Kinder v. Kinder

2022 Ark. App. 39

639 S.W.3d 882

David KINDER, Appellant

v.Wendy KINDER, Appellee

No. CV-19-858

Court of Appeals of Arkansas, DIVISIONS III & IV.

Opinion Delivered February 2, 2022

Rehearing Denied March 2, 2022

Rehearing Denied March 9, 2022

Owings Law Firm, Little Rock, by: Steven A. Owings and Tammy B. Gattis, for appellant.

Dover Dixon Horne PLLC, Little Rock, by: Adrienne M. Griffis, for appellee.

BRANDON J. HARRISON, Chief Judge

In February 2021, we remanded this case to the Pulaski County Circuit Court so it could determine whether David Kinder properly moved to extend the deadline to file the record on appeal pursuant to Ark. R. App. P.–Civ. 5(b)(1). Kinder v. Kinder , 2021 Ark. App. 40, 617 S.W.3d 307.

In October 2021, David moved to supplement the record with an order the circuit court entered in July 2021 pursuant to our prior opinion. When David moved this court to supplement the record, he also moved to "recall [the] remand." We granted the motion to supplement; we denied the motion to recall.

In November 2021, Wendy moved to dismiss this appeal; that motion was submitted with this case. Having heard from the circuit court on remand, we now grant Wendy's motion and dismiss the appeal with prejudice due to a Rule 5 violation.

Arkansas Rule of Appellate Procedure–Civil 5(a) states 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 circuit court as hereinafter provided." David filed the first notice of appeal on 11 July 2019. That means he had to file the appeal record with this court's clerk on or before 9 October 2019. The record was filed on 7 November 2019. Consequently, David did not timely perfect his appeal—unless the circuit court properly extended the original ninety-day deadline under Rule 5(b) in the first place. The sole purpose of our prior opinion was to get more information on whether the applicable deadline was properly extended.

Here is the governing rule of appellate procedure, which provides:

(b) Extension of Time.

(1) 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.

Ark. R. App. P.–Civ. 5(b) (second emphasis added).

And here is the July 27 order on remand that the circuit court supplied:

ORDER ON REMAND

On April 16, 2021 the Court held a hearing regarding the issues raised in the February 3, 2021 Court of Appeals Opinion in CV-19-858. The parties appeared through their respective attorneys, Adrienne Griffis and Tammy Gattis, and Cynthia Moody appeared as attorney ad litem on behalf of the minor child. The Court being well advised to all relevant facts and matters of law, orders as follows:

1. That personal and subject matter jurisdiction are appropriate with this Court. Venue is appropriate with this Court.

2. On February 3, 2021, the Arkansas Court of Appeals, in CV-19-858, remanded the appeal of this matter to the Circuit Court to determine if Ark. R. App. P.–Civ 5(b) was complied with regarding October 3, 2019, Motion to Extend Time to Lodge Record on Appeal.

3. The Court hereby finds that the Defendant complied with Ark. R. App. P.–Civ. 5(b)(1)(A), (B), (D), and (E) to properly extend the deadline to file the record on appeal.

4. Regarding Ark. R. App. P.–Civ 5(b)(1)(C), the Court finds that all parties did not have the opportunity to be heard on the motion because Defendant's Motion to Extend Time to Lodge Record on Appeal was filed on October 3, 2019 at 4:15 p.m. and the Order to Extend Time was entered on October 4, 2019 at 9:26 a.m. However, Plaintiff's counsel advised the Court that she would not have objected to the extension of time if she had the opportunity to respond to the motion.

IT IS SO ORDERED.

Wendy's motion to dismiss argues that David failed to strictly comply with subsection (b)(1)(C) of Rule 5 when the original motion to extend was granted. As to that subsection, the circuit court specifically found on remand that "all parties did not have the opportunity to be heard on the motion because Defendant's Motion to Extend Time to Lodge Record on Appeal was filed on October 3, 2019 at 4:15 p.m.^{[1 ]} and the Order to Extend Time was entered on October 4, 2019 at 9:26 a.m." Some twenty-eight hours and fourteen minutes elapsed between the filing of David's motion for an extension of time and the circuit court's order that granted it.

Is twenty-eight hours enough time for a party to respond to a motion to extend the time to file a record? No prior caselaw from this court or the supreme court specifically decides the question. Today, however, we hold that this amount of time does not give the responding party sufficient opportunity to be heard on a Rule 5(b)(1) motion. Consequently, we cannot say that the circuit court erred when it found on remand that Wendy was not given a sufficient opportunity to respond to the motion for an extension before the order was entered. Cf. Ashley v. Ashley , 2016 Ark. 161, 489 S.W.3d 660 ( Ark. R. Civ. P. 6 ’s response-time-calculation method does not apply to Ark. R. App. P.–Civ. 5 ; but ten calendar days was enough time to respond; and no court order had been entered after one day's time).

The sticking points are primarily twofold. First, the circuit court specifically found that Wendy was not given the opportunity to be heard on David's motion. The court plainly said so in paragraph 4 of its remand order. David says that Wendy was notified of the motion when it was filed through the electronic-filing system the morning of October 3, and the court order was not entered until more than one day later. So, David argues, Wendy had an opportunity to respond in writing or at a hearing before the order was entered. We disagree that most practicing attorneys or circuit courts would hold that twenty-eight hours equates to "an opportunity to be heard" in writing on a matter this important and while relying solely on the e-filing system. Nor is this time sufficient to schedule and hold a hearing for purposes of Rule 5.

Wendy does not dispute that she was electronically notified on October 3 that the motion had been filed. Wendy did not file a written response to David's motion, and the circuit court did not hold a hearing (of any sort) before an order was entered. Also, neither David nor Wendy asked the court to reconsider its order after it was entered on October 4. Wendy seems to concede at times that she would not have objected had she had the time to respond. That said, she has clearly moved this court to dismiss the appeal under Rule 5.

The second sticking point is that we are required by our supreme court's strict application and interpretation of Rule 5 to dismiss this appeal. Although the supreme court has replaced its once strict-compliance standard with a substantial-compliance standard in some rules (for example, Ark. R. App. P.–Civ. 3 (notice of appeal) and Ark. R. Civ. P. 4(k) (service of process)), that change has yet to come to Ark. R. App. P.–Civ. 5.

That Rule 5 must be strictly complied with is nothing new. For example, nearly two decades ago, in Rose Care, Inc. v. Jones , 355 Ark. 682, 144 S.W.3d 738 (2004), it was undisputed that Rose Care did not move for extension of time to file the record on appeal or give notice to the appellee before the circuit court entered an order that extended the time to file the record. The appellee moved to dismiss in the supreme court because the circuit court order extending the time to file the record did not strictly comply with Ark. R. App. P.–Civ. 5(b). In response, Rose Care argued that

(1) the extension was "unquestionably necessary" because the court reporter could not complete the transcript; (2) the appellee did not have any grounds for objecting to the extension and did not, even after the fact, object to the court order extending the time to appeal; and (3) the appellee suffered no prejudice from the extension.

Rose Care , 355 Ark. at 686–87, 144 S.W.3d at 740.

The supreme court rejected these arguments and dismissed Rose Care's appeal, stating:

[W]e have made it exceedingly clear to the bench and bar that we expect strict compliance with the requirements of Rule 5(b), and that we do not view the granting of extensions as mere formality.... The arguments offered by Appellant, i.e. , that the reason for the extension was obvious and that Appellee suffered no prejudice, do not justify dispensing with the clear requirements of the rule. Strict compliance is strict compliance.

We thus hold that Appellant failed to strictly comply with the requirements for obtaining an extension of the time to lodge the record on appeal.

Id. at 687, 144 S.W.3d at 740–41 (emphasis added) (citations omitted).

In fact, the supreme court applied a strict-compliance standard and dismissed an appeal under Rule 5 less than two months ago. See Medicanna, LLC v. Ark. Dep't of Fin. & Admin. , 2021 Ark. 227, 2021 WL 5832710 (appeal dismissed for lack of strict compliance with Rule 5 ).

Here, we cannot say that Rule 5 was...