McElroy v. American Medical Int'l, Inc.

Steele Hays, Justice. The question is whether appellants substantially complied with Arkansas Rules of Appellate Procedure Rule 3(e). Concluding that substantial compliance was lacking, we dismiss the appeal. This medical malpractice case resulted in a verdict for St. Mary’s Hospital and Dr. Finley Turner (defendants-appellees). After a motion for a new trial was denied, Rosemary and David McElroy (plaintiffs-appellants) filed a timely notice of appeal. Appellants designated the entire record and, as required by ARAP Rule 3(e), declared that the transcript had been ordered from the court reporter. Subsequently the appellees moved to dismiss the appeal, and after a hearing, the trial court granted the motion. Appellants have appealed from that order. We begin by pointing out that we have held in several recent cases that only appellate courts have authority to dismiss an appeal. In Johnson v. Carpenter, 290 Ark. 255, 718 S.W.2d 434 (1986), we said: We are troubled by the apparent misunderstanding to the effect that trial judges may dismiss appeals. While we give the trial court the authority to extend the time for docketing the record with us or with the court of appeals, our rules of appellate procedure do not confer on the trial court the power to dismiss appeals. Those rules, as we said of the comparable statutes in Davis v. Ralston Purina Co., supra, and again about the rules in Brady v. Alken, Inc., supra, are for this court to apply. Nine times out of ten we will be able to decide the question of timeliness of a notice of appeal, or prejudicial failure to comply with other requirements, from the record before us. If that is not the case, we may remand the case so that a record on the matter at issue may be made in the trial court, but we do not ask the trial courts to determine who may and who may not appeal the trial courts’ decisions. Although the issue of appealability was thus not properly before the chancellor and probate judge, we reach the same conclusion he did. Treating Johnson’s appeal from that order as a motion to dismiss Carpenter’s appeal, we deny the motion. Not long afterwards that principle was repeated in Venhaus v. Pulaski County Quorum Court, 291 Ark. 558, 726 S.W.2d 668 (1987): In Estes v. Masner, 244 Ark. 797, 427 S.W.2d 161 (1968), this court stated that “[i]t is true that once an appeal is taken to, and docketed in, this court, the trial court is deprived of jurisdiction to further act in this matter.” Again in Brady v. Alken, Inc., 273 Ark. 147, 617 S.W.2d 358 (1981), this court held: We first consider the contention that the trial court erred in dismissing the appeal. There is no question that the trial court still had jurisdiction of the case when the order of dismissal was entered because the record had not yet been lodged in the appellate court. Brady and Estes indicate that a trial court retains jurisdiction as long as the record has not been lodged in the appellate court. However, this court recently announced an absolute rule prohibiting a trial court from ever dismissing an appeal. In Johnson v. Carpenter, 290 Ark. 255, 718 S.W.2d 434 (1986), we explained that “our rules of appellate procedure do not confer on the trial court the power to dismiss appeals. Those rules . . . are for this court to apply.” (emphasis in original). Accordingly, the chancellor erred in dismissing Venhaus’s appeal. Thus the rule is firmly settled that a motion to dismiss an appeal is not proper in the trial court. Nevertheless, we can treat such a motion as having been made in this court. Johnson v. Carpenter, supra. This record establishes the following: Notice of appeal was dated March 2, and filed March 7,1988. As required by Rule 3(e) the notice designated the entire record “and all proceedings, exhibits, evidence and documents introduced into evidence” and contained the requisite statement that the transcript had been ordered from the court reporter. It is undisputed that no order for the transcript had been made when the notice of appeal was filed. On March 30, appellants contacted the court reporter by telephone to state that an amended designation of the record would be filed in the future but no order for the transcript was given. On April 11, appellants wrote to the court reporter designating lesser portions of the transcript. This letter, which was received by the court reporter on April 18, constitutes the initial order for the transcript. On May 10, points to be relied on were mailed to appellees and on May 16, the points to be relied on were filed. On May 31, a motion for an extension of time was filed and granted to July 1. Appellees moved to dismiss the appeal on June 13. Where the notice of appeal fails to state that the transcript has been ordered, but it has in fact been ordered, we have not been disposed to dismiss an appeal for what may be seen as an inadvertent omission of the language required under Rule 3(e). Phillips v. LaValle, 293 Ark. 364, 737 S.W.2d 652 (1987). But where the facts show that the appellant has failed to order the transcript in a timely manner we have held that substantial compliance is lacking. Hudson v. Hudson, 277 Ark. 183, 641 S.W.2d 1 (1983); Appleton-Rice v. Crumpler, 279 Ark. 450, 655 S.W.2d 1 (1983); Phillips v. Marianna Ford Tractor, Inc., 290 Ark. 75, 716 S.W.2d 763 (1986). Here, we are confronted with a situation not previously seen — the appellants affirmatively, but falsely, state that the transcript has been ordered when in fact it has not. Nor was such misstatement promptly corrected by a timely order for the transcript. Indeed, it was another five weeks before the court reporter was actually notified that a transcript was ordered. This not only operates to delay the appeal process, which Rule 3(e) was intended to prevent, but smacks of a deception on the court and opposing counsel. Appellants rely most heavily on Johnson v. Carpenter, supra. But there there was a misunderstanding between counsel for appellants and the court reporter, the implication being that there was a timely order for the transcript. Here, there was no misunderstanding, nor any potential miscommunication. The court reporter’s testimony that April 18 was when the transcript was actually ordered by appellants was not refuted. Appellees charge the appellants with an on-going pattern of delay: that appellants’ motion for a new trial contained a certificate of service upon appellees as of February 9,1988, yet appellants delayed serving the motion upon appellees until February 22; that when appellants wrote the trial judge on February 19, concerning the motion for a new trial they requested that a hearing be delayed for some ninety days; that when appellants filed an amended designation of record the designation was equivocal, purporting to reserve the right to designate additional testimony at some future time; that not until May 16, some two and one-half months after the notice of appeal, did the appellants file the points to be relied upon, which, under Rule 3(g) should accompany the notice of appeal where less than the entire record is designated. In short, we have no difficulty determining that appellants’ actions were calculated to cause a material delay in the appeal process and constituted a failure to substantially comply with Rule 3(e). Appeal dismissed. Dudley, J., not participating. Purtle, J., dissents.