and reach the merits of White River Lodge
Enterprises' motion to dismiss and the McPeeks' request for
additional fees.  For that reason, I respectfully dissent.