Opinion
CLAIM NO. E907825
OPINION FILED APRIL 12, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE HENRY BOYCE, Attorney at Law, Newport, Arkansas.
Respondents represented by HONORABLE JOHN D. DAVIS, Attorney at Law, Little Rock, Arkansas.
ORDER
This matter comes on for review before the Commission on respondents' motion to dismiss claimant's appeal to the Arkansas Court of Appeals. Respondents assert that claimant has failed to file the record within 90 days of her notice of appeal, as required by Ark. R. App. P. 5(a).
After our consideration of respondents' motion, claimant's failure to respond thereto, and all other matters properly before the Commission, we find that respondents' motion should be denied.
We do not have the authority to dismiss an appeal to the Arkansas Court of Appeals under these circumstances. In Mitchell v. City of Mountain View, 304 Ark. 585, 803 S.W.2d 556 (1991), the Arkansas Supreme Court, on essentially the same facts as the instant case, stated that:
The City of Mountain View (City) has moved to dismiss the appeal of Albert and Ruby Mitchell because the time for filing the record on appeal has expired. Notice of appeal was filed on September 19, 1990, and the Mitchells have neither filed the record with the Clerk nor responded to the motion to dismiss the appeal.
Ark. R. App. P. 5(a) provides that, "[t]he record on appeal shall be filed with the clerk of the Arkansas Supreme Court and docketed therein within 90 days from the filing of the first notice of appeal, unless the time is extended by order of the trial court as hereinafter provided. . ." The Mitchells have not filed a request for an extension in which to file the record and none has been granted. Consequently, the Mitchells are procedurally precluded from pursuing their appeal, and the City's motion to dismiss the appeal must be granted.
This procedure is unusual in that no appeal is pending in this court and were the Mitchells to attempt to perfect an appeal the record would be refused by the Clerk as untimely. However, since the trial court has no power to dismiss an appeal [except as provided in Ark. R. App. P. 3(b)], Johnson v. Carpenter, 290 Ark. 255, 718 S.W.2d 434 (1986), there is some uncertainty as to how a stale appeal may be dismissed. We think the procedure followed by the City in this case is proper, that is, if the time for appeal has expired and the prevailing party prefers to formalize that fact without waiting for seven months to elapse, such party may file with the Clerk a partial record and move for a dismissal. Where the partial record demonstrates that the appeal is barred that motion will be granted.
As set out above, a motion by one party to dismiss the other party's stale appeal must be made before the higher court wherein the appeal itself properly lies. We are thus unable to grant respondents' motion, and the same should therefore be, and hereby is, denied.
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
______________________________ MIKE WILSON, Commissioner
______________________________ SHELBY W. TURNER, Commissioner