Boatmen's Trust Co. of Ar v. Housing Authority of Little Rock, 00-1120

• Decision Date: 11 October 2001
• Docket Number: 00-1120
• Citation: 57 S.W.3d 132
• Parties: BOATMEN'S TRUST COMPANY OF ARKANSAS, GUARDIAN OF THE ESTATE OF JAMES D. HENDERSON, A MINOR, AND YOLANDA HENDERSON, APPELLANTS, VS. HOUSING AUTHORITY OF THE CITY OF NORTH LITTLE ROCK, et al., APPELLEES. 00-1120 Arkansas Supreme Court 11 October 2001 APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, NO.CHRIS PIAZZA, JUDGE, AFFIRMED. W.H. "Dub" Arnold, Chief Justice. On
• Court: Arkansas Supreme Court

BOATMEN'S TRUST COMPANY OF ARKANSAS, GUARDIAN OF THE ESTATE OF JAMES D. HENDERSON, A MINOR, AND YOLANDA HENDERSON, APPELLANTS VS HOUSING AUTHORITY OF THE CITY OF NORTH LITTLE ROCK, et al., APPELLEES

00-1120

Arkansas Supreme Court

11 October 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, NO. CIV-96-12847, HON. CHRIS PIAZZA, JUDGE, AFFIRMED.

W.H. "Dub" Arnold, Chief Justice.

On May 4, 1990, 22-month-old James D. (J.D.) Henderson suffered sever scald burns while in the bathtub of the apartment in which he lived. J.D. suffered third-degree scald burns over 50 percent of his body, requiring ten months of hospitalization. While his medical bills total almost one million dollars already, J.D. continues to suffer pulmonary problems, mental retardation, subsequent scarring, and other disabilities caused by the burns. J.D. had been placed in the bathtub by his mother, Yolanda Henderson, in, according to her, about one inch of tepid water. She maintains that she ran out of the bathroom to grab a towel for J.D.; and, while getting the towel, she heard J.D. scream. She states that she immediately ran to the bathroom where she found the tap water running full blast, lifted J.D. out of the tub, and immediately called 911.

Appellants sued the Housing Authority of the City of North Little Rock/Audubon Indemnity Company for failure to maintain and properly inspect the water heater in the Henderson apartment building and for failure to warn Ms. Henderson of the risks and dangers associated with the residential water heater. Appellants sued Rheem Manufacturing Company (Rheem) for distributing a defective residential water heater and for failing to warn of the dangers associated with the "liquid fire" coming out of J.D.'s faucet.

Appellants also sued NorAm, the provider of gas service to appellants' residence because, appellants contend, in providing gas NorAm failed to warn its customers and intended users of the dangers created by scalding tap water. Finally, appellants sued Crane Company (Crane), the manufacturer of the hot water control handle in the appellants' apartment, under theories of negligence, strict liability, and breach of warranties.

The trial court found that J.D.'s mother's actions constituted an intervening cause which barred the minor's claims against the landlord, the fixture manufacturer, the water heater manufacturer, and the utility. Appellant's appealed to the Arkansas Court of Appeals who, by per curiam, ordered appellants to revise their brief and file a substitute brief due to flagrant deficiencies in their abstract. The per curiam issued by the court of appeals noted the particular deficiencies and gave specific guidance of how to cure those deficiencies. Appellants then filed a substituted brief, and the case was assigned to this Court. This appeal asserts that the trial court erred in granting summary judgment in favor of the appellees. We hold that appellants' abstract continues to be flagrantly deficient and, therefore, affirm the case.

It is well established that the abstract is the record for purposes of appeal, and the burden is on the appealing party to provide both a sufficient record and abstract for appellate review. See Warnock v. Warnock, 336 Ark. 506, 988 S.W.2d 7 (1999); City of West Memphis v. City of Marion, 332 Ark. 421, 965 S.W.2d 776 (1998). Our review on appeal is limited to the record as abstracted, and we will not reach the merits of an issue when the documents or proceedings that are necessary for an understanding of the issue are not abstracted. Blunt v. Cartwright, 342 Ark. 662, 30 S.W.3d 737 (2000); Luttrell v. City of Conway, 339 Ark. 408, 5 S.W.3d 464 (1999). Rule 4-2(a)(6) of the Arkansas Supreme court Rules requires that an abstract contain "such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the Court for decision." A transcript of a hearing on a motion that is the subject of an appeal is a material part of the proceedings that must be abstracted. See Warnock, 336 Ark. 506,988 S.W.2d 7. The purpose of an abstract is to give us an understanding of the issues on appeal. City of West Memphis, 332 Ark. 421, 965 S.W.2d 776. We may affirm for noncompliance with the rule where there is a flagrantly deficient abstract. Id. The inherent logic of this rule is that there are seven justices on our Court, but only one record. Cosgrove v. City of West Memphis, 327 Ark. 324, 938 S.W.2d 827 (1997). Mere references to the transcript scattered in the brief are insufficient. Adams v. State, 276 Ark. 18, 631 S.W.2d 828 (1982).

It is clear from the abstract that appellants are not in compliance with the rule. First, appellants have simply photocopied exhibits that total over 250 pages and have attached them to the addendum, providing only a short description of the exhibits in the abstract. This Court has repeatedly held that where a matter can be reduced to words, it must be abstracted in words. In the Matter of the Estate of Brumley, 323 Ark. 431, 914 S.W.2d 735 (1996). A review of the materials in appellants' addendum reveal that most of the documents, with the exception of a scald chart and a copy of an advertisement, are either articles or studies that can readily be reduced to words and properly abstracted. This Court has previously stricken an appellant's exhibits where they could be abstracted in words but were not....