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               SUPREME COURT OF ARKANSAS
                                      No.   CV-16-112


                                                Opinion Delivered March   3, 2016
 IN THE MATTER OF THE ESTATE
 OF ESSIE MAE FRAZIER
                                                MOTION FOR RULE ON
 ODELL FRAZIER AND                              CLERK
 GERTRUDE BARBER
 CO-ADMINISTRATORS

                             APPELLANTS

 V.

 MARY MILLER
 FORMER ADMINISTRATOR

                                  APPELLEE
                                                REMANDED.

                                     PER CURIAM


      Appellants, Odell Frazier and Gertrude Barber as Co-Administrators of the Estate of

Essie Mae Frazier, by and through their attorney, Edward H. Schieffler, have filed a motion

for rule on clerk, to file the record and have their appeal docketed. The clerk refused to

docket the appeal because the circuit court’s order granting an extension of time to lodge

the record on appeal did not contain the requisite language of Arkansas Rule of Appellate

Procedure–Civil 5(b)(1) (2014).

       The clerk was correct in refusing to accept the record due to lack of compliance with

Arkansas Rule of Appellate Procedure–Civil 5(b)(1).

       Rule 5(b)(1) provides as follows:
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              (b) Extension of time.
              (1) If any party has designated stenographically reported material for inclusion
       in the record on appeal, the circuit court, by order entered before expiration of the
       period prescribed by subdivision (a) of this rule or a prior extension order, may
       extend the time for filing the record only if it make the following findings:
              (A) The appellant has filed a motion explaining the reasons for the requested
       extension and served the motion on all counsel of record;
              (B) The time to file the record on appeal has not yet expired.
              (C) All parties have had the opportunity to be heard on the motion, either at
       a hearing or by responding in writing;
              (D) The appellant, in compliance with Rule 6(b), has timely ordered the
       stenographically reported material from the court reporter and made any financial
       arrangements required for its preparation; and
              (E) An extension of time is necessary for the court reporter to include the
       stenographically reported material in the record on appeal or for the circuit clerk to
       compile the record.

       In this case, the circuit court granted an extension; however, the order did not have

the required findings relating to subsection (b)(1). This court has made it clear that there

must be strict compliance with Rule 5(b) and that we do not view the granting of an

extension as a mere formality. See Looney v. Bank of W. Memphis, 368 Ark. 639, 249 S.W.3d

126 (2007) (per curiam). When an order fails to comply with Rule 5(b), we may remand

the matter to the circuit court for compliance with the rule. See Charles R. Griffith Farms,

Inc. v. Grauman, 373 Ark. 410, 284 S.W.3d 68 (2008) (per curiam).

       Upon a remand for compliance with Rule 5(b)(1), the circuit court shall determine

whether the rule was complied with at the time the original motion for extension of time

was filed and granted. See Wyre v. Wyre, 2009 Ark. 245, 307 S.W.3d 30 (per curiam). The

circuit court should not permit the parties the opportunity to correct any deficiencies, but

instead should make the findings required by the rule as if they were being made at the time

of the original motion. See id. Should the requirements not have been met at the time of


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the initial motion for extension and order, the circuit court’s order upon remand should so

reflect and be returned to this court. See id. Because the extension order in this case did

not contain all of the findings required by the rule, and because there must be strict

compliance with the rule, we remand the matter regarding the order to the circuit court for

compliance with Rule 5(b)(1).

       Remanded.




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