dissenting. I strongly disagree with the majority’s analysis. The actions of the circuit court clearly violated Administrative Order No. 4. This court should issue a writ of mandamus directing the circuit court to fully comply with the requirements of Administrative Order No. 4.
The majority concludes that Thompson has failed to point to any specific proceeding that the circuit court refused to record. I cannot agree. A chronology of the events and filings in the underlying case is helpful in understanding the nature of Thompson’s request. Thompson’s case against Barbara and Ray Burbank originated on July 21, 2005, with Thompson’s filing of a “Petition for Equitable Relief & Damages.” In his petition, Thompson averred that the property being purchased by him from the Burbanks was vandalized, and that various insurance checks were thus issued to him, at least one of which required a signature by the Burbanks. The Burbanks refused to provide the necessary signatures, thereby preventing Thompson from acquiring funds for the repair of the property. Because the insurance company indicated that the settlement would expire by August 20, 2005, Thompson asked the court to schedule an immediate hearing for mandatory injunctive relief. He also requested damages for the delay and an award of attorneys’ fees and costs.
The record reflects that a hearing was eventually scheduled and then cancelled. A letter from Thompson’s attorney to the circuit court dated January 25, 2007, indicated the attorneys’ mutual agreement that the “temporary issue” could be submitted and decided on the briefs. On April 3, 2007, Thompson filed a “Brief for Interim Equitable Relief,” requesting an order directing the Burbanks to immediately provide the necessary signatures. The brief stated that Thompson had proposed four different contractors to the Burbanks, each of which they rejected. Apparently, the Burbanks did not file a brief. The circuit court did not provide a ruling.
On April 17, 2007, counsel for the Burbanks sent a letter to the circuit court, requesting that a hearing be scheduled. A hearing was set for September 18, 2007. However, on that date, counsel for the Burbanks sent another letter to the circuit court, stating that his clients “need[] an opportunity to inspect the property and cannot supply a contractor’s proposal absent that opportunity to inspect and get an estimate on the damages.” He requested that the issues “be dealt with at a future scheduling.”1 In response, Thompson filed a “Motion for Summary Disposition on Issue of Temporary Relief & Motion in Limine.” An attached letter stated that Thompson opposed the Burbanks’ request for a continuance. He requested summary disposition in the form of an order directing the Burbanks to immediately release the insurance funds, as well as a ruling in limine preventing the Burbanks from presenting any evidence on the “temporary issue,” due to their previous failure to submit any brief or counterproposal.
This motion for summary disposition and the attached letter contained Thompson’s requests for the recording of in-chambers conferences, as quoted in the majority opinion. Although the motion itself requested that “all in chambers conferences” be on the record, the incorporated letter referenced a specific conference. After stating the basis for the motion for summary disposition, the letter concluded as follows: “Further, if the Court decides to have an in chambers conference, I request that, in accordance with Ark. Sup. Ct. Admin. Order No. 4, that it be fully and completely made part of the record, with the court reporter present.” In my view, Thompson was requesting the recording of any conference or hearing on the motion for summary disposition. I fail to see how this request could have been any more specific. The case between Thompson and the Burbanks was clearly a contested matter, and a hearing on the motion for summary disposition would clearly have been a proceeding. Such a conference would have to be recorded pursuant to Administrative Order No. 4.
The circuit court nonetheless denied Thompson’s request, in its September 21, 2007, order. The language of the denial reflects the circuit court’s misinterpretation of the administrative order. While the circuit court’s order refers to a “long established administrative practice” of holding unrecorded in-chambers conferences, Administrative Order No. 4 requires that the circuit court record all proceedings pertaining to any contested matter, unless waived on the record by the parties. Indeed, it is the duty of the circuit court to require this verbatim record without regard to whether such proceedings occur in chambers or in the courtroom. Moreover, the circuit court’s amended order, entered after
Thompson’s petition was filed with this court, also indicates a similar misinterpretation of the administrative order. In an effort to render Thompson’s petition moot, the circuit court refused to provide a ruling on Thompson’s request to make a record. While assuring compliance with Administrative Order No. 4, the circuit court stated that it would hold no more in-chambers conferences with Thompson’s counsel. Such a ruling not only foreclosed Thompson’s right to waive a verbatim record of proceedings, but it also imposed a penalty on Thompson as a result of his counsel’s request for a verbatim record of any conference on the pending motion for summary disposition. For these reasons, I believe that the circuit court’s amended order also violated Administrative Order No. 4.
Furthermore, under the administrative order, Thompson was not required to request that all proceedings be conducted on the record; rather, Administrative Order No. 4 provides that proceedings pertaining to contested matters must always be recorded, unless waived by the parties. Therefore, the parties, and not the court, have the discretion to forego making a record. Here, both orders entered by the circuit court suggest a belief that the court is free to decide which proceedings pertaining to a contested matter need to be recorded. This belief is contrary to the plain language of Administrative Order No. 4.
Our case law is clear. We have previously put the bench and bar on notice that we will strictly construe and apply Administrative Order No. 4. Robinson v. State, 353 Ark. 372, 108 S.W.3d 622 (2003). “Under Administrative Order No. 4, unless the parties agree otherwise, it [is] the duty of the circuit court to require a verbatim record in any contested proceeding before it.” Id. at 378, 108 S.W.3d at 625. The circuit court in the instant case failed to comply with this duty, and I would issue a writ of mandamus directing it to do so.
Glaze and Brown, JJ., join this opinion.The circuit court’s amended order, dated December 13,2007, states that a hearing was held on September 18; however, a record of that hearing is not before us. It is not clear whether the hearing was continued, held but not recorded, or recorded, with the transcript not a part of the record before us.