Geiger v. Hipp Lumber & Hardware
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SUPREME COURT OF ARKANSAS
No.
09-276
ANNA GEIGER, et al,
Opinion Delivered April
9, 2009
APPELLANT,
MOTION FOR RULE ON CLERK
VS.
HIPP LUMBER & HARDWARE, et al,
APPELLEE,
REMANDED.
PER CURIAM
Appellants filed a timely notice of appeal in this case on September 8, 2008, making
the record with the transcript of testimony due to be filed on December 8, 2008. On
November 12, 2008, appellants filed a motion for extension of time to file the transcript
because the court reporter indicated that the transcript would not be prepared by the deadline.
That same day, the circuit court entered an order granting appellants’ motion and extending
the deadline to March 1, 2009.
Appellants attempted to file the transcript on February 24, 2009, but the Arkansas
Supreme Court Clerk refused to accept it. Counsel for appellants was notified that he must
file a motion for rule on clerk because the circuit court’s order did not meet the requirements
for Arkansas Rule of Appellate Procedure—Civil 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 court reporter would be unable to
complete the record and that the extension of time would be 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, ___ S.W.3d ___ (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 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
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09-276
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).
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09-276
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