Meyer v. CDI Contractors, LLC
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SUPREME COURT OF ARKANSAS
No.
08-654
ROBERT MEYER d/b/a MEYER
EXCAVATORS CONTRACTORS
APPELLANT,
VS.
Opinion Delivered M arch 5, 2009
AN APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT, NO.
CV02-6804, HONORABLE JAY
MOODY, CIRCUIT JUDGE
CDI CONTRACTORS, LLC
APPELLEE,
REBRIEFING AND SUPPLEMENTAL
RECORD ORDERED
PER CURIAM
This court granted a petition for review filed by appellant Robert Meyer, d/b/a Meyer
Excavators Contractors. The petition requested this court to review a decision by the court
of appeals affirming the trial court’s grant of summary judgment in favor of CDI Contractors,
L.L.C. (CDI) on Meyer’s fraudulent-inducement claim. We order rebriefing, however,
because Meyer did not comply with Ark. Sup. Ct. R. 4-2(a)(5) (2008). Meyer failed to
abstract depositions that provided a substantial amount of evidence to support CDI’s motion
for summary judgment. Further, on July 6, 2005, Meyer filed a response to CDI’s motion
for summary judgment that stated: “[Meyer] has controverted the facts alleged by [CDI] as
detailed in [Meyer’s] Brief in Support of this Response. [Meyer] incorporates by reference his
Brief in Support of this Response.” (Emphasis added). CDI’s reply brief indicates that Meyer
filed his brief in support of his July 6, 2005 response, but it is not included in the addendum
or the record. Thus, the record is incomplete.
Rule 4-2(a)(5) provides, in pertinent part:
The appellant’s abstract or abridgment of the transcript should consist 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.
The procedure to be followed when an appellant has submitted an insufficient abstract
or addendum is set forth 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 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.
Arkansas Rule of Appellate Procedure–Civil 6(c) (2008) provides that this court can
sua sponte direct the parties to supply omitted material by filing a certified, supplemental
record. See also Gilbert v. Moore, 362 Ark. 657, 210 S.W.3d 125 (2005).
Accordingly, under Ark. Sup. Ct. R. 4-2 and Ark. R. App. P.– Civ. 6(c), we order
Meyer to file a substituted abstract, addendum, and brief, and to file a certified, supplemental
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record that includes the omitted brief in support within fifteen days from the date of entry of
this order. If Meyer fails to do so within the prescribed time, the judgment appealed from
may be affirmed for noncompliance with Rule 4-2. After service of the substituted abstract,
addendum, and brief, CDI shall have an opportunity to revise or supplement its brief in the
time prescribed by the Court.
Rebriefing and supplemental record ordered.
D ANIELSON AND C ORBIN , JJ., concur.
D ANIELSON, J., concurring. I concur with the order to rebrief and to supplement the
record in the instant matter. But in addition, I take this opportunity to encourage the
readoption of our former rule of affirmance in such cases. Two years ago, this court alerted
the bar to the problems this court was incurring due to deficient appellate briefs. See In re
Appellate Practice Concerning Defective Briefs, 369 Ark. Appx. 553 (2007). In that vein, we
stated:
With this current raft of nonconforming briefs, and the time wasted and
expense incurred, this court may be forced in the near future to return to its
former rule of affirmance.
369 Ark. Appx. at 554.
It is my opinion that, two years later, we have reached “the near future.” So far this
term, since August 2008, we have ordered rebriefing in eleven cases, and we still have several
months to go. In the prior term, we ordered rebriefing in nine cases, and, in the term before
that, during which we issued our alert, eleven cases. It is clear that our deficient-brief
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problem is getting worse, not better. Enough is enough.
C ORBIN , J., joins.
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