Bryan v. City of Cotter

PER CURIAM.

| TAppellant Justin Bryan, doing business as J & L Construction, appeals from the circuit court’s orders granting Appellee Grubbs, Hoskyn, Barton & Wyatt, Inc.’s motion to dismiss; Appellee Garver, Inc.’s motion for partial summary judgment; and Appellees City of Cotter and City of Gassville’s joint motion for partial summary judgment. Because Bryan has submitted a brief without a proper addendum in violation of Arkansas Supreme Court Rule 4-2(a)(8) (2008), we order rebriefing.

Rule 4-2(a)(8) provides, in pertinent part:

Following the signature and certificate of service, the appellant’s brief shall contain an Addendum which shall include true and legible photocopies of the order, judgment, decree, ruling, letter opinion, or Workers’ Compensation Commission opinion from which the appeal is taken, along with any other 1 ^relevant pleadings, documents, or exhibits essential to an understanding of the case and the Court’s jurisdiction on appeal.

Ark. Sup.Ct. R. 4 — 2(a)(8). The procedure to be followed when an appellant has submitted an insufficient abstract or addendum is set forth in Arkansas Supreme Court Rule 4 — 2(b)(3):

Whether or not the appellee has called attention to deficiencies in the appellant’s abstract or Addendum, the Court may address the question at any time. If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, Addendum, and brief, at his or her own expense, to conform to Rule 4-2(a)(5) and (8). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant’s counsel, as the Court may direct. If after the opportunity to cure the deficiencies, the appellant fails to file a complying abstract, Addendum and brief within the prescribed time, the judgment or decree may be affirmed for noncompliance with the Rule.

Ark. Sup.Ct. R. 4-2(b)(3).

Here, Bryan’s brief is deficient due to the fact that his addendum lacks relevant pleadings essential to an understanding of the case. On appeal, he challenges the circuit court’s orders of dismissal in favor of all four Appellees. However, his addendum fails to include any of the motions leading to the orders of dismissal, as well as the responses and replies thereto and the briefs in support thereof. Separate Appellee Grubbs, Hoskyn, Barton & Wyatt, Inc. has submitted a supplemental addendum, which includes its own motion to dismiss and brief in support and its reply to Bryan’s response to the motion. Bryan’s response |ais not included. The supplemental addendum also includes Gar-ver, Inc.’s motion for partial summary judgment and brief in support, as well as Garver, Inc.’s reply to Bryan’s response to the motion. Again, Bryan’s response and supplemental response are not included. The supplemental addendum does not include any of the pleadings leading to the summary judgment granted to the cities.

This court has consistently ordered re-briefing in appeals of summary judgments where the addendum fails to include the motion for summary judgment, the opposing party’s response to the motion, the moving party’s reply to the response, and any briefs in support.1 We have been presented with this situation several times in recent months. See, e.g., Brock v. Townsell, supra; Neely v. McCastlain, supra; Whiteside v. Russellville Newspapers, Inc., supra; Preston v. Stoops, supra. We have required rebriefing in each instance.2 Moreover, we have reached the same result in appeals challenging the grant of a motion to dismiss. See, e.g., Kyzar v. City of West Memphis, 359 Ark. 366, 197 S.W.3d 502 (2004) (per curiam); Branscumb v. Freeman, 357 Ark. 644, 187 S.W.3d 846 (2004) (per curiam).

We acknowledge the dissent’s contention that we should decide this case on its merits as it is currently briefed, as the abstract and addendum show that the issues argued on appeal were argued below. However, we do not consider a showing of preservation to be the sole or essential purpose behind Rule 4-2(a)(8). This court has observed that it is impossible for us to 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. White County v. Cities of Judsonia, Kensett, & Pangburn, 368 Ark. at 604, 247 S.W.3d at 864 (citing Branscumb v. Freeman, 357 Ark. at 645, 187 S.W.3d at 847); Unum Life Ins. Co. of Am. v. Edwards, 361 Ark. at 151, 205 S.W.3d at 127. We have previously noted the importance of showing that|sthe issues argued on appeal were properly preserved, but our ability to determine the merits of a case has always been paramount. We are of the opinion that 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. In such situations, it is impossible for us to make an informed decision on the merits, “let alone determine whether [the] arguments are, in fact, preserved for appeal.” Conlee v. Conlee, 369 Ark. 178, 179, 251 S.W.3d 306, 307 (2007) (per curiam).

Our position on this issue is not new. See, e.g., CitiFinancial Retail Servs. Div. of CitiCorp Trust Bank, FSB v. Weiss, 371 Ark. 421, 266 S.W.3d 740 (2007) (per curiam) (rebriefing ordered in appeal of summary judgment where addendum lacked motions for summary judgment and briefs in support); Patrick v. State, 358 Ark. 300, 188 S.W.3d 906 (2004) (per curiam) (rebriefing ordered in appeal of denial of motion to suppress where brief in support of motion to suppress not included); Moon v. Holloway, 353 Ark. 520, 110 S.W.3d 250 (2003) (per curiam) (rebriefing ordered in appeal of summary judgment where addendum lacked “summary-judgment pleadings”). We have always shown a preference for a bright-line rule with an objective standard, requiring the inclusion of pleadings and motions that led to the order being appealed, over the subjective test advocated by the dissent.

Because Bryan has failed to comply with our rules, we order him to file a substituted addendum and brief within fifteen days from the date of entry of this order. If Bryan fails 1 fito do so within the prescribed time, the orders appealed from may be affirmed for noncompliance with Rule 4-2. After service of the substituted addendum and brief, Appellees shall have an opportunity to revise or supplement their briefs in the time prescribed by the clerk.

Rebriefing ordered.

CORBIN, GUNTER, and DANIELSON, JJ., concur. BROWN, J., dissents.

. The dissent maintains that motions and responses are not pleadings and are therefore not required under Rule 4-2(a)(8). Our re-briefing orders in accordance with Rule 4-2(a)(8) have always referred to absent motions and responses as pleadings. See, e.g., Brock v. Townsell, 2009 Ark. 81. at 2, - S.W.3d -, - (per curiam) (addendum lacked "relevant pleadings essential to an understanding of the case,” including motions for summary judgment, responses and replies thereto, and briefs in support thereof); Neely v. McCastlain, 375 Ark. 478, 479, 291 S.W.3d 585, 586 (2009) (per curiam) (addendum lacked "relevant pleadings essential to an understanding of the case,” including motion for summary judgment and response thereto); Whiteside v. Russellville Newspapers, Inc., 375 Ark. 245, 247, 289 S.W.3d 461, 462 (2008) (per curiam) (addendum lacked "certain pleadings,” including brief in support of summary-judgment motion, response to summary-judgment motion and brief in support, reply to response to summary-judgment motion, and response to reply to initial response); Preston v. Stoops, 373 Ark. 115, 116, 281 S.W.3d 720, 720 (2008) (per curiam) (addendum lacked "these pleadings,” including response to summary-judgment motion and reply to response); White County v. Cities of Judsonia, Kensett, & Pangburn, 368 Ark. 603, 604, 247 S.W.3d 863, 863 (2007) (per curiam) (addendum lacked "relevant pleadings,” including motion for summary judgment and brief in support and "any of the other pleadings considered by the circuit court in reaching its determination”); Unum Life Ins. Co. of Am. v. Edwards, 361 Ark. 150, 151, 205 S.W.3d 126, 127 (2005) (per curiam) (addendum lacked "numerous pleadings,” including motion for summary judgment and brief in support, response to motion, reply to response, and supplemental response).

. This court recently declined to order re-briefing in an appeal of a summary judgment, despite the fact that the motion for summary judgment was not included in the addendum. Bryant v. Hendrix, 375 Ark. 200, 289 S.W.3d 402 (2008). We chose to accept the case as it was briefed and address the merits because the issues on appeal were strictly questions of law, and there were no facts in dispute. Specifically, the appellants contended that the circuit court erred as a matter of law in ruling that their claims were precluded by the statute of limitations and that the relation-back doctrine does not apply to the substitution of plaintiffs. "On appeal, Appellants do not contend there are disputed issues of fact; rather, they argue the circuit court erred as a matter of law in granting summary judgment on the basis of the statute of limitations.” Id. at 203, 289 S.W.3d at 404. Such is not the case here, where Bryan argues that the circuit court’s interpretation of the contract at issue was flawed.