Wyre v. Wyre
Annotate this Case
Download PDF
SUPREME COURT OF ARKANSAS
No.
09-371
JAMES O. WYRE, II,
Opinion Delivered
APPELLANT,
April 30, 2009
MOTION FOR RULE ON CLERK
VS.
CARRIE WYRE,
APPELLEE,
REMANDED.
PER CURIAM
Appellant James O. Wyre, II, has filed a pro se motion for rule on the clerk to file his
record and have his appeal docketed. On October 8, 2008, Mr. Wyre filed a timely notice
of appeal. On December 9, 2008, Mr. Wyre filed a motion for extension of time to file the
record because the court reporter indicated that the transcript would not be prepared by the
90 day deadline. On December 18, 2008, the circuit court entered an order granting the
motion and extending the deadline.
The record was tendered by Mr. Wyre on April 7, 2009. However, he was notified
by the Arkansas Supreme Court Clerk that the order granting extension did not comply with
the language of Ark. R. App. P. – Civ. 5(b)(1), which provides:
(1) If any party has designated stenographically reported material for inclusion in the
record on appeal, the circuit court, by order entered before expiration of the period
prescribed by subdivision (a) of this rule or a prior extension order, may extend the
time for filing the record only if it makes the following findings:
(A) The appellant has filed a motion explaining the reasons for the requested extension
and served the motion on all counsel of record;
(B) The time to file the record on appeal has not yet expired;
(C) All parties have had the opportunity to be heard on the motion, either at a hearing
or by responding in writing;
(D) The appellant, in compliance with Rule 6(b), has timely ordered the
stenographically reported material from the court reporter and made any financial
arrangements required for its preparation; and
(E) An extension of time is necessary for the court reporter to include the
stenographically reported material in the record on appeal.
In this case, the court's order states only that the maximum seven (7) month extension
was granted; it contains none of the other findings required by Rule 5(b). This court has held
that we expect strict compliance with the requirements of Rule 5(b) and that we do not view
the granting of an extension as a mere formality. See Charles R. Griffith Farms, Inc. v. Grauman,
373 Ark. 410, ___ S.W.3d ___ (2008) (per curiam); Lancaster v. Carter, 372 Ark. 181, 271
S.W.3d 522 (2008) (per curiam). Where an order fails to comply with Rule 5(b), we may
remand the matter to the circuit court for compliance with the rule. See Grauman, supra.
Upon a remand for compliance with Rule 5(b)(1), the circuit court shall determine
whether the rule was complied with at the time the original motion for extension of time was
2
filed and granted. Id. The circuit court should not permit the parties the opportunity to
correct any deficiencies, but instead should make the findings required by the rule as if they
were being made at the time of the original motion. Id. Should the requirements not have
been met at the time of the initial motion for extension and order, the circuit court's order
upon remand should so reflect and be returned to this court. Id.
Because the order of extension in this case makes no reference to each of the findings
of the circuit court required by the rule, and because there must be strict compliance with the
rule, we remand the matter to the circuit court for compliance with Rule 5(b)(1).
3
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
