BAYIRD v. Floyd

• Decision Date: 01 May 2009
• Docket Number: No. 08-1099.,08-1099.
• Citation: 308 SW 3d 142
• Parties: John H. BAYIRD, as Administrator for the Estate of Mamie Elliott, Deceased, Appellant, v. William FLOYD, Appellee.
• Court: Arkansas Supreme Court

308 SW 3d 142

2009 Ark. 254

John H. BAYIRD, as Administrator for the Estate of Mamie Elliott, Deceased, Appellant, v. William FLOYD, Appellee.

No. 08-1099.

Supreme Court of Arkansas.

May 1, 2009.

David A. Couch and Brian G. Brooks, for appellant.

Williams & Anderson PLC, by Jess Askew III and Stephen A. Hester, Little Rock, for appellee.

PER CURIAM.

Appellant John H. Bayird, as Administrator for the Estate of Mamie Elliott, Deceased, appeals the order of the Drew County Circuit Court dismissing his complaint against Appellee William Floyd. In its order entered of record on July 29, 2008, the circuit court dismissed Floyd from the action, stating:

Upon considering as true the allegations contained in the complaint and amended complaints and all other pleadings and exhibits submitted herein, the Court finds insufficient facts to support a claim for which relief can be granted against separate defendant, William Floyd. Therefore the Motion to Dismiss should be granted pursuant to Ark. R. Civ. P. 12(b)(6).

(Emphasis added.)

Although the circuit court stated that the case was dismissed pursuant to Rule 12(b)(6), the order reflects that the court considered other pleadings and exhibits in making its ruling. As such, the motion to dismiss was converted to a motion for summary judgment. As this court has explained:

When a trial court considers matters outside the pleadings, the appellate courts will treat a motion to dismiss as one for summary judgment. Kyzar v. City of West Memphis, 360 Ark. 454, 201 S.W.3d 923 (2005). A motion to dismiss is converted to a motion for summary judgment when matters outside of the pleadings are presented to and not excluded by the court. Nielsen v. Berger-Nielsen, 347 Ark. 996, 69 S.W.3d 414 (2002).

Robbins v. Johnson, 367 Ark. 506, 510, 241 S.W.3d 747, 750 (2006) (quoting T.J. ex rel. Johnson v. Hargrove, 362 Ark. 649, 654, 210 S.W.3d 79, 81-82 (2005)). Just as in Robbins, the circuit court's order of dismissal in the present case was actually an order of summary judgment.

The record now before us is replete with pleadings filed with, and presumably considered by, the circuit court including, but not limited to, answers to the complaint and amended complaints, motions to dismiss,¹ and responses and replies to Floyd's motions to dismiss. The addendum submitted by Bayird lacks these and perhaps other relevant pleadings that are essential to our understanding of this case. The procedure to be followed when an appellant has submitted an insufficient abstract or addendum is set forth in Ark. Sup.Ct. R. 4-2(b)(3):

Whether or not the appellee has called attention to deficiencies in the appellant's abstract or Addendum, the Court may address the question at any time. If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded

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