Roberts v. Wortz

Cite as 2016 Ark. App. 513

ARKANSAS COURT OF APPEALS
DIVISION III
No.CV-15-1012

Opinion Delivered: November 2, 2016
PHILIP ROBERTS
APPELLANT
APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT,
V. FORT SMITH DISTRICT
[NO. CV-2013-101]

ED DELL WORTZ HONORABLE STEPHEN TABOR,
APPELLEE JUDGE
REMANDED TO SUPPLEMENT
THE RECORD; REBRIEFING
ORDERED

RAYMOND R. ABRAMSON, Judge

Philip Roberts appeals the Sebastian County Circuit Court’s order dismissing his

complaint against Ed Dell Wortz with prejudice. On appeal, Roberts argues that the court

abused its discretion in dismissing his complaint because he withheld discoverable

information. Because of deficiencies with the record, addendum, and brief, we are unable

to reach the merits of his argument at this time.

On August 17, 2015, the circuit court entered its order dismissing Roberts’s

complaint with prejudice because he failed to supplement a discovery response. The court

noted, “[T]his is [Roberts’s] second discovery violation during the pendency of the case.

The first was characterized by the Court as inadvertent at the time of its discovery.

Subsequent events cast doubt on that characterization.”
Cite as 2016 Ark. App. 513

Roberts references his first discovery violation in the argument section of his brief.

He states that on December 4, 2014, the court found that the violation was inadvertent and

denied Wortz’s related motion to dismiss. For this proposition, Roberts cites the addendum

for a circuit court order dated December 5, 2014. In that order, the court continued the

trial date but the order does not reference a discovery violation or Wortz’s motion to dismiss.

The December 5, 2014 order states, “For the reasons set forth in the Court’s letter to counsel

dated December 4, 2014, this matter is hereby continued.”

However, the December 4, 2014 letter is not included in the addendum or the

record. The court specifically relied on its findings as to Roberts’s first discovery violation

when it dismissed his complaint for his second violation, and without the letter, we are

unable to understand the reasoning behind the court’s findings as to the first violation, which

renders appellate review difficult. If anything material to either party is omitted from the

record by error or accident, we may direct that the omission be corrected and that a

supplemental record be certified and transmitted. Ark. R. App. P.–Civ. 6(e). Accordingly,

we remand the case to the circuit court to supplement the record with the December 4,

2014 letter.

We also take this opportunity to address two deficiencies in Roberts’s brief. First,

Roberts’s addendum contains many documents that are irrelevant to the issue on appeal.

For example, the addendum unnecessarily includes exhibits pertaining to Roberts’s business

interests and his financial and tax records. An abstract and addendum can be deficient for

containing too much material, as well as too little. Am. Transp. Corp. v. Exch. Capital Corp.,

84 Ark. App. 28, 129 S.W.3d 312 (2003). Second, in the argument section of his brief,

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Cite as 2016 Ark. App. 513

Roberts makes many assertions without appropriate citation to the abstract or addendum.

Ark. Sup. Ct. R. 4–2(a)(7) requires that “reference[s] in the argument portion of the parties’

briefs to material found in the abstract and addendum shall be followed by a reference to

the page number of the abstract or addendum at which such material may be found.”

Because of these deficiencies, we also find that rebriefing is necessary here.

Accordingly, for these reasons, we direct Roberts to file with our clerk’s office,

within thirty days from the date of this order, a certified, supplemental record. See Ark. R.

App. P.–Civ. 6(e) (2015); McCoy v. Jackson, 2011 Ark. App. 456. Upon filing the

supplemental record, Roberts shall have fifteen days in which to file a substituted abstract,

addendum, and brief. See Ark. Sup. Ct. R. 4–2(b)(3) (2015). We encourage appellate

counsel to review our rules to ensure that no additional deficiencies are present.

Remanded to supplement the record; rebriefing ordered.

GLADWIN, C.J., and WHITEAKER, J., agree.

Chaney Law Firm, P.A., by: Don P. Chaney, for appellant.

Huckabay Law Firm, PLC, by: D. Michael Huckabay, Jr. and Kathryn B. Knisley, for

appellee.

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