Cite as 2022 Ark. App. 445
ARKANSAS COURT OF APPEALS
No. CV-22-600
| JEREMY COOK & RONNIE HEDGE APPELLANTS V. THE MOST WORSHIPFUL GRAND LODGE, FREE AND ACCEPTED MASONS OF THE STATE OF ARKANSAS, AND ITS MASONIC JURISDICTION (GRAND LODGE); CARL E. NELSON; ROBERT L. JACKSON; BOYD FREEMAN; SAMUEL D. LATTIN; GEORGE K. COFFMAN; ARNOLD G. HODGE; CHARLES H. FERGUSON; Martin E. Warren; billy joe holder; bradley r. phillips; george r. franks, jr.; and chris young, all in their official capacities as office holders and members of the grand lodge and in their individual capacities; and john does 1–25 APPELLEES |
Opinion Delivered November 2, 2022 APPELLANTS’ MOTION FOR CERTIORARI TO COMPLETE THE RECORD; APPELLEES’ MOTION TO DISMISS APPEAL PULASKI COUNTY CIRCUIT COURT, FIFTH DIVISION [NO. 60CV-19-605] HONORABLE WENDELL GRIFFEN, JUDGE dISSENTING OPINION ON DENIAL OF MOTION FOR CERTIORARI TO COMPLETE THE RECORD AND GRANT OF MOTION TO DISMISS APPEAL
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stephanie potter barrett, Judge
This court denied the appellants’ motion for writ of certiorari to complete the record in this case and dismissed the appeal pursuant to Coggins v. Coggins, 353 Ark. 431, 108 S.W.3d 588 (2003). I must respectfully dissent from this decision for the following reasons.
The order dismissing appellants’ claims was filed on May 26, 2022. Appellants filed a notice of appeal on June 24, 2022. A record of the pleadings, consisting of 815 pages, was filed on September 22, 2022, which was the ninetieth day after the filing of the first and only notice of appeal. However, the transcript of the only hearing in the case was not included because Judge Wendell Griffen’s court reporter, Neva Warford, did not prepare it, even though arrangements were made for her to do so. Other than a reply on June 24, 2022, to counsel’s request for the transcript to be prepared and to make arrangements for payment, to which Warford stated that “it was a short hearing that should cost $115 at the most and that she would collect her fee after she completed the transcript,” she failed to respond to correspondence regarding counsel’s inquiries on August 24 and September 16 as to the status of the transcript.
Instead of filing a request for extension of time with the circuit court, see Ark. R. App. P.–Civ. 5, appellants filed this motion for certiorari to complete the record with our court on September 22, again, on the last day available under Rule 5 to file the record without receiving an extension. Appellees filed a motion to dismiss the appeal citing Coggins, supra, in which our supreme court denied a writ of certiorari because the appellant had failed to show that he was unable to obtain entry of an order from the circuit court to further extend the time to file the record. The present case is distinguishable from Coggins and does not mandate that the appeal be dismissed.
Rule 5(b)(1) of the Arkansas Rules of Appellate Procedure–Civil provides:
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 or for the circuit clerk to compile the record.
Seven months from the date of the filing of the first notice of appeal is the maximum amount of time that a circuit court can allow a court reporter to prepare a properly requested transcript. Ark. R. App. P.–Civ. 5(b)(2). If the appellant has received the maximum seven-month extension or “demonstrates (by affidavit or otherwise) an inability to obtain entry of an order of extension, then before the expiration of the period prescribed by subdivision (a) of this rule or a prior extension order, the appellant may file with the clerk of the supreme court a petition for writ of certiorari. . . .” Ark. R. App. P.–Civ. 5(b)(3).
In Coggins, the supreme court denied the motion for writ of certiorari, holding that appellant had not shown that he was unable to obtain entry of an order from the circuit court to extend the time to file the record, nor had he shown that the delay in obtaining the record from the court reporter was necessary. The supreme court noted that the appellant had not lodged the pleadings and other filings in his partial record, but securing those documents was not the court reporter’s responsibility. Here, unlike the situation in Coggins, the appellants filed 815 pages of record pleadings—the only item missing was the stenographically reported material from a hearing that, by the court reporter’s own words, was “short.” Appellants had attempted to secure the hearing transcript to no avail, and they state that it would be impossible for them to make a showing under Arkansas Rule of Appellate Procedure–Civil 5(b)(1)(E) that an extension of time was necessary because there was no good-faith basis for such contention. The court reporter stated that it was a “short” hearing, and she never stated that she would need more time to prepare the transcript of the short hearing. An appellant cannot show that an extension of time is necessary when there is no indication that the court reporter needs more time but rather simply refuses to do her job.
As Justice Brown eloquently stated in his Coggins dissent:
To summarize, the majority interprets Rule 5 to allow this court to extend the time for filing the record by writ of certiorari only after seven months has expired from the date the notice of appeal was filed. Before the seven months has expired, according to the majority, only the circuit court can extend the time for filing the record. Nothing in Rule 5 imposes such a limitation. My interpretation is that an appellant may file a partial record and petition this court for a writ of certiorari within ninety days of the notice of appeal or any extended period for completion of the record, when the appellant is unable to obtain an extension from the circuit court. The appellant followed this procedure to a “T,” by coming to this court on the last day of his extended period. I would not dismiss this appeal.
353 Ark. at 437, 108 S.W.3d at 592 (Brown, J., dissenting) (citations omitted).
I agree with Justice Brown’s conclusion that Rule 5 does not mandate dismissal of this case. Therefore, I dissent from the denial of the writ of certiorari and the dismissal of appellants’ appeal.
Virden and Hixson, JJ., join.