Bryan v. City of Cotter
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SUPREME COURT OF ARKANSAS
No. 08-811
JUSTIN
BRYAN,
CONSTRUCTION,
d/b/a
J&L
APPELLANT,
VS.
CITY OF COTTER, ARKANSAS; CITY
OF GASSVILLE, ARKANSAS; GARVER,
INC.; GRUBBS, HOSKYN, BARTON &
WYATT, INC.,
APPELLEES,
Opinion Delivered April 2, 2009
AN APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT, NO.
CV05-7521, HONORABLE CHRIS
PIAZZA, CIRCUIT JUDGE
REBRIEFING ORDERED.
PER CURIAM
Appellant Justin Bryan, doing business as J&L Construction, appeals from the circuit
court’s orders granting Appellee Grubbs, Hoskyn, Barton & Wyatt, Inc.’s motion to dismiss;
Appellee Garver, Inc.’s motion for partial summary judgment; and Appellees City of Cotter
and City of Gassville’s joint motion for partial summary judgment. Because Bryan has
submitted a brief without a proper addendum in violation of Arkansas Supreme Court Rule
4-2(a)(8) (2008), we order rebriefing.
Rule 4-2(a)(8) provides, in pertinent part:
Following the signature and certificate of service, the appellant’s brief shall
contain an Addendum which shall include true and legible photocopies of the
order, judgment, decree, ruling, letter opinion, or Workers’ Compensation
Commission opinion from which the appeal is taken, along with any other
relevant pleadings, documents, or exhibits essential to an understanding of the
case and the Court’s jurisdiction on appeal.
Ark. Sup. Ct. R. 4-2(a)(8). The procedure to be followed when an appellant has submitted
an insufficient abstract or addendum is set forth in Arkansas Supreme Court Rule 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.
Ark. Sup. Ct. R. 4-2(b)(3).
Here, Bryan’s brief is deficient due to the fact that his addendum lacks relevant
pleadings essential to an understanding of the case. On appeal, he challenges the circuit
court’s orders of dismissal in favor of all four Appellees. However, his addendum fails to
include any of the motions leading to the orders of dismissal, as well as the responses and
replies thereto and the briefs in support thereof. Separate Appellee Grubbs, Hoskyn, Barton
& Wyatt, Inc. has submitted a supplemental addendum, which includes its own motion to
dismiss and brief in support and its reply to Bryan’s response to the motion. Bryan’s response
is not included. The supplemental addendum also includes Garver, Inc.’s motion for partial
summary judgment and brief in support, as well as Garver, Inc.’s reply to Bryan’s response to
the motion. Again, Bryan’s response and supplemental response are not included. The
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supplemental addendum does not include any of the pleadings leading to the summary
judgment granted to the cities.
This court has consistently ordered rebriefing in appeals of summary judgments where
the addendum fails to include the motion for summary judgment, the opposing party’s
response to the motion, the moving party’s reply to the response, and any briefs in support.1
We have been presented with this situation several times in recent months. See, e.g., Brock
v. Townsell, supra; Neely v. McCastlain, supra; Whiteside v. Russellville Newspapers, Inc., supra;
Preston v. Stoops, supra. We have required rebriefing in each instance.2 Moreover, we have
1
The dissent maintains that motions and responses are not pleadings and are therefore not
required under Rule 4-2(a)(8). Our rebriefing orders in accordance with Rule 4-2(a)(8) have
always referred to absent motions and responses as pleadings. See, e.g., Brock v. Townsell, ___ Ark.
___, ___, ___ S.W.3d ___, ___ (Feb. 19, 2009) (per curiam) (addendum lacked “relevant
pleadings essential to an understanding of the case,” including motions for summary judgment,
responses and replies thereto, and briefs in support thereof); Neely v. McCastlain, ___ Ark. ___,
___, ___ S.W.3d ___, ___ (Jan. 30, 2009) (per curiam) (addendum lacked “relevant pleadings
essential to an understanding of the case,” including motion for summary judgment and response
thereto); Whiteside v. Russellville Newspapers, Inc., 375 Ark. 245, 247, ___ S.W.3d ___, ___ (2008)
(per curiam) (addendum lacked “certain pleadings,” including brief in support of summaryjudgment motion, response to summary-judgment motion and brief in support, reply to response
to summary-judgment motion, and response to reply to initial response); Preston v. Stoops, 373
Ark. 115, 116, ___ S.W.3d ___, ___ (2008) (per curiam) (addendum lacked “these pleadings,”
including response to summary-judgment motion and reply to response); White County v. Cities of
Judsonia, Kensett, & Pangburn, 368 Ark. 603, 604, 247 S.W.3d 863, 863 (2007) (per curiam)
(addendum lacked “relevant pleadings,” including motion for summary judgment and brief in
support and “any of the other pleadings considered by the circuit court in reaching its
determination”); Unum Life Ins. Co. of America v. Edwards, 361 Ark. 150, 151, 205 S.W.3d 126,
127 (2005) (per curiam) (addendum lacked “numerous pleadings,” including motion for summary
judgment and brief in support, response to motion, reply to response, and supplemental response).
2
This court recently declined to order rebriefing in an appeal of a summary judgment,
despite the fact that the motion for summary judgment was not included in the addendum.
Bryant v. Hendrix, 375 Ark. 200, ___ S.W.3d ___ (2008). We chose to accept the case as it was
briefed and address the merits because the issues on appeal were strictly questions of law, and
there were no facts in dispute. Specifically, the appellants contended that the circuit court erred
as a matter of law in ruling that their claims were precluded by the statute of limitations and that
the relation-back doctrine does not apply to the substitution of plaintiffs. “On appeal, Appellants
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reached the same result in appeals challenging the grant of a motion to dismiss. See, e.g.,
Kyzar v. City of West Memphis, 359 Ark. 366, 197 S.W.3d 502 (2004) (per curiam); Branscumb
v. Freeman, 357 Ark. 644, 187 S.W.3d 846 (2004) (per curiam).
We acknowledge the dissent’s contention that we should decide this case on its merits
as it is currently briefed, as the abstract and addendum show that the issues argued on appeal
were argued below. However, we do not consider a showing of preservation to be the sole
or essential purpose behind Rule 4-2(a)(8). This court has observed that it is impossible for
us to make an informed decision on the merits of an appeal in the absence of the pleadings
and motions on which the trial court based its decision. White County v. Cities of Judsonia,
Kensett, & Pangburn, 368 Ark. at 604, 247 S.W.3d at 864 (citing Branscumb v. Freeman, 357
Ark. at 645, 187 S.W.3d at 847); Unum Life Ins. Co. of America v. Edwards, 361 Ark. at 151,
205 S.W.3d at 127. We have previously noted the importance of showing that the issues
argued on appeal were properly preserved, but our ability to determine the merits of a case
has always been paramount. We are of the opinion that an order of a circuit court cannot be
reviewed for error when the addendum fails to include the documents on which the order
was based. In such situations, it is impossible for us to make an informed decision on the
merits, “let alone determine whether [the] arguments are, in fact, preserved for appeal.”
Conlee v. Conlee, 369 Ark. 178, 179, 251 S.W.3d 306, 307 (2007) (per curiam).
Our position on this issue is not new. See, e.g., CitiFinancial Retail Servs. Div. of
do not contend there are disputed issues of fact; rather, they argue the circuit court erred as a
matter of law in granting summary judgment on the basis of the statute of limitations.” Id. at ___,
___ S.W.3d at ___. Such is not the case here, where Bryan argues that the circuit court’s
interpretation of the contract at issue was flawed.
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CitiCorp Trust Bank, FSB v. Weiss, 371 Ark. 421, 266 S.W.3d 740 (2007) (per curiam)
(rebriefing ordered in appeal of summary judgment where addendum lacked motions for
summary judgment and briefs in support); Patrick v. State, 358 Ark. 300, 188 S.W.3d 906
(2004) (per curiam) (rebriefing ordered in appeal of denial of motion to suppress where brief
in support of motion to suppress not included); Moon v. Holloway, 353 Ark. 520, 110 S.W.3d
250 (2003) (per curiam) (rebriefing ordered in appeal of summary judgment where addendum
lacked “summary-judgment pleadings”). We have always shown a preference for a bright-line
rule with an objective standard, requiring the inclusion of pleadings and motions that led to
the order being appealed, over the subjective test advocated by the dissent.
Because Bryan has failed to comply with our rules, we order him to file a substituted
addendum and brief within fifteen days from the date of entry of this order. If Bryan fails to
do so within the prescribed time, the orders appealed from may be affirmed for
noncompliance with Rule 4-2. After service of the substituted addendum and brief, Appellees
shall have an opportunity to revise or supplement their briefs in the time prescribed by the
clerk.
Rebriefing ordered.
C ORBIN , G UNTER, AND D ANIELSON, JJ., concur.
B ROWN, J., dissents.
C ORBIN , J., concurring. While I agree that the present case must be sent back for
rebriefing, I must write separately to highlight the fact that, despite the dissent’s assertions to
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the contrary, this court is interpreting and enforcing our rules regarding briefs in a consistent
and fair manner. In a case where summary judgment was granted, the motion for summary
judgment, one of the essential items for our review, is missing from the addendum.
When this court adopted the current version of Arkansas Supreme Court Rule 42(a)(8) requiring the appellant to include an addendum, we did so to ensure that this court
had everything before it that was relevant and essential for us to decide an appeal. The dissent
now narrowly focuses on the term “pleading” to support its contention that we are becoming
“far too technical” in what we deem is essential to properly perform our appellate duties.
Characterizing a document a “pleading” is irrelevant. Rule 4-2(a)(8) plainly states that the
addendum shall include relevant “pleadings, documents, or exhibits essential to an
understanding of the case and the Court’s jurisdiction on appeal.” While I do not agree with
the dissent’s exclusion of motions from the definition of pleadings, it does not matter. If a
motion, response, or any other document is relevant to our understanding of the case, it must
be included in the addendum, regardless of how it is characterized.
The dissent’s analysis of what is essential for this court’s review is faulty for two reasons.
First, the dissent would have this court going to the record to determine whether something
is necessary to an appeal. It is axiomatic that there is only one record, and it is impossible for
seven judges to examine it. See, e.g., Hooker v. Farm Plan Corp., 331 Ark. 418, 962 S.W.2d
353 (1998). Second, in all of my years as an appellate court judge, I have never thought it
sufficient to have the “essence” of what was before the trial court. In order to make an
informed decision about an appeal, I need the benefit of the exact things the trial court relied
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on in making its decision. That is what Rule 4-2(a)(8) intended, and that is what this court
has consistently required.
I do not believe for one second that the attorneys in this state want us to rely on an
opposing party’s description, allusion to, or summary of a motion, response, or document
filed with the circuit court.3 Both sides to an appeal expect us to fully understand the case
before making our decision, and we can only do this when the parties present us with all the
items necessary to bring about that understanding. While the litigants may not be pleased
when a case is slightly delayed, I believe that justice delayed is far better than justice in
“essence.”
G UNTER and D ANIELSON, JJ., join in this concurrence.
B ROWN, J., dissenting. I write to underscore a disturbing trend in this court and that
is the number of cases we are sending back for rebriefing. That number has increased
dramatically in the last two years and is on track in 2009 to exceed the number of rebriefings
ordered in 2008. No doubt sloppy preparation by counsel for appellants has caused most of
these returns. But I fear, based on today’s decision, that my court has become far too strict
in its application of the abstract rule, and particularly the addendum rule set out in Supreme
3
The dissent’s current position that we can rely on one side’s summary of a case is wholly
contrary to the position taken in Latta v. State, 350 Ark. 488, 88 S.W.3d 833 (2002). There, the
same dissenting justice opposed the majority’s purported reliance on the State’s brief to reverse a
circuit court’s decision, stating that “[t]he result of all this is that the principle of
decision-making based on the adversary system has gone by the boards.” This begs the question:
Is it an adversary system if we rely on a party’s summary of the opposing party’s arguments,
responses, and replies?
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Court Rule 4-2(a)(8), and has gone far beyond what that rule requires. In doing so, we have
crafted yet another procedural pitfall for the appellate lawyer, which in my judgment is largely
unnecessary. We have also increased the cost of appeals due to the extra legal work required
and caused delay in the resolution of these cases.
Let me hasten to add that I have been a part of sending these cases back for rebriefing,
and so it is not my intention to disparage the court. Nevertheless, this case highlights the fact
that we have become too strict in applying our rules.
The core problem, and the essence of my dispute today with other members of this
court, is whether a particular response to a motion is “a pleading.” Secondly, I raise the
question of whether a response needs to be included in the addendum when the issues raised
in that absent response can be determined from other motions and replies in the brief, the
abstract of the hearing, or the order of the court. In the instant case, the absent response is
a response to motion for summary judgment.
The rule relied on in the per curiam provides
that our addendum shall include copies “of the order, judgment, decree, ruling, letter opinion
. . . along with any other relevant pleadings, documents, or exhibits essential to an understanding
of the case . . . .” S. Ct. R. 4-2(a)(8) (2008) (emphasis added). That rule is inapposite to these
facts. A response to a motion for summary judgment is not a pleading. Ark. R. Civ. P. 7(a);
Newbern & Watkins, 2 Arkansas Practice Series: Civil Practice and Procedure § 11:1 (4th
ed.).
It has never been this court’s requirement in our rules that every motion and response
before the trial judge be included in the addendum. That is the reason we adopted the rule
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in 2001 to require other relevant pleadings “essential to an understanding of the case.” In Re:
Modification of the Abstracting System – Amendments to Supreme Court Rules 2-3, 4-2, 4-3, and
4-4, 345 Ark. App’x 626, 627 (2001) (“The recurring theme in the comments and at the heart
of the Committee’s proposal was the need for appeals to be decided on the merits.”). The
reason for that is obvious. As appellate judges, we need only have what is essential to our
understanding of those issues before us on appeal, not every motion and response.
It is equally important for us to know that the issues and arguments raised to us on
appeal were raised to the trial judge. In certain cases, that can be determined from the order
or judgment or even from a listing of those issues and arguments in a reply, as occurred in the
instant case.4 We go too far, however, when we require every motion and response to be
included in the addendum. But that is the direction in which this court is going. It almost
behooves an appellate attorney now to abstract all hearings and the complete trial and to
include every pleading, motion, response, and brief in the addendum to protect himself or
herself from a rebriefing order.
The per curiam issued by my court today avoids any analysis or explanation for why
the absent response is essential to our appeal. What follows is a point-by-point explanation
of why the addendum and supplemental addendum pass muster and present issues ripe for our
4
This court has stated on numerous occasions that we can go to the record to affirm a
circuit court order or judgment even when the pertinent pleadings, motions, and documents are
not abstracted or placed in the addendum. See, e.g., Allen v. Allison, 356 Ark. 403, 155 S.W.3d
682 (2004). That principle begs the question of when going to the record to affirm could be
invoked if all essential pleadings, motions, and documents necessary for our review must be
either abstracted or placed in the addendum on the front end in order for the briefs to be
compliant with our rules. At the very least, this is another area that must be clarified by this
court.
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review in this case.
•
Appellant Bryan did not include his amended complaint, which added a claim
against Cotter and Gassville for breach of implied warranty. However, that
claim is not an issue in this appeal and need not be included in the addendum.
•
The first issue on appeal relates to whether the statute of limitations begins to
run at the time of occurrence or discovery. Though appellant Bryan’s response
to appellee Grubbs, Hoskyn’s motion for summary judgment is not in either
addendum, appellee Grubbs, Hoskyn spends seven pages in its reply to that
response describing what was in the response and responding to it.
See
supplemental addendum pp. 33-39. By anyone’s measure, that sufficiently
describes the response and tells us what was argued to the trial judge. In short,
appellee Grubbs, Hoskyn cured that omission. Furthermore, appellant Bryan
argued its position to the trial judge at the hearing, and that argument is
abstracted in pages 1 through 7.
•
The next issue on appeal relates to exculpatory language found in the contract
at issue in provisions SC 26 and SC 7, on which appellee relies. Appellant
Bryan’s counsel, at abstract page 16, alludes to both special conditions. But
more importantly, appellee Grubbs, Hoskyn’s reply to appellant Bryan’s response
details Bryan’s arguments regarding provisions SC 26 and SC 7 and then
responds to those arguments. See supplemental addendum pp. 70-78.
•
Regarding quantum meruit, the supplemental addendum does include appellant
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Bryan’s complaint, which fully describes Bryan’s claim for quantum meruit relief.
See supplemental addendum p. 8. The cities and Garver also refer to Bryan’s
quantum meruit claim and argue against it at the summary-judgment hearing. See
abstract p. 16.
I firmly believe that it is the obligation of this court to decide cases when the essence of
what was before the trial judge has been abstracted and placed in the addendum. Our emphasis
should be on analyzing whether an absent response is essential to an appeal when it has been
adequately described in another motion or reply or the order, rather than automatically
ordering rebriefing with the added expense and delay that occasions. We did the correct
analysis recently, as the per curiam acknowledges, in affirming summary judgment when the
motion for summary judgment was not included in the addendum and we decided the motion
was not essential. See Bryan v. Hendrix, 375 Ark. 200, ___ S.W.3d ___ (2008). We should do
the same analysis in every case for an absent motion or response. Clearly, we did not do an
analysis in the case at hand. Again, motions and responses are not pleadings.
What the opinions today illustrate is the need to amend our Supreme Court Rules, and
specifically Rule 4-2(a)(8), to detail precisely what needs to be included in the addendum. The
per curiam says individual orders for rebriefing from the court have referred to absent motions
and responses in addition to “relevant pleadings.” But Rule 4-2(a)(8) does not require that.
Perhaps, more importantly, we need to explain to the bar, in light of today’s per curiam,
that even though other motions, replies, and the order in the case may describe the issues raised
to the trial court, that is not enough. This court wants all filings, including briefs and an
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abstract of the hearing that touch and concern the issues before this court, to be included in
the abstract and addendum, even though that information can be gleaned from other filings.
Without such amendments to our rules, the orders for rebriefing will continue to
mushroom (there have already been twelve since last August), and confusion will persist.
For all of these reasons, I respectfully dissent.
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