Foremost Ins. Co. v. Miller Cnty Cir. Ct.
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Cite as 2009 Ark. 636
SUPREME COURT OF ARKANSAS
No. 09-587
FOREMOST INSURANCE COMPANY
AND FOREMOST PROPERTY AND
CASUALTY INSURANCE COMPANY,
PETITIONERS,
Opinion Delivered
December 17, 2009
PETITION FOR
PROHIBITION.
WRIT
OF
VS.
MILLER COUNTY CIRCUIT COURT,
THIRD DIVISION, THE HONORABLE
KIRK JOHNSON, CIRCUIT JUDGE
PRESIDING,
RESPONDENT,
CERTIFIED, SUPPLEMENTAL
RECORD ORDERED; SUBSTITUTED
BRIEF ORDERED.
PER CURIAM
Petitioners Foremost Insurance Company and Foremost Property and Casualty
Insurance Company petition this court for a writ of prohibition to prevent the Miller County
Circuit Court from exercising jurisdiction over them in a class-action suit. The plaintiffs in
the underlying case filed a responsive brief.
On September 8, 2004, the plaintiffs filed suit on behalf of a proposed nationwide class
against Petitioners, as well as several other insurance companies. In their third amended
complaint, the plaintiffs, who are customers of the defendants, allege that the defendants
improperly profited by wrongfully underpaying certain claims. Specifically, the defendants
failed to pay the profit and overhead of general contractors whom the plaintiffs hired in
connection with loss or damage to real property insured by the defendants. The plaintiffs
Cite as 2009 Ark. 636
claim that the defendants conspired to perpetuate an environment wherein insurance
customers were deceived about the coverage of these costs by their insurance policies. As a
result of the alleged conspiracy, fraudulent concealment, fraud, and constructive fraud, the
plaintiffs assert that the defendants were unjustly enriched.
Beginning on November 15, 2004, Petitioners filed a series of motions to dismiss all
claims against them pursuant to Rules 8(a), 9(b), 12(b)(1) and 12(b)(6) of the Arkansas Rules
of Civil Procedure. Petitioners asserted in the motions that the claims of the only plaintiff
with whom Petitioners had a contractual relationship had been dismissed. Based on that
assertion, Petitioners argued that the remaining plaintiffs lacked standing to bring suit against
Petitioners and no claim existed upon which relief could be granted. The plaintiffs, in turn,
responded that ruling on Petitioners’ motions would require the circuit court to impermissibly
delve into the merits of the plaintiffs’ claims before class certification. In particular, the
plaintiffs argued below that Petitioners need not have directly insured any of the plaintiffs in
order for Petitioners to be guilty of conspiring with the other defendants to defraud insurance
customers. In an order entered on April 28, 2009, the circuit court deferred ruling on
Petitioners’ motions to dismiss until after resolution of the plaintiffs’ motion for class
certification.
The court reasoned that standing is not a jurisdictional issue, and that
determining whether the plaintiffs lacked standing would involve delving into the merits of
the case, which the court may not do until it addresses the issue of class certification.
In their petition for a writ of prohibition, Petitioners assert that no justiciable matter
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Cite as 2009 Ark. 636
is pending against them in the underlying case. However, we are unable to consider the
petition at this time because Petitioners’ brief is not in compliance with Ark. Sup. Ct. R. 42(a)(5) and (6) (2009).
A party seeking prohibition must produce a record sufficient to show that the writ is
clearly warranted. Sherwood v. Glover, 331 Ark. 124, 958 S.W.2d 526 (1998). Specifically,
a party must include an “abstract or abridgement of the transcript [consisting] of an impartial
condensation, without comment or emphasis, of only such material parts of the testimony of
the witnesses and colloquies between the court and counsel and other parties as are necessary
to an understanding of all questions presented to the Court for decision.” Ark. Sup. Ct. R.
4-2(a)(5). A party must also provide “an Addendum which shall include true and legible
photocopies of the order . . . along with any other relevant pleadings, documents, or exhibits
essential to an understanding of the case and the Court’s jurisdiction.” Ark. Sup. Ct. R. 42(a)(6).
The procedure to be followed when a party has provided an insufficient abstract and
Addendum is set out in Ark. Sup. Ct. R. 4-2(b)(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
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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.
In the instant case, Petitioners’ brief lists five separate motions to dismiss and briefs in
support as the basis for the petition for writ of prohibition. Yet, none of these documents is
included in the Petitioners’ Addendum. Likewise, in their argument in support of the
petition, Petitioners rely on, but do not include in the Addendum, the following relevant
pleadings and documents: plaintiffs’ third amended complaint; Petitioners’ notice of removal
to the United States Bankruptcy Court, dated March 27, 2008; and Petitioners’ Suggestion
of Death, dated August 1, 2008. Finally, Petitioners reference a hearing that the circuit court
held on June 30, 2009, during which Petitioners made arguments in support of their motions
to dismiss. Not only have Petitioners failed to include an abstract of this hearing, but the
record also does not contain a transcript of the hearing. The Arkansas Rules of Appellate
Procedure–Civil state in relevant part:
If anything material to either party is omitted from the record by error or
accident or is misstated therein, the parties by stipulation, or the circuit court
before the record is transmitted to the appellate court, or the appellate court on
motion, or on its own initiative, may direct that the omission or misstatement
shall be corrected, and if necessary, that a supplemental record be certified and
transmitted. All other questions as to form and content of the record shall be
presented to the appellate court. No correction or modification of the record
shall be made without prior notice to all parties.
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Ark. R. App. P.–Civ. 6(e) (2009). Pursuant to Ark. R. App. P.–Civ. 6(c) and (e), this court
can sua sponte direct the parties to supply any omitted material by filing a certified,
supplemental record. Ark. R. App. P.–Civ. 6(e).
Accordingly, we order Petitioners to file a substituted brief, curing the flagrant
deficiencies in the abstract and Addendum, within fifteen days from the date of entry of this
order. Petitioners are further ordered to supply this court with a certified, supplemental
record that includes the transcript of the hearing held on June 30, 2009, within fifteen days
from the date of entry of this order. While examples of deficiencies in the abstract,
Addendum, and record are noted above, we encourage Petitioners, prior to filing the
substituted brief and supplemental record, to review our rules, the entire record, and their
substituted brief to ensure that no additional deficiencies are present. See Gentry v. Robinson,
2009 Ark. 345 (per curiam). If Petitioners fail to file a substituted brief and supplemental
record within the time period specified, the circuit court’s judgment may be affirmed for
noncompliance with this Rule. Erin, Inc. v. Circuit Court of White County, 368 Ark. 595, 247
S.W.3d 849 (2007).
After service of the substituted brief and supplemental record,
Respondents shall have an opportunity to file a responsive brief in the time prescribed by the
supreme court clerk, or to rely on the brief previously filed in this appeal.
Certified, supplemental record ordered; substituted brief ordered.
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