*1
full-time
defender with
a full-time state-salaried
public
secretary
is thus
to receive
work. See
ineligible
compensation
appellate
Dickerson
Since our has motion behalf of Joplin Beland, that Beland be relieved as counsel on asking The motion reflects that Beland left the defender’s office as public of December his election as Fort Smith following District We the motion and Judge. Brent Stan appoint J. in this case. clerk dridge represent Our is directed to Appellant aset new schedule for this briefing
It is so ordered. PLUMBING,
SERVEWELL LLC v. INC., CONTRACTORS, SUMMIT The Gables of Maumelle Limited Partnership 04-1306 Court of Arkansas 3, 2005 delivered
Opinion February *2 Rubens, for Kent and Lawrence WayneJackson, appellant. Jay Lancaster, for Reese Stephen appellees. LLC, moves Servewell Plumbing, Curiam. Appellant
Per that the clerk a rule on clerk. Servewell states the court for to file the record in this matter on of this court refused erroneously it as tendered. Servewell’s motion sets November and noted of events: forth the following sequence (cid:127) all of Servewell’s ex- dismissing Order entered 12.31.03 for enrichment its claim The Gables against unjust
cept (cid:127) 01.30.04 Servewell filed notice (cid:127) entire dismissing complaint, 05.11.04 Order entered claim
including unjust-enrichment (cid:127) both the 05.11.04 05.19.04 Servewell 12.31.03 orders (cid:127) entered the time to lodge 07.30.04 Order extending (cid:127) tender of a 11.24.04 Servewell’s Clerk
Court (cid:127) 2.08.04 Full record tendered Servewell contends that its second notice of was eight final, It filed. appealable asserts entitled to a rule on clerk and granting that the record be filed. There is no directing response *3 appellees. Rule of
Arkansas
Procedure-Civil
5(a) pro
vides that
record on
shall be filed
this
with
court’s clerk
within
from the
of “the first
ninety
appeal,”
unless the time is extended
an order of the circuit court. See
by
however,
P.-Civ.
5(a) (2004).
5(a),
contem
a notice of
from
or
plates
order. SeeArk. R.
zfinal
A review of the
2(a)(1) (2004).
record in the instant
case reveals that while Servewell filed a notice of
circuit court’s order of December
that order was not
order,
final
because
claim was still
unjust-enrichment
pending,
and the order contained no certification
to Arkansas Rule
pursuant
Thus,
of Civil Procedure 54(b).
from that order was
any appeal
See,
Lee,
dismissal
this court.
subject
v.
by
Ark.
e.g., Dodge
480, 88
Crow,
S.W.3d 843 (2002);
Chems.,
Tri-State Delta
Inc. v.
255,
347 Ark.
Servewell petitions received an extension of the record. It asserts that has already until from the date of the seven months in which to file its record December 24, 2004, it and filed that November obtained Servewell states date, not and that to still ready.1 record transcript that has unable to further states he been Counsel and, there- obtain information the status regarding fore, seeks writ certiorarito court complete reporter record within thirty days. Russell, she called Sheila court reporter, responds 29, 2004, to him that counsel on November inform until She avers that she had December transcript ready. and that to have the record receiving prepared prior December she had no of the instant prior copy petition or other action. She states any
knowledge petition that the record was when she contacted counsel to inform him *4 he her that he would it “on informed ready, pick up [December] that she has not tried to hide 7th or she Finally, responds 8th[.]” from him in from counsel and has had no communication several as months. She that the be dismissed premature prays petition moot. case that the
A review of the docket this reveals Clerk, Court two-volume record was tendered to Supreme on the for rule on this court’s decision above motion pending clerk, 8, tendered on December 2004. Because record has been for certiorarito in its we add that the instant petition entirety, the record is moot. complete court to
Servewell has further moved this supplement the instant counsel states that the record in case. Servewell’s 30,2004. was tendered November instant petition record, 8, 2004, which on December two was tendered lacking are, or exhibits which were to the circuit court and proffered may- be, essential to a full of the issues on (1) understanding appeal: letter from to the circuit clerk and Servewell’s counsel (2) copy court bond. Servewell that the payment requests permit be record to There is no from the supplemented. response appel- lees. We the motion to the record. supplement
We direct the Court to file the Clerk to case and set a schedule. Motion for rule clerk briefing Petition for writ of certiorari record moot. granted. complete Motion to supplement granted.
Imber, J., concurs. Imber,
nabelle I Clinton concur Justice, concurring. majority with the that the motion for rule on the clerk However, should be I write granted. because I with the disagree - of ArkansasRules of majority’s Procedure interpretation Civil 5(a) (2004). 31, 2003, On December an order was entered all of dismissing
Servewell’s
its claim
The Gables for
except
against
unjust
enrichment. On
filed its first notice of
the order
from as the
designated
December 31
appealed
order. On
an
order was entered
dismissing
entire
complaint, including
unjust-enrichment claim. Servewell
19,
filed second
appeal May
designated
orders
from as the December 31 and
appealed
11 orders. The
Miay
circuit court entered an
the time
July
extending
Meanwhile,
the record.
lodge
Servewell waited until November
2004, to tender a
record to our clerk.
Arkansas Rule of
Procedure-Civil
5(a) clearly
that the record on
be
provides
shall
filed with
the court’s
clerk “within 90
first
unless the time is extended
an order of
the circuit court.” See
Yet,
P.—Civ.
5(a) (2004) (emphasis added).
because
be
taken from final
appeal may
pursuant
2(a)(1) (2004),
majority summarily jumps
conclusion that
Pmle
contemplates
a valid and effective “first” notice of
In so
doing,
changes
in the rule
the word
by inserting
“effective.”
Under the
*5
Rule
plain language
the
Appellate
90-day
limit for
the record
to
filing
run
the
the
of
“first
begins
upon
filing
order,
notice of
from
whether
final
appeal”
or not. For
any
of
case,
“first
on
filed its
notice
in this
Servewell
appeal”
example,
Thus,
would have
the
to file the record
2004.
deadline
January
date,
circuit court had not yet
As of that
the
2004.
been April
the
on or before
a
If Servewell had filed
record
final order.
entered
its
for lack of a
have dismissed
we would
appeal
April
however,
the
90-day period expired
final order.
Thus,
its
to file
a
filed.
lost
right
without
being
to
an
based on the
the record and thereby
perfect
appeal
attempt
entered
order was
30 notice of
A final
subsequently
January
appeal.
with the
that a new
began
such
May
90-day period
of
of a “first notice of
entry
filing
appeal”
of
Rule 5 conforms
final order. This
the
interpretation
is
a final
an
dismissed for lack of
with our
when
practice
appeal
a
order
of
final
order.
the circuit court’s
entry
Upon
subsequent
order,
from
an
the
ofa
notice of
and
timely
filing
from final
which
be taken
the
brings up any
may
the merits
intermediate order involving
necessarily affecting
2(b), 3(a) (2004).
the
SeeArk.
judgment.
of
would have been different
this matter
disposition
the
of
if
final order had
under
Rule
plain language Appellate
been entered
the
if Servewell
during
original 90-day period
notice
from that order. In
had
of
situation,
could
have been
order
the
the record within 90
from
filing
by filing
preserved
words,
other
a final
notice of
30. In
when
“first
appeal”
is
the
entered within
original 90-day period,
subsequent
amends the “first notice of
Pursuant
notice
appeal.”
appeal only
5, the
to
Rule
run
begins
90-day period
upon
and,
not as the
of the first notice
majority posits,
filing
Under the
of the first “effective” notice of
filing
appeal.
upon
of a final
notwithstanding
majority’s interpretation,
notice of
within the first
second
filing
commence
a second
would
upon
90-day period,
90-day period
second notice
will
To
5 as the
Rule
majority suggests
apply Appellate
whether a
our clerk
first
determining
engage
require
effective,
is
the door to numerous motions
or will open
appeal
for rule on
that we make such determina-
clerk requesting
and is
Such a
burdensome
contrary
tion.
unnecessarily
process
5. That rule
establishes
plain
clear,
deadline
in time for
calculating
objective starting point
—
Once
first
to file
*6
Rule
the
5 changes
again,
majority’s interpretation
Appellate
the word “effective.”
the
the rule
inserting
language
by
Moreover,
I submit that we should endeavor to maintain
State,
modicum of
with our
decisions
Smith v.
consistency
prior
v.
curiam)
351 Ark.
Street
(2002) (per
Kurzinski,
In
290 Ark.
Smith v.
S.W.2d
tice-of-
we
construed
Rule 5’s first-no
supra,
strictly
rule when
Ark. R.
situation
by
appeal
considering
governed
P.—Crim.
that
In
motion
2(b)(2) (2004).
posttrial
App.
and the first notice of
were filed on the same
Pursuant
day.
in Ark. R.
P.-Crim.
express
2(b)(2) (2004),
App.
we held that the first notice of
was not made effective until
after the
motion
denied.
v.
in Street
day
posttrial
Similarly
Kurzinski, we
stated
reference to the ‘first’ notice of
“[t]he
removes
when
doubt
both
file notices of
any possible
parties
when
or
one
files notices of
from different
party
sum,
orders.”