Bayird v. Floyd
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SUPREME COURT OF ARKANSAS
No.
08-1099
JOHN
H.
BAYIRD,
AS
ADMINISTRATOR FOR THE ESTATE
OF MAMIE ELLIOTT, DECEASED,
APPELLANT,
VS.
Opinion Delivered MAY 1, 2009
APPEAL FROM THE DREW COUNTY
CIRCUIT COURT,
NO. CV-2007-0062-4,
HON. DON EDWARD GLOVER,
JUDGE,
WILLIAM FLOYD,
APPELLEE,
REBRIEFING ORDERED.
PER CURIAM
Appellant John H. Bayird, as Administrator for the Estate of Mamie Elliott, Deceased,
appeals the order of the Drew County Circuit Court dismissing his complaint against Appellee
William Floyd. In its order entered of record on July 29, 2008, the circuit court dismissed
Floyd from the action, stating:
Upon considering as true the allegations contained in the complaint and
amended complaints and all other pleadings and exhibits submitted herein, the Court
finds insufficient facts to support a claim for which relief can be granted against
separate defendant, William Floyd. Therefore the Motion to Dismiss should
be granted pursuant to Ark. R. Civ. P. 12(b)(6). [Emphasis added.]
Although the circuit court stated that the case was dismissed pursuant to Rule 12(b)(6),
the order reflects that the court considered other pleadings and exhibits in making its ruling.
As such, the motion to dismiss was converted to a motion for summary judgment. As this
court has explained:
When a trial court considers matters outside the pleadings, the appellate courts
will treat a motion to dismiss as one for summary judgment. Kyzar v. City of
West Memphis, 360 Ark. 454, 201 S.W.3d 923 (2005). A motion to dismiss is
converted to a motion for summary judgment when matters outside of the
pleadings are presented to and not excluded by the court. Nielsen v.
Berger-Nielsen, 347 Ark. 996, 69 S.W.3d 414 (2002).
Robbins v. Johnson, 367 Ark. 506, 510, 241 S.W.3d 747, 750 (2006) (quoting T.J. ex rel.
Johnson v. Hargrove, 362 Ark. 649, 654, 210 S.W.3d 79, 81-82 (2005)). Just, as in Robbins, the
circuit court’s order of dismissal in the present case was actually an order of summary
judgment.
The record now before us is replete with pleadings filed with, and presumably
considered by, the circuit court including, but not limited to, answers to the complaint and
amended complaints, motions to dismiss,1 and responses and replies to Floyd’s motions to
dismiss. The addendum submitted by Bayird lacks these and perhaps other relevant pleadings
that are essential to our understanding of this case. 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
1
Floyd has included a supplemental addendum that includes the complaints and amended complaints, as well
as the original motion to dismiss but not the subsequent motions to dismiss. It is not necessary for Bayird to reproduce
those pleadings that Appellee has provided in its supplemental addendum.
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08-1099
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.
Accordingly, under Rule 4-2(b)(3), we order Bayird to file a substituted addendum and
brief that includes the omitted pleadings and exhibits within fifteen days from the date of
entry of this order. If Bayird 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
addendum and brief, Floyd shall have an opportunity to revise or supplement its addendum
in the time prescribed by the court.
Rebriefing ordered.
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08-1099
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