Opinion
No. CA12-262
11-07-2012
JANIE EVINS APPELLANT v. DARLENE CARVIN APPELLEE
Janie M. Evins, pro se appellant. Niswanger Law Firm, PLC, by:
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT, THIRD
DIVISION
[No. CV2011-1785]
HONORABLE JAY MOODY, JUDGE
REMANDED TO SUPPLEMENT
RECORD; REBRIEFING ORDERED
LARRY D. VAUGHT , Chief Judge
Appellant Janie Evins appeals the judgment entered by the Pulaski County Circuit Court on December 14, 2011. The judgment (1) denied her renewed motion to dismiss the complaint of appellee Darlene Carvin based on Arkansas Rule of Civil Procedure 41(b); (2) found that Evins breached the settlement agreement executed between the parties; (3) ordered Evins to pay damages to Carvin in the amount of $166,231.31; and (4) dismissed Evins's counterclaim for offsets and credits. On appeal, Evins argues that the trial court erred in denying her Rule 41(b) motion to dismiss. Alternatively, she argues that the trial court erred in dismissing her counterclaim. We are unable to reach the merits of Evins's appeal because the record and abstract are deficient.
In 1997, Evins borrowed $142,000 from Carvin to purchase real property located at 809 West Grand in Garland County, Arkansas. Evins made some payments to Carvin, but no note or mortgage was filed because the parties were unable to agree on the terms of the loan. On January 16, 2002, the parties entered into a settlement agreement, wherein Evins acknowledged the debt owed to Carvin and agreed to make monthly payments. The agreement also contained other requirements to be fulfilled by Evins in exchange for Carvin's consent to withhold litigation.
On June 19, 2007, Carvin filed a complaint in the Garland County Circuit Court (first complaint), seeking to enforce the settlement agreement, alleging that Evins breached the agreement. The first complaint was dismissed without prejudice on August 25, 2008, based on Carvin's failure to prosecute the case.
On August 25, 2009, Carvin filed a second complaint in the Garland County Circuit Court (second complaint), restating the allegations made in the first complaint. Carvin again sought enforcement of the settlement agreement and requested damages for Evins's breach of the agreement. This complaint was dismissed without prejudice by order of the trial court on October 4, 2010, based on Carvin's failure to timely file a pretrial brief.
Carvin filed a third complaint on April 12, 2011, in the Pulaski County Circuit Court (third complaint), restating the allegations made in the prior two complaints. Again, Carvin sought enforcement of the settlement agreement and requested damages for Evins's alleged breach. In response, Evins filed a motion to dismiss, arguing that Carvin's cause was barred because the Garland County Circuit Court's dismissal of the second complaint operated as an adjudication on the merits pursuant to Rule 41(b) of the Arkansas Rules of Civil Procedure. The Pulaski County Circuit Court, on July 28, 2011, entered an order denying Evins's motion to dismiss:
Upon consideration of the Motion to Dismiss made by . . . Evins . . ., the response thereto by . . . Carvin . . . , and the arguments . . . at the hearing on July 25, 2011, the Court finds that, for the reasons stated from the bench, [Evins's] Motion to Dismiss shall be, and is hereby, denied. [Evins's] answer shall be filed within ten (10) days from the entry of this Order.
As ordered, Evins filed an answer and counterclaim, and the case proceeded to a bench trial on December 6, 2011. On the morning of trial, Evins renewed her motion to dismiss, which the trial court denied from the bench. At the conclusion of the evidence, the trial court found that Evins had breached the settlement agreement, awarded Carvin $166,231.31, and denied Evins's counterclaim. The trial court entered a judgment on December 14, 2011, detailing these findings and adding that Evins's renewed motion to dismiss was denied. It is from this judgment that Evins appeals.
Evins's first point on appeal is that the trial court erred in denying her Rule 41(b) motion to dismiss. Before reaching Evins's first point, we must first confirm whether we have jurisdiction based on Evins's notice of appeal. Arkansas Court Rule of Appellate Procedure-Civil 3(e) (2012) provides:
(e) Content of notice of appeal or cross-appeal. A notice of appeal or cross-appeal shall:Evins's notice of appeal states:
(i) specify the party or parties taking the appeal;
(ii) designate the judgment, decree, order or part thereof appealed from;
(iii) designate the contents of the record on appeal;
(iv) state that the appellant has ordered the transcript, or specific portions thereof, if oral testimony or proceedings are designated, and has made any financial arrangements required by the court reporter pursuant to Ark. Code Ann. § 16-13-510(c);
(v) state whether the appeal is to the Court of Appeals or to the Supreme Court; . . . and
(vi) state that the appealing party abandons any pending but unresolved claim.
Comes now the Defendant, Janie Evins, and appeals the Judgment entered herein on December 14, 2011 by the Honorable Jay Moody, Circuit Judge for the Sixth Circuit. The appellant has ordered the transcript and has made any financial arrangements required by the court reporter pursuant to Ark. Code Ann. 16-13-510(c). This appeal is to the Court of Appeals of the State of Arkansas.Clearly, Evins's notice of appeal fails to designate the contents of the record on appeal. Therefore, we must determine whether this defect is fatal, depriving our court of jurisdiction.
While the filing of a notice of appeal is jurisdictional, our appellate courts have required only substantial compliance with the procedural steps set forth in Rule 3(e). Helton v. Jacobs, 346 Ark. 344, 57 S.W.3d 180 (2001) (holding that the failure to include financial arrangements in the language of a notice of appeal no longer renders that notice invalid); Rogers v. Tudor Ins. Co., 325 Ark. 226, 925 S.W.2d 395 (1996) (holding that substantial compliance of Rule 3(e) is required, provided the appellee has not been prejudiced by the failure to strictly comply with the rule); Jennings v. Architectural Prods., Inc., 2010 Ark. App. 413, 375 S.W.3d 685 (holding that a notice of appeal that failed to designate the record, did not contain a statement of financial arrangements, did not designate which court was being appealed to, and stated the incorrect date of the judgment was not fatally defective because it was timely filed and substantially complied with the rule).
In the case at bar, Evins's notice of appeal specified the party taking the appeal, designated the judgment from which she appealed, stated that she ordered the transcript (of the trial), stated that she made financial arrangements with the court reporter, and stated that the appeal was to this court. Further, she timely filed the notice, and she actually ordered the transcript of the trial, made financial arrangements with the court reporter, and filed the appeal with our court. We hold that these facts constitute substantial compliance with Rule 3(e) and that Evins's failure to strictly comply did not prejudice Carvin. Therefore, Evins's notice of appeal is not fatally deficient, and we have jurisdiction to hear her appeal.
While the defective notice of appeal does not deprive our court of jurisdiction, it did fail to put the court reporter on notice to transcribe the July 28, 2011 motion-to-dismiss hearing. Thus, it is not in the record. For this reason, we are unable to reach the merits of Evins's first point on appeal—that the trial court erred in denying her motion to dismiss. Arkansas Supreme Court Administrative Order No. 4 provides that, "[u]nless waived on the record by the parties, it shall be the duty of the circuit court to require that a verbatim record be made of all proceedings . . . pertaining to any contested matter before the court or the jury." Ark. Sup. Ct. Admin. Order No. 4(a) (2012). See McAlister v. Dir., Dep't of Workforce Servs., 2012 Ark. App. 511, at 2 (remanding to supplement the record where a pertinent hearing transcript was not included in record on appeal). Accordingly, we remand the case to the trial court to settle and supplement the record. Evins has thirty days from today to do so.
We further note that because the July 28, 2011 motion-to-dismiss hearing was not transcribed and included in the record, Evins did not abstract it. Arkansas Supreme Court Rule 4-2(a)(5) (2012) requires an appellant to submit a brief including an abstract of the material parts of all the transcripts in the record. Information in a transcript is material if the information is essential for the reviewing court to confirm its jurisdiction, understand the case, and decide the issues on appeal. Id. When an appellant submits a brief with an insufficient abstract such that the court cannot reach the merits of the case, the appellant will be afforded an opportunity to cure the deficiencies. Ark. Sup. Ct. R. 4-2(b)(3) (2012).
The transcript of the motion-to-dismiss hearing is material, and Evins is required to abstract it. Therefore, we order Evins, within fifteen days of filing the supplemental record on appeal, to file a substituted brief, abstract, and addendum. Id. After service of the substituted brief, Carvin will have the opportunity to file a responsive brief, or she may choose to rely on the brief previously filed in this appeal. In the event that Evins fails to file a complying brief within the prescribed time period, the judgment may be affirmed for noncompliance with the rule. Id. Finally, Evins, who is representing herself on appeal, is strongly encouraged to review Rule 4-2 in its entirety as it relates to the abstract and addendum, as well as the entire record, to ensure that there are no additional deficiencies.
Remanded to supplement record; rebriefing ordered.
WYNNE and BROWN, JJ., agree.
Janie M. Evins, pro se appellant.
Niswanger Law Firm, PLC, by: Stephen B. Niswanger and A. Cale Block, for appellee.