Ashley v. Ashley, 041416 ARSC, CV-15-362

Docket Nº:CV-15-362
Opinion Judge:JOSEPHINE LINKER HART, Associate Justice
Party Name:RICHARD H. ASHLEY AND J.D. ASHLEY, JR., AS PERSONAL REPRESENTATIVES OF THE ESTATE OF J.D. ASHLEY, SR.; CANDACE BAUGHMAN; AND THE ESTATE OF CHAROLETTE ASHLEY, DECEASED APPELLANTS/CROSS-APPELLEES v. TODD H. ASHLEY APPELLEE/CROSS-APPELLANT
Attorney:Chisenhall, Nestrud & Julian, P.A., by: Jim L. Julian; and The Law Office of Bruce H. Phillips, PLLC, by: Bruce H. Phillips, for appellants. Todd H. Ashley, pro se appellee.
Judge Panel:Special Justice Robert Hudgins joins in this opinion. Goodson, J., not participating.
Case Date:April 14, 2016
Court:Supreme Court of Arkansas
 
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2016 Ark. 161

RICHARD H. ASHLEY AND J.D. ASHLEY, JR., AS PERSONAL REPRESENTATIVES OF THE ESTATE OF J.D. ASHLEY, SR.; CANDACE BAUGHMAN; AND THE ESTATE OF CHAROLETTE ASHLEY, DECEASED APPELLANTS/CROSS-APPELLEES

v.

TODD H. ASHLEY APPELLEE/CROSS-APPELLANT

No. CV-15-362

Supreme Court of Arkansas

April 14, 2016

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTEENTH DIVISION [NO. 60PR-10-383] HONORABLE MORGAN E. WELCH, JUDGE

Chisenhall, Nestrud & Julian, P.A., by: Jim L. Julian; and The Law Office of Bruce H. Phillips, PLLC, by: Bruce H. Phillips, for appellants.

Todd H. Ashley, pro se appellee.

JOSEPHINE LINKER HART, Associate Justice

Richard H. Ashley and J.D. Ashley, Jr., as the personal representatives of the estate of J.D. Ashley, Sr.; Candace Baughman; and the estate of Charolette Ashley, deceased (the Ashleys) appeal from the circuit court's nunc pro tunc order addressing deficiencies in an earlier order it had issued granting an extension of time for lodging the record in Todd H. Ashley's appeal. On cross-appeal, Todd Ashley appeals from the circuit court's probate order approving a settlement agreement among the Ashleys. Also pending before us is the Ashleys' motion to dismiss Todd's appeal, in which they argue that Todd failed to timely lodge the record for his appeal. The Ashleys have also asked for sanctions against Todd Ashley for filing a frivolous appeal. On direct appeal, we affirm the circuit court's nunc pro tunc order. On cross-appeal, we affirm the circuit court's order approving the settlement agreement. Further, we deny the Ashleys' motion to dismiss and their motion for sanctions.

On direct appeal, the Ashleys challenge the circuit court's nunc pro tunc order in which the court stated that it was clarifying an earlier order that had granted an extension of time for lodging the record in the appeal brought by Todd Ashley. By way of background, on October 3, 2014, Todd Ashley filed a notice of appeal from the probate order approving the settlement agreement. On December 8, 2014, the court reporter averred that an extension of time was needed to prepare the record. On December 22, 2014, Todd Ashley filed a motion requesting that the court grant the additional time needed to prepare the record. On January 2, 2015, the circuit court granted the motion and extended the time to lodge the record to April 10, 2015.

On February 2, 2015, Todd Ashley filed a motion in which he noted that the order extending the time to lodge the record did not include the findings required by Rule 5(b) of the Arkansas Rules of Appellate Procedure–Civil. He asked the court to enter a nunc pro tunc order clarifying its findings of fact relating to the order granting the extension. The Ashleys objected, stating that the requirements of Rule 5(b) were not present when the January 2, 2015 order was entered. Particularly, they asserted that they had not been given an opportunity to be heard on the motion for an extension of time. The Ashleys noted that Rule 6 of the Arkansas Rules of Civil Procedure sets out time in which to respond to a motion. They asserted that according to the rule, they had until after January 2, 2015, 1 in which to respond to Todd Ashley's motion to extend the time for lodging the record but that the court instead granted the order on that day. Following a hearing, the circuit court entered the nunc pro tunc order on March 17, 2015. In the order, the court stated that the requirements of Rule 5(b) were in existence at the time the court's January 2, 2015 order was entered. On appeal, the Ashleys argue that the circuit court erred in entering the March 17, 2015 nunc pro tunc order because Rule 5(b) had not been complied with at the time the original motion for extension of time was granted.

The record on appeal is due to be filed in the appellate court within ninety days from the filing of the first notice of appeal. Ark. R. App. P.–Civ. (5)(a). If an extension of time is needed, Rule 5(b) provides as follows:

(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 by writing;

(D) The appellant, in compliance with [Arkansas Rules of Appellate Procedure–Civil] Rule 6(b), has timely ordered the stenographically reported material in the record on appeal or for the clerk to compile the record; and

(E) An extension of time is necessary for the court reporter to include the stenographically...

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