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                SUPREME COURT OF ARKANSAS
                                      No.   CV-15-664

KAREN GRANGER AND BRIAN                          Opinion Delivered   January 28, 2016
GRANGER
                 APPELLANTS                      MOTION TO DISMISS AND STAY
                                                 BRIEFING SCHEDULE; OPPOSITION
V.                                               TO CERTIFICATION OF MOTION
                                                 TO DISMISS; REQUEST FOR
                                                 ATTORNEY’S FEES
FARM BUREAU MUTUAL
INSURANCE COMPANY OF
ARKANSAS, INC.
                   APPELLEE                      MOTION TO DISMISS AND STAY
                                                 BRIEFING SCHEDULE TREATED AS
                                                 MOTION TO RECONSIDER
                                                 MOTION FOR RULE ON CLERK;
                                                 APPEAL DISMISSED; OPPOSITION TO
                                                 CERTIFICATION OF MOTION TO
                                                 DISMISS MOOT; REQUEST FOR
                                                 ATTORNEY’S FEES GRANTED.


                           KAREN R. BAKER, Associate Justice


       On September 29, 2015, appellee Farm Bureau Mutual Insurance Company of

Arkansas, Inc. (“Farm Bureau”) filed a motion to dismiss and stay briefing schedule. Farm

Bureau’s motion alleges that appellants Karen and Brian Granger’s (“Granger”) August 19,

2015 motion for rule on clerk was not served on Farm Bureau. On September 24, 2015, we

granted Granger’s motion for rule on clerk. However, Farm Bureau asserts that it was not

aware of the motion for rule on clerk until counsel was electronically notified by this court

of the briefing schedule. Upon further examination of the record, we have determined that
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Granger’s motion for rule on clerk was improvidently granted and we dismiss the appeal.

       On October 3, 2014, Granger filed a notice of appeal, designating for appeal orders

entered on July 7, 2011, March 3, 2014, March 18, 2014, March 31, 2014, April 3, 2014, and

September 4, 2014. Pursuant to Rule 5 of the Arkansas Rules of Appellate Procedure–Civil,

the record was due to be filed in this court within ninety days from the filing of the first

notice of appeal. Because the ninetieth day fell on New Year’s Day, the record was due on

Friday, January 2, 2015. On December 18, 2014, Granger filed a motion for enlargement of

time to file the transcript, requesting that the circuit court enlarge the time to file the record

by sixty days. On the same day, the Crittenden County Circuit Court entered an order

granting the motion and extending the time to lodge the record by sixty days.

       On March 18, 2015, the circuit court entered an order denying Granger’s second

request for an extension of time to lodge the record. The order states that on February 26,

2015, Granger’s counsel appeared in chambers requesting an enlargement of time to lodge the

record; the court’s clerk advised counsel that the record was prepared for filing; counsel’s

reason for seeking an extension was for time to diligently review the record; and opposing

counsel were present and objected to the extension of time to file the record. Further, the

circuit court found that Granger failed to demonstrate good cause for an enlargement of time

to file the record. On March 20, 2015, the circuit court entered a second order denying the

oral request for an extension of time.

       On March 27, 2015, Granger filed a motion for reconsideration of the order denying

Granger’s second motion for enlargement of time to lodge the record. On May 1, 2015, the


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circuit court entered an order denying Granger’s motion for reconsideration and finding that

the December 18, 2014 order granting Granger’s motion for enlargement of time failed to

comply with Rule 5(b)(1) of the Arkansas Rules of Appellate Procedure–Civil. The order

states in pertinent part as follows:

               This Court granted the Plaintiffs’ first motion of enlargement of time to lodge
       an appellate record on December 16, 2014.1 However, in retrospect, the Court
       realizes this Order was entered without hearing or notice to Defendants Farm Bureau
       and Baber and without an express finding of good cause as to the need for the
       extension of time.

Arkansas Rule of Appellate Procedure–Civil 5(b)(1) provides as follows:

(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 makes 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


       1
       The May 1, 2015 order states that the circuit court granted the first motion for
enlargement of time on December 16, 2014; however, the extension order was not filed
until December 18, 2014.


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              stenographically reported material in the record on appeal or for the circuit
              clerk to compile the record.

There must be strict compliance with the requirements of Rule 5(b). Winrock Grass Farm, Inc.

v. Metropolitan Nat’l Bank, 373 Ark. 515, 284 S.W.3d 521 (2008). In the May 1, 2015 order,

the circuit court found that the December 18, 2014 extension order failed to comply with the

requirements of Rule 5(b)(1)(A) and (C) because no hearing was held, and Farm Bureau was

not given an opportunity to be heard or to respond to the motion prior to the entry of the

order granting the extension. Further, the circuit court found that Granger failed to state

good cause for an extension of the deadline to lodge the record on appeal. Due to the

December 18, 2014 order’s noncompliance with Rule 5(b), the order of extension entered

by the circuit court was void. Because the December 18, 2014 order was ineffective to

extend Granger’s time to lodge the record, we must dismiss the appeal because Granger failed

to timely lodge the record ninety days after the October 3, 2014 notice of appeal.

Interestingly, Granger contended in his August 19, 2015 motion for rule on clerk that he was

only attempting to appeal the May 1, 2015 order denying his motion for reconsideration.

However, subsequent to the December 16, 2015 certification of Farm Bureau’s motion to

dismiss and stay briefing schedule, Granger tendered an opposition to certification on January

12, 2016. In his opposition, Granger states that “Appellee breached the parties’ contract and

engaged in bad faith by relying on certain misstatements in Appellants’ insurance application

to avoid paying their homeowners’ claim.” Thus, despite Granger’s assertions to the contrary,

it is clear that Granger has been disingenuous with this court and is attempting to appeal the



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underlying merits of this case. Thus, upon further review, we have determined that the

motion for rule on clerk was improvidently granted. We now dismiss the appeal.

       As noted above, Granger tendered an opposition to certification of Farm Bureau’s

motion to dismiss. On January 21, 2016, Farm Bureau tendered a response to Granger’s

opposition to certification of Farm Bureau’s motion to dismiss. In the response, Farm Bureau

requests attorney’s fees and all other just and proper relief to which they may be entitled. We

grant Farm Bureau’s request for attorney’s fees in the amount of $1,500.00. Granger’s

opposition to certification of Farm Bureau’s motion to dismiss is moot.

       Motion to dismiss and stay briefing schedule treated as motion to reconsider motion

for rule on clerk; appeal dismissed; opposition to certification of motion to dismiss moot;

request for attorney’s fees granted.

       DANIELSON, J., concurs.

       PAUL E. DANIELSON, Justice, concurring. I agree that the motion for rule on

clerk granted in this case on September 24, 2015, was improvidently granted and that we

should dismiss the appeal. However, my analysis differs from that of the majority. In their

motion for rule on clerk, appellants Karen Granger and Brian Granger asserted that their last

notice of appeal was filed on May 22, 2015, making the record due on August 20, 2015.

However, Arkansas Rule of Appellate Procedure–Civil 5(a) provides that the record shall be

filed within ninety days “from the filing of the first notice of appeal.” (Emphasis added.) As

the majority notes, the appellants’ first notice of appeal was filed on October 3, 2014;

accordingly, the record was due on January 2, 2015. At most, the appellants were granted a


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sixty-day extension by virtue of the circuit court’s December 18, 2014 order, although the

circuit court later questioned the validity of that extension. The appellants did not attempt

to lodge the record in this case until August 17, 2015. In my opinion, they have failed to

demonstrate good cause for this protracted delay. See McDonald v. State, 356 Ark. 106, 146

S.W.3d 883 (2004). Therefore, the motion for rule on clerk was improvidently granted.




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