Leece Props. LLC v. Myers

Cite as 2015 Ark. App. 320

ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-14-1126

LEECE PROPERTIES, LLC; JEFFERY Opinion Delivered MAY 13, 2015
W. LEECE; and SHERRY S. LEECE
APPELLANTS APPEAL FROM THE GARLAND
COUNTY CIRCUIT COURT
V. [NO. CV 2011-1026]

HONORABLE LYNN WILLIAMS,
RODNEY MYERS; R.D. MYERS JUDGE
DEVELOPMENT, INC.; SCOTT VISE;
JONATHAN D. JONES, individually and REBRIEFING ORDERED
JONATHAN D. JONES, ATTORNEY
AT LAW, P.A.
APPELLEES

CLIFF HOOFMAN, Judge

Appellants Leece Properties, LLC; Jeffery W. Leece; and Sherry S. Leece appeal from

a September 5, 2014 order and a December 18, 2013 order entered by the Garland County

Circuit Court in favor of appellees Rodney Myers; R.D. Myers Development, Inc.; Scott

Vise (“Vise”); and Jonathan D. Jones, individually and Jonathan D. Jones, Attorney at Law,

P.A. (“Jones”). On appeal, appellants contend that (1) the circuit court erred in granting

appellee Vise’s motion for summary judgment and the subsequent order for attorney’s fees and

(2) the circuit court erred in granting appellee Jones’s motion for summary judgment.

Because appellants’ abstract and addendum are deficient, we do not reach the merits of this

appeal and, instead, order rebriefing.

Appellants initially filed a complaint on September 8, 2011, and an amended complaint
Cite as 2015 Ark. App. 320

was filed on October 21, 2011. In the amended complaint, appellants, in relevant part,

alleged causes of action for breach of contract and for fraud against Vise and for professional

negligence against Jones.1 Vise filed a motion for summary judgment on July 29, 2013,

alleging that he was not a party to the contracts and that appellants could not demonstrate that

he conspired to commit any fraudulent act. In support of his motion, Vise attached excerpts

from depositions taken in this case and a brief in support of his motion. Appellants filed a

response on August 19, 2013, alleging that there were still issues of “genuine fact” but did not

attach any supporting documents. Subsequently, the circuit court granted Vise’s motion for

summary judgment on December 18, 2013, specifically finding that “there [was] no evidence

of an oral or written contract between Plaintiffs and Separate Defendant, Scott Vise” and

“[t]hat there [was] no evidence of any statement or action that can be construed to be a

fraudulent statement or prove any of the elements of fraud committed by Separate Defendant,

Scott Vise.” Additionally, the circuit court awarded Vise attorney’s fees.

Jones filed his motion for summary judgment on June 18, 2014, alleging that he was

only retained to draft documents, that he performed those duties and was paid, and that he

was entitled to a summary judgment of dismissal as a matter of law. In support of his motion,

Jones filed a brief in support and attached excerpts of deposition testimony. Appellants filed

a response to the motion for summary judgment on July 11, 2014. Additionally, appellants

filed a brief in support of their response. However, this document is not included in the

1
Although the amended complaint also alleged causes of action against Rodney Myers
and R.D. Myers Development, Inc., the circuit court granted appellants’ motion for partial
voluntary dismissal on May 19, 2014, specifically dismissing them from this action.

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Cite as 2015 Ark. App. 320

addendum on appeal. After a hearing, the circuit court granted Jones’s motion for summary

judgment, finding that there was “no proof offered by the Plaintiffs that Jonathan D. Jones

was ever hired to do anything other than prepare the documents for which were done and

for which the Plaintiffs paid him.” Therefore, the circuit court found that Jones did not owe

a duty to appellants beyond the preparation of those documents and that no genuine issue of

law or material fact existed. This appeal followed.

On appeal, appellants contend that (1) the circuit court erred in granting appellee Vise’s

motion for summary judgment and the subsequent order for attorney’s fees and (2) the circuit

court erred in granting appellee Jones’s motion for summary judgment.2 Because appellants’

abstract and addendum are deficient, we do not reach the merits of this appeal at this time

and, instead, order rebriefing.

As noted above, the addendum is incomplete and is missing appellants’ brief in support

of their response to the motion for summary judgment. Additionally, appellants’ abstract is

deficient in that it fails to abstract all the material parts of the deposition and hearing

transcripts. Appellants abstract and improperly condense certain portions of the transcripts

while failing to abstract other portions. Furthermore, appellants fail to provide all necessary

record page references in the abstract as required by Arkansas Supreme Court Rule 4-2(a)(5)

& 8 (2014) which provides,

2
Appellees filed a motion for sanctions and for an order finding that this appeal was
being prosecuted for purposes of delay, and this motion was passed to the panel to be
considered with the merits of the appeal. However, because rebriefing is necessary, this
motion is left outstanding to be considered by the panel after the appeal is rebriefed.

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Cite as 2015 Ark. App. 320

(5) Abstract. The appellant shall create an abstract of the material parts of all the
transcripts (stenographically reported material) in the record. Information in a
transcript is material if the information is essential for the appellate court to confirm
its jurisdiction, to understand the case, and to decide the issues on appeal.

(A) Contents. All material information recorded in a transcript
(stenographically reported material) must be abstracted. Depending on the
issues on appeal, material information may be found in, for example, counsel’s
statements and arguments, voir dire, testimony, objections, admissions of
evidence, proffers, colloquies between the court and counsel, jury instructions
(if transcribed), and rulings. All material parts of all hearing transcripts, trial
transcripts, and deposition transcripts must be abstracted, even if they are an
exhibit to a motion or other paper. Exhibits (other than transcripts) shall not
be abstracted. Instead, material exhibits shall be copied and placed in the
addendum. If an exhibit referred to in the abstract is in the addendum, then
the abstract shall include a reference to the addendum page where the exhibit
appears.

(B) Form. The abstract shall be an impartial condensation, without comment
or emphasis, of the transcript (stenographically reported material). The abstract
must not reproduce the transcript verbatim. No more than one page of a
transcript shall be abstracted without giving a record page reference. In
abstracting testimony, the first person (“I”) rather than the third person (“He
or She”) shall be used. The question-and-answer format shall not be used. In
the extraordinary situations where a short exchange cannot be converted to a
first-person narrative without losing important meaning, however, the abstract
may include brief quotations from the transcript.
....

(8) Addendum. The appellant’s brief shall contain an addendum after the signature and
certificate of service. The addendum shall contain true and legible copies of the
non-transcript documents in the record on appeal that are essential for the appellate
court to confirm its jurisdiction, to understand the case, and to decide the issues on
appeal. The addendum shall not merely reproduce the entire record of trial court
filings, nor shall it contain any document or material that is not in the record.

(A) Contents.
(i) The addendum must include the following documents:
....

• all motions (including posttrial and postjudgment motions),
responses, replies, exhibits, and related briefs, concerning the

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Cite as 2015 Ark. App. 320

order, judgment, or ruling challenged on appeal. But if a
transcript (stenographically reported material) of a hearing,
deposition, or testimony is an exhibit to a motion or related
paper, then the material parts of the transcript shall be abstracted,
not included in the addendum. The addendum shall also contain
a reference to the abstract pages where the transcript exhibit
appears as abstracted[.]

Thus, because appellants’ brief in support of their response to the motion for summary

judgment and a complete abstract are necessary to understand the case and to decide the issues

on appeal, rebriefing is necessary to correct the deficiencies.

Pursuant to Arkansas Supreme Court Rule 4-2(b)(3), appellants are afforded an

opportunity to cure these deficiencies and have fifteen days from the date of this opinion

within which to file a substituted abstract, addendum, and brief. Upon the filing of such a

substituted brief, appellees will then be afforded an opportunity to revise or supplement their

brief in the time prescribed by the clerk. Id. The deficiencies noted are not to be taken as

an exhaustive list, and we encourage counsel for appellants to review our rules to ensure that

no other deficiencies are present. If, after the opportunity to cure the deficiencies, appellants

fail to file a complying abstract, addendum, and brief within the prescribed time, the judgment

may be affirmed for noncompliance with the rules. Id.

Rebriefing ordered.

VAUGHT and BROWN, JJ., agree.

Naramore Law Firm, P.A., by: Ronald G. Naramore, for appellants.

Tapp Law Firm, P.A., by: Taylar C. M. Tapp III; and Jonathan D. Jones, for appellees.

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