Cite as 2010 Ark. 323 SUPREME COURT OF ARKANSAS No. 10-146 CHARLES LAWRENCE, Opinion Delivered September 9, 2010 APPELLANT, VS. CITY OF TEXARKANA and TEXARKANA FIRE DEPARTMENT, REBRIEFING ORDERED. APPELLEES, PER CURIAM Appellant Charles Lawrence is a former employee of the Texarkana Fire Department. On November 7, 2003, Texarkana Fire Chief Bobby Honea terminated Lawrence’s employment with the Fire Department. Lawrence appealed Honea’s decision to the Texarkana Civil Service Commission, which upheld the firing. Lawrence then pursued an appeal to the Miller County Circuit Court, which affirmed the decision of the Civil Service Commission. From the circuit court’s order, Lawrence brought an appeal to this court. Our court dismissed his appeal, however, due to the lack of factual findings from the Civil Service Commission. Lawrence v. City of Texarkana, 364 Ark. 466, 221 S.W.3d 370 (2006). Following this court’s opinion, the Texarkana Civil Service Commission issued an “Order Upon Trial” on February 13, 2006 in which it made findings of fact and conclusions of law, concluding that Honea was justified in terminating Lawrence. Lawrence again appealed the Commission to the Miller County Circuit Court. The circuit court held a
Cite as 2010 Ark. 323 hearing on January 3, 2008, and ultimately issued a letter opinion on December 2, 2009. The letter opinion was reduced to an order entered on December 31, 2009, and Lawrence filed a timely notice of appeal on January 15, 2010. We are unable to reach the merits of Lawrence’s appeal at this time, however, because his brief does not comply with Arkansas Supreme Court Rule 4-2(a)(8) (2010). Rule 4-2(a)(8)(A)(i) provides, in pertinent part, that a party’s addendum must include “ all motions (including posttrial and postjudgment motions), responses, replies, exhibits, and related briefs, concerning the order, judgment, or ruling challenged on appeal,” as well as “any other pleading or document in the record that is essential for the appellate court to confirm its jurisdiction, to understand the case, and to decide the issues on appeal.” In addition, Rule 4-2(a)(5) requires an appellant to “create an abstract of the material parts of all the transcripts in the record.” Rule 4-2(a)(5)(A) further provides that “material information may be found in, for example, counsel’s statements and arguments, . . . colloquies between the court and counsel, and rulings. All material parts of all hearing transcripts [and] trial transcripts must be abstracted[.]” As part of the Miller County Circuit Court’s de novo review of the Civil Service Commission’s decision, that court held a hearing at which it took testimony and heard arguments of counsel. At the conclusion of that hearing, the court asked both parties to “do a little research on that last issue because that could be crucial to the decision of this case, whether or not there is some provision that would allow the Civil Service Commission to -2-
Cite as 2010 Ark. 323 promulgate the rules and regulations without the approval of the City Board.” The parties submitted post-trial briefs to the circuit court on this issue; while these briefs are contained in the record, they are not included in either the addendum or supplemental addendum. In addition, while the abstract and the supplemental abstract contain pertinent portions of the witnesses’ testimony, neither reflects the arguments that were made by counsel before the circuit court. This court has ordered rebriefing where the addendum failed to include briefs requested by the trial court. For example, in State v. Brown, 375 Ark. 479, 481, 291 S.W.3d 560, 561 (2009), this court stated that [t]he record reveals that at the conclusion of the hearing on Brown’s Rule 37 petition, the circuit court requested that the parties submit posthearing briefs in lieu of oral arguments. The posthearing briefs appear in the record but do not appear in the State’s addendum. Because the State has failed to comply with our rules, we order it to file a substituted abstract, addendum, and brief within fifteen days from the date of entry of this order. (Emphasis added). See also Anderson v. BNSF Ry. Co., 375 Ark. 65, 289 S.W.3d 52 (2008) (rebriefing ordered where the appellants failed to abstract arguments made before the trial court concerning the federal preemption issue that was raised on appeal and also failed to include in the addendum “relevant material, including requests for a hearing before the Commission, notice of hearings, BNSF’s petition for review filed in the circuit court, and the parties’ briefs filed in the circuit court”) (emphasis added). In Bryan v. City of Cotter, 2009 Ark. 172, 303 S.W.3d 64, a case in which the circuit court granted the appellees’ motion for summary judgment, we demanded rebriefing where -3-
Cite as 2010 Ark. 323 the appellant failed to include in the addendum “any of the motions leading to the orders of dismissal, as well as the responses and replies thereto and the briefs in support thereof.” 2009 Ark. 172, 2, 303 S.W.3d at 65. There, the court noted that it was not only a question of whether the arguments made on appeal had been raised and addressed below—i.e., whether the arguments on appeal were preserved—but also whether this court could “make an informed decision on the merits of an appeal in the absence of the pleadings and motions on which the trial court based its decision,” because “an order of a circuit court cannot be reviewed for error when the addendum fails to include the documents on which the order was based.” Id. at 4, 303 S.W.3d at 66–67. Accordingly, we order rebriefing in this matter and direct Lawrence to file a substituted abstract, addendum, and brief within fifteen days from the date of entry of this order. The substituted abstract should include, at a minimum, an abstract of the parties’ arguments before the circuit court (in ad dition to the testimony heard before the Civil Service Commission and circuit court); similarly, the substituted addendum should contain any pre-or post-trial briefs submitted to the Commission or the circuit court. We consider our foregoing identification of essential and missing items to in no way be an exclusive or exhaustive list, and therefore strongly encourage appellate counsel, prior to filing the substituted brief, abstract, and addendum to review our rules as well as the substituted addendum and brief to ensure that no additional deficiencies are p resent. See, e.g., Roberts v. Roberts, 2009 Ark. 306, 319 S.W.3d 234 (per curiam). If Lawrence fails to do so within the prescribed time, the -4-
Cite as 2010 Ark. 323 order appealed from may be affirmed for noncompliance with Rule 4-2. After service of the substituted abstract, addendum, and brief, the appellees shall have an opportunity to revise or supplement their brief in the time prescribed by the clerk. Rebriefing ordered. G UNTER, J., not participating. -5-
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