Novak v. J.B. Hunt Transport, CA

• Court: Arkansas Court of Appeals
• Writing for the Court: PITTMAN; MAYFIELD
• Citation: Novak v. J.B. Hunt Transport, 892 S.W.2d 526, 48 Ark.App. 165 (Ark. App. 1995)
• Decision Date: 22 February 1995
• Docket Number: No. CA,CA
• Parties: Antonia NOVAK, Appellant, v. J.B. HUNT TRANSPORT, Appellee. 94-1019.

Page 526

892 S.W.2d 526

48 Ark.App. 165

Antonia NOVAK, Appellant, v. J.B. HUNT TRANSPORT, Appellee.

No. CA 94-1019.

Court of Appeals of Arkansas En Banc.

Feb. 22, 1995.

Antonia Novak, pro se.

Joseph H. Purvis, Little Rock, for appellee.

PITTMAN, Judge.

On June 13, 1994, appellant filed a timely notice of appeal from a decision of the Arkansas Workers' Compensation Commission. However, the record was tendered to the clerk of this court more than ninety days after the filing of the notice of appeal. The Clerk refused to file the record, and the appellant has filed a motion for an order requiring that it be filed.

In support of her motion, appellant states that on September 7, 1994, she phoned the Commission office regarding her appeal and advised that the $100.00 filing fee would be mailed to the Commission; that on September 8, 1994, she was notified by mail that the transcript had been certified; that on September 9, 1994, she phoned the Commission and confirmed that the filing fee was being mailed that day; that on September 12, 1994, the filing fee was received in the Commission office; and that the Commission routed the filing fee and the transcript to the clerk of this court on September 13, 1994, one day past the September 12, 1994, ninety-day filing deadline. We do not find these circumstances to be sufficient grounds to grant appellant's motion for a rule on the clerk.

As is required in other civil actions, the record on appeal from the Workers' Compensation Commission must be filed within ninety days from the filing of the notice of appeal. Tribble v. Heartland Express & Credit General Insurance Co., 45 Ark.App. 124, 872 S.W.2d 86 (1994). The responsibility for seeing that the record on appeal is timely filed lies with the appellant or his attorney and cannot be shifted to the court appealed from or its staff. Id.; Davis v. C & M Tractor Co., 2 Ark.App. 150, 617 S.W.2d 382 (1981); see Evans v. Northwest Tire Service, 21 Ark.App. 75, 728 S.W.2d 523 (1987). We have said that in civil cases the failure to discharge that responsibility is excused only by the "most extraordinary circumstances." Davis v. C & M Tractor Co., 2 Ark.App. at 157-58, 617 S.W.2d at 386 (quoting Thomas v. Arkansas State Plant Board, 254 Ark. 997-A, 997-B, 497 S.W.2d 9, 10 (1973)). Subsequently, however, the supreme court has held that the timely filing of the record on appeal is jurisdictional and that it must dismiss an appeal where the record is not timely filed. Morris v. Stroud, 317 Ark. 628, 630, 883 S.W.2d 1, 2 (1994); see Jordan v. White River Medical Center, 301 Ark. 292, 783 S.W.2d 836 (1990).

Assuming, arguendo, that the most extraordinary of circumstances can still excuse a failure to file the record in a timely manner, we cannot find that any such circumstances have been presented in the case at bar. Unlike, for example, the "devastating Jonesboro tornado," which damaged the attorney's home and law office and which was found sufficiently extraordinary in Thomas v. Arkansas State Plant Board, supra, the appellant here simply waited to mail the check for her filing fee until a point in time so late that it was not even received by the Commission until the last day on which the record could be filed with our clerk.

Motion for rule on the clerk denied.

COOPER, MAYFIELD and ROBBINS, JJ., dissent.

MAYFIELD, Judge, dissenting.

By a 3 to 3 vote this court has today denied the appellant's pro se motion for rule on the clerk. I think the motion should be granted, and I believe the prevailing opinion has missed the point involved and fails to recognize established precedent.

No response has been filed by the appellee, and the facts involved are not in dispute. The Arkansas Workers' Compensation Commission rendered an opinion on May 13, 1994, holding against appellant's claim for compensation. A notice of appeal had been filed on June 13, 1994, but on August 29, 1994, the Commission granted the request of appellant's attorney to withdraw as counsel. On September 8, 1994, the Commission notified by mail the appellant in Rogers, Arkansas, that the transcript in her case had been certified and was ready. The appellant, however, had telephoned the Commission office on the previous day to inquire about the matter and had said that the $100 filing fee would be mailed to the Commission office so that the record could be filed in the office of the clerk of the court of appeals. Appellant followed up on September 9, 1994, to confirm that the filing fee had been placed in the mail.

The clerk of the Commission filed an affidavit in this court stating that: "The $100 filing fee was received in the WCC office on September 12, 1994, and routed to the Fiscal Department. The Fiscal Department routed the filing fee to the Clerk [of this court] on September 13, 1994." Our clerk refused to file the record because he did not think it was timely filed.

Arkansas Code Annotated § 11-9-711(b)(1)(A) (1987) provides:

The appeal to the Court of Appeals may be taken by filing in the office of the commission, within thirty (30) days from the date of the receipt of the order or award of the commission, a notice of appeal whereupon the commission under its certificate shall send to the court all pertinent documents and papers, together with a transcript of evidence and the findings and orders, which shall become the record of the cause.

Although the prevailing opinion concedes that the notice of appeal was timely filed, the reason it was timely is not apparent, and I think it might be helpful to first consider that matter. Under the above statute the time to file the notice of appeal begins to run from the date of receipt of the Commission's order or award. In this case we do not know when the appellant received the Commission's decision. We do know, however, from the record tendered to our clerk for filing, that the notice of appeal was filed by an attorney from Fayetteville who was subsequently allowed by the Commission to withdraw from the case before the record was tendered to our clerk. Assuming that the Commission's decision was mailed on the date it was filed, May 13, 1994, it surely could not have been received before May 14, 1994, by either the attorney in Fayetteville or the appellant in Rogers. If received on May 14, the 30-day period in which to file the notice of appeal would expire at the end of the day on June 13; thus, the notice of appeal filed on that date was within time. This is the same reasoning applied in the similar case of Ashcraft v. Quimby, 2 Ark.App. 174, 617 S.W.2d 390 (1981).

However, even if we assume that the decision of the Commission was received by the appellant or her attorney on the same day it was filed in Little Rock--May 13, 1994--the 30-day period would end on June 12, 1994. But that date fell on Sunday, and under Ark.R.Civ.P. 6(a) when computing any period of time prescribed by "these rules, by order of the court, or by any applicable statute," when the last day of the period falls on Sunday the period runs until the next day. Thus, the notice of appeal filed on Monday, June 13, 1994, was timely filed under Rule 6(a) as well as under our case of Ashcraft v. Quimby.

The real issue here is whether the record from the Commission was timely filed. In Davis v. C & M Tractor Co., 2 Ark.App. 150, 617 S.W.2d 382 (1981), we were called upon to determine whether the 90-day time period provided in the Rules of Appellate Procedure applied to the filing of a record in an appeal from the Workers' Compensation Commission. We noted that this was a question that usually would be decided by the Arkansas Supreme Court but in appeals from agencies or commissions the case first comes to us, citing Ward School Bus Manufacturing, Inc. v. Fowler, 261 Ark. 100, 547 S.W.2d 394 (1977), and Houston Contracting Co. v. Young, 267 Ark. 44, 589 S.W.2d 9 (1979). We then discussed Acts 252 and 253 of 1979, which provided that appeals from the Arkansas Workers' Compensation Commission would go directly to the Arkansas Court of Appeals, and noted that Arkansas Supreme Court Rule 29 had the same effect. We concluded that the record on appeal from the Commission should be filed within 90 days from the filing of the notice of appeal as provided by Rule 5 of the Rules of Appellate Procedure. That decision was based on the fact that Act 252 of 1979 said that appeals to the Commission would be allowed as in other civil actions. While the Arkansas Supreme Court did not review our holding in Davis v. C & M Tractor, the holding has never been reversed by any opinion of that court. Therefore, although neither the 1979 Acts nor Ark.Code Ann. § 11-9-711(b)(1)(A) (1987) provided for a specific period in which the record from the Commission should be filed in the appellate court, this court continues to think it should be filed within 90 days from the filing of the notice of appeal.

In the present case the last day of that period would have been September 11, 1994. However, that day fell on Sunday and under Ark.R.Civ.P. 6(a) (which I have previously discussed) the time would run to Monday, September 12. But the record was not actually tendered until the 13th. This was because the filing fee, which was received by the Commission on the last day to file the record, was not "routed" to the office of the clerk of the court of appeals until September 13. (Our clerk actually noted on the record that it was tendered on September 14.)

Although we made it clear in Davis v. C & M Tractor, supra, that it is the duty of the appellant's attorney to see that the record is filed within time, we held that because the legislative acts providing for workers' compensation appeals to be decided by the court of appeals were new and had not been interpreted before, the motion for rule on the clerk to file the record after the 90-day period should be granted. We relied upon cases of the Arkansas Supreme Court for that holding and said our decision was ...