Gladys Farris and Julie Burris v. Merrill Lynch Bank and Trust Company (Cayman) Limited
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SUPREME COURT OF ARKANSAS
No. 08-114
GLADYS FARRIS AND JULIE BURRIS,
Opinion Delivered February 14, 2008
APPELLANTS,
MOTION TO DISMISS APPEAL.
VS.
MERRILL LYNCH BANK AND
TRUST COMPANY (CAYMAN)
LIMITED,
APPELLEE,
MOTION GRANTED; APPEAL
DISMISSED.
PER CURIAM
In this probate matter, the Sevier County Circuit Court entered an order on
September 19, 2007, dismissing the appeal for lack of jurisdiction. On October 1, 2007, a
notice of appeal from the September 19 order was filed on behalf of Appellants Gladys Farris
and Julie Burris. Thereafter, on December 12, 2007, a motion for extension of time to lodge
the record was filed in the circuit court. The partial record contains no order extending time
for filing the record. Citing Voyles v. Voyles, 311 Ark 181, 842 S.W.2d 21 (1992), Appellee
now moves to dismiss arguing that the failure to lodge the record within ninety days of the
filing of the notice of appeal requires dismissal. Appellee argues its motion to dismiss should
be granted for failure to comply with Ark. R. App. P. – Civil 5 (2007).
Rule 5 provides in pertinent part:
(a) When filed. 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, unless the time is extended by order of the circuit court
as hereinafter provided. When, however, an appeal is taken from an
interlocutory order under Rule 2(a)(6) or (7), the record must be filed with the
clerk of the Supreme Court within thirty (30) days from the entry of such
order.
Id. (emphasis added).
The ninety days contemplated by Rule 5 begins to run from the filing of the first
notice of appeal. 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. Id.
Here, more than ten days have passed since Appellee’s motion to dismiss was filed and
there is no response from Appellants. Ark. Sup. Ct. R. 2-1(d). More than ninety days have
passed since Appellants filed their notice of appeal, no extension of time to file the record has
been granted, and the record has not been lodged with our clerk. Therefore, we grant
Appellee’s motion and dismiss this appeal.
Motion granted; appeal dismissed.
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