Opinion
No. CA 88-18
Opinion delivered June 1, 1988
APPEAL ERROR — VIOLATION OF ARK. Sup. CT. R. 21 CLERK DIRECTED TO DISCARD BRIEF. — Where the appellant had relied solely on an opinion not designated for publication in his brief and where, even after the appellee's brief quoted from Ark. Sup. Ct. R. 21 and objected to appellant's citation of an unpublished opinion, the appellant cited the same unpublished opinion in his reply brief, the court of appeals directed the clerk of the court to physically discard the appellant's abstract and brief and the appellant's reply brief, and granted the appellant 20 days in which to file new briefs which did not cite or refer to the unpublished opinion, the appellee having 30 days after which to file a supplemental brief and, upon motion, assessment of the cost of printing and attorney's fee for preparation of the supplemental brief against appellant would be considered.
Appellant's brief in violation of Rule 21.
Mobley and Smith, by: William F. Smith, for appellant.
Joe Cambiano, for appellee.
The appellant's brief, filed on February 19, 1988, contains the following statement:
In Southard v. Southard CA-85-300 (opinioned [sic] delivered October 14, 1987, not designated for publication) this court decided this exact issue.
The brief then proceeds to discuss Southard v. Southard and attempts to distinguish it from Layman v. Layman, 292 Ark. 539, 731 S.W.2d 771 (1987), and Southard is the only case decision relied upon to support the point being discussed. The appellee's brief requests that we "disallow" the appellant's argument on this point because it is made in violation of Rule 21(4) of the Rules of the Supreme Court and Court of Appeals, which reads in pertinent part as follows:
Opinions of the Court of Appeals not designated for publication shall not be published in the official reports and shall not be cited, quoted, or referred to by any court or in any argument, brief, or other materials presented to any court (except in continuing or related litigation upon an issue such as res judicata, collateral estoppel, or law of the case).
Despite the fact that the appellee's brief quotes from the above rule and clearly objects to the appellant's citation of an unpublished opinion of this court, the appellant's reply brief again cites the Southard opinion and states that the facts in the case at bar are "clearly in point with the Southard case."
Such manifest disregard of Rule 21 simply cannot be overlooked by this court. We therefore direct the clerk of the court to physically discard the appellant's abstract and brief and the appellant's reply brief, and we grant appellant 20 days from the date of this per curiam in which to file the usual number of new briefs which do not cite or refer to the Southard v. Southard opinion.
After new briefs are filed by the appellant, the appellee shall have 30 days in which to file a supplemental brief and, on motion submitted, cost of printing and attorney's fee for preparing the appellee's supplemental brief, to be assessed against appellant, will be considered.