Christina Marziale v. Kimberly Brown

Cite as 2024 Ark. App. 282
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-22-679

CHRISTINA MARZIALE, Opinion Delivered May 1, 2024
INDIVIDUALLY AND AS MOTHER OF
BABY BOY MARZIALE; AND DANA APPEAL FROM THE JEFFERSON
MCLAIN, ADMINISTRATOR OF THE COUNTY CIRCUIT COURT
ESTATE OF ELAINE MARZIALE [NO. 35CV-18-660]
APPELLANTS
HONORABLE ALEX GUYNN, JUDGE
V.

KIMBERLY BROWN, SPECIAL
ADMINISTRATOR FOR THE ESTATE
OF TENISHA BROWN, IN HER
INDIVIDUAL CAPACITY; TYRAN
TURNER, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY; JENNIFER
FRIERSON, IN HER INDIVIDUAL
CAPACITY AND IN HER OFFICIAL
CAPACITY; PHYLLIS SILAS;
WELLPATH, LLC, F/K/A CORRECT
CARE SOLUTIONS, LLC; STEPHEN
COOK; MAKITA LAGRANT; AND REMANDED TO SETTLE AND
JOHN DOES 5–10, IN THEIR SUPPLEMENT THE RECORD
INDIVIDUAL CAPACITIES
APPELLEES

RAYMOND R. ABRAMSON, Judge

This is an Arkansas Civil Rights Act case involving a jail transport to the Jefferson

County Regional Medical Center (JRMC) on October 4, 2015. Inmate Christina Marziale
was pregnant with twins, a boy and a girl, at the time.1 She, on behalf of herself and her

infant male son, and Dana McLain, the appointed administrator of the estate of Elaine

Marziale, Christina’s deceased daughter, sued multiple parties, including Tenisha Brown, a

Division of Community Correction (DCC) guard, in her official and individual capacity.

During the litigation, Tenisha died, and her sister Kimberly was appointed special

administrator of her estate. Marziale appeals from the July 13, 2022 Jefferson County Circuit

Court order denying her summary-judgment motion and granting Brown’s cross-motion for

summary judgment and amended cross-motion for summary judgment.

The procedural history of this case is convoluted, and because we hold that the record

before us may not be complete, we do not address it in detail here. Marziale originally filed

suit on October 7, 2015, in the Pulaski County Circuit Court, and the case was later

transferred to the Jefferson County Circuit Court. The litigation became a procedural

morass,2 and we cannot ascertain from the record whether we have been presented with

everything needed to decide this appeal.

Marziale’s notice of appeal complies with Ark. R. App. P.–Civ. 3(e)(vi) by stating that

she abandons all pending and unresolved claims. However, this court does not have

1
The babies were delivered that day, but Marziale’s daughter subsequently died.
2
Including but not limited to a circuit court case that was removed to federal court,
of which Brown was not a party, but her deposition was taken in the state court case before
she was later sued and obtained counsel. See Marziale v. Correct Care Sols., LLC, No. 35CV-
16-72 (Jefferson Cnty. Cir. Ct.) (compl. filed Feb. 11, 2016), and Marziale v. Correct Care Sols.,
LLC, No. 5:18-cv-86-DPM (E.D. Ark. Jan. 19, 2021), ECF No. 304.

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jurisdiction to review any order other than the circuit court’s grant of summary judgment

because that is the only order identified in the notice of appeal. See Ark. R. App. P.– Civ.

3(e)(ii). The notice of appeal explicitly identified the order appealed from as “the grant of

summary judgment to Kimberly Brown.”

While Marziale designates a partial record on appeal, in appellee’s brief, Brown’s

counsel references the following: “The record contains a transcript of one hearing on

summary judgment. There was a second hearing on summary judgment on June 30, 2022.

The hearing was oral argument, but the transcript is not in the record.”

A record on appeal shall be compiled in accordance with the rules of the Arkansas

Supreme Court and Court of Appeals. Ark. R. App. P.–Civ. 6(a). The record in civil cases

consists of the pleadings, judgment, decree, order appealed, transcript, exhibits, and

certificates. Ark. Sup. Ct. R. 3-1(n). If an appellant is going to argue on appeal that the

evidence does not support, or is contrary to, a finding or conclusion, the party “shall include

in the record a transcript of all evidence relevant to such finding or conclusion.” Ark. R.

App. P.–Civ. 6(b). If anything material to either party is omitted from the record, either by

error or by accident, we may direct that the omission or misstatement be corrected and, if

necessary, that a supplemental record be certified and transmitted. Ark. Sup. Ct. R. 3-3; Ark.

R. App. P.–Civ. 6(e); Perez v. State, 2015 Ark. App. 561; Lacy v. State, 2017 Ark. App. 509;

Jenkins v. APS Ins., LLC, 2012 Ark. App. 368, at 5–6.

Here, we remand this case to settle and supplement the record because we are unable

to determine whether a summary-judgment hearing occurred on June 30, 2022. Because

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Marziale appeals only the “grant of summary judgment to Kimberly Brown,” this hearing is

material to our decision. Accordingly, we hereby remand this case to the circuit court to

settle and supplement the record within thirty days from the date of this opinion.

Remanded to settle and supplement the record.

THYER and MURPHY, JJ., agree.

Luther Oneal Sutter and Lucien R. Gillham, for appellants.

McDaniel Wolff, PLLC, by: Scott P. Richardson, for separate appellee Kimberly Brown.

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