Cite as 2016 Ark. App. 167
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-15-764
ALBERT LEROY COOTS Opinion Delivered: March 9, 2016
CAROLYN SUE COOTS
APPELLANTS APPEAL FROM THE BENTON
COUNTY CIRCUIT COURT
V. [NO.CV-14-1527-5]
ALEJANDRO BANDERA HONORABLE XOLLIE DUNCAN,
SUSAN BANDERA JUDGE
APPELLEES
REMANDED FOR SUPPLEMENTATION
OF THE RECORD AND FOR
SUPPLEMENTATION OF
THE ADDENDUM
WAYMOND M. BROWN, Judge
Appellants appeal from the circuit court’s grant of appellees’ motion to dismiss their
complaint. On appeal, they argue that the circuit court erred in failing to retroactively apply
an amendment, effective July 1, 2014, to clarify Arkansas Rule of Civil Procedure 4(i). We
are unable to address the merits of appellants’ argument. We remand for supplementation
of the record and for supplementation of the addendum.
Appellants were involved in a motor-vehicle collision with a vehicle owned by
appellees, but driven by Marco Antonio Duran-Duran on August 22, 2009. Appellants filed
their complaint on August 21, 2012. Appellants filed a motion for extension of time to
complete service of the first complaint on December 11, 2012. The circuit court entered an
order granting the motion on December 12, 2012, extending the time to perfect service
until March 30, 2013. Appellants filed a second motion for extension of time.
Cite as 2016 Ark. App. 167
Both the record and the addendum contain the circuit court’s April 23, 2013 order
granting appellants’ second motion for extension of time to complete service, in which it
granted an extension from March 30, 2013, to June 30, 2013. Both the record and the
addendum contain the appellants’ second motion for extension of time. However, neither
the record copy of the second motion for extension of time, nor the addendum copy, is
file-marked. 1 Accordingly, neither the addendum nor the record provide documentary
proof of the date when appellants filed their second motion for extension of time.
Arkansas Supreme Court Rule 3-3 states that pleadings subsequent to the complaint
and answer should appear in the record in chronological order. 2 Arkansas Supreme Court
Rule 4-2(a)(8) states that the addendum shall include any pleading or document that is
essential for the appellate court to confirm its jurisdiction, to understand the case, and to
decide the issues on appeal. 3 It also states that each document in the addendum “must be a
complete and legible copy of the original, clearly showing any file mark.” 4
1
We further note that, while it would not in itself make the motion an official copy,
there is a handwritten note on the copies stating that the motion was “fax filed[;]” however
no date was provided.
2
Ark. Sup. Ct. R. 3-3(6) (2015).
3
Ark. Sup. Ct. R. 4-2(a)(8)(A)(i) (2015).
4
Ark. Sup. Ct. R. 4-2(a)(8)(B). See Spears v. Spears, 2012 Ark. App. 181, at 3; City
of Centerton v. City of Bentonville, 289 S.W.3d 474 (Ark. 2008) (per curiam granting petition
for rehearing) (“[w]e also ask counsel to assure that documents have legible file marks. They
should take particular care in assuring that all records and addenda contain copies of
documents with legible file marks.”)
2
Cite as 2016 Ark. App. 167
The date of the second motion for extension of time is essential to the understanding
of the appellants’ sole point on appeal that the circuit court erred in failing to retroactively
apply an amendment to Arkansas Rule of Civil Procedure 4(i). When a document has been
received by the clerk, file-marking is not inexorable proof of the exact time of filing, but is
the only evidence of the time of filing. 5 We find both the record and the addendum to be
deficient so that we cannot reach the merits of the case. Accordingly, we remand for
supplementation of the record, correcting the above-referenced deficiencies within thirty
days. Additionally, we order appellant to submit a supplemental addendum correcting the
above-referenced deficiencies within fifteen days from the date on which the supplemental
record is filed. We encourage appellant’s counsel to review Rule 4-2 of the Rules of the
Arkansas Supreme Court and Court of Appeals to ensure that the supplemental record and
supplemental addendum comply with the rules and that no additional deficiencies are
present.
Remanded for supplementation of the record and for supplementation of the
addendum.
VAUGHT and HOOFMAN, JJ., agree.
The Nixon Law Firm, by: Theresa L. Pockrus, for appellant.
Wilkinson Law Firm, by: Randall Wakefield, for appellee.
5
Jewell v. Fletcher, 2012 Ark. 132 (citing Ark. Game & Fish Comm’n v. Eddings, 2009
Ark. 359, at 13, 324 S.W.3d 328, 335).
3