Clair's One Stop, Inc., Robert Tidwell et al. v. Allied Associates, Inc.

ARKANSAS SUPREME COURT

No. 05-128

NOT DESIGNATED FOR PUBLICATION

ALLIED ASSOCIATES, INC. Respondent

v.

CLAIR'S ONE STOP, INC., ROBERT TIDWELL, et al

Petitioners

Opinion Delivered May 19, 2005

PRO SE MOTION FOR RULE ON CLERK [CIRCUIT COURT OF PULASKI COUNTY, CV 2004-5596, HON. BARRY SIMS, JUDGE]

MOTION DENIED

PER CURIAM

Allied Associates of Arkansas, Inc. (Allied) filed a civil complaint against Clair's One Stop, Inc. and Robert Tidwell. On August 19, 2004, judgment was entered in favor of Allied. Tidwell filed a timely notice of appeal on August 31, 2004.

On December 21, 2004, one-hundred and twelve days after the notice of appeal was filed, Tidwell tendered the record to this court. Our clerk correctly declined to lodge it because it was not tendered here within ninety days of the date of the notice of appeal as required by Ark. R. App. P.-Civil 5(a). The timely lodging of the record has been deemed a jurisdictional requirement to perfecting an appeal. Seay v. Wildlife Farms, Inc., 342 Ark. 503, 29 S.W.3d 711 (2000). Now before us is petitioner Tidwell's motion for rule on clerk seeking to lodge the record belatedly.1

As grounds for the request to lodge the record belatedly, petitioner contends that it was the fault of the circuit court that the record was not tendered in a timely manner. This court has specifically held that it is not the responsibility of the circuit clerk, circuit court, or anyone other than the appellant to perfect an appeal. See Sullivan v. State, 301 Ark. 352, 784 S.W.2d 155 (1990). It was thus the petitioner's burden to tender the record here within the time allowed by Rule 5(a). The failure to timely tender the record is cause to dismiss an appeal. Seay, supra. The motion for rule on clerk is denied.

The respondent Allied in its response to the motion avers that it has incurred expenses in responding to the motions filed by petitioner regardless of whether he properly pursued the appeal and should be awarded its costs and attorney's fees related to the proceeding. Respondent may submit a separate motion setting out its expenses in detail and providing legal authority for its request.

Motion denied.

Imber, J., not participating.

1 Petitioner initially tendered the motion for rule on clerk on January 11, 2005, without the fee required to file the motion. On February 3, 2005, he filed a motion to proceed in forma pauperis, seeking to have the filing fee waived. The motion was denied. Clair's One Stop, Inc. v. Allied Associates, Inc., 05-128 (Ark. March 23, 2005) (per curiam). Petitioner subsequently submitted the filing fee and the motion for rule on clerk was filed April 14, 2005.