Opinion
No. CV-17-862
09-19-2018
J. DAVID JOHN APPELLANT v. MARTIN FAITAK, PH.D. APPELLEE
Cullen & Co., PLLC, by: Tim Cullen, for appellant. Dover Dixon Horne PLLC, by: Todd Wooten, Trey Cooper, and Monte D. Estes, for appellee.
APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT
[NO. 72CV-16-106] HONORABLE JOHN C. THREET, JUDGE REBRIEFING ORDERED WAYMOND M. BROWN, Judge
Appellant appeals from the circuit court's grant of appellee's motion for summary judgment. His sole argument on appeal is that appellee is not entitled to immunity for acts that exceeded the scope of his court appointment. We are unable to address the merits of appellant's argument and order rebriefing.
A review of appellant's abstract shows that appellant failed to abstract all pertinent deposition testimony—which includes parts of deposition testimony from appellant, his ex-wife, his ex-wife's counsel, and appellee—and any of the deposition testimony from Michael Gottlieb, appellant's expert. He generally asserts that "[o]nly the deposition excerpts relevant to the judicial immunity issue are abstracted." However, the issue of judicial immunity necessarily requires a finding that appellee acted within the scope of his court-appointed role. Arkansas Supreme Court Rule 4-2(a)(5)(A) states that "[a]ll material parts of all hearing transcripts, trial transcripts, and deposition transcripts must be abstracted, even if they are an exhibit to a motion or other paper." Accordingly, any deposition testimony dealing with what appellee did or did not do—or should or should not have done—during his court-appointed role shall be abstracted. We additionally note that within the pages verified to be deposition testimony, appellant's abstract skips pages. Arkansas Supreme Court Rule 4-2(a)(5)(B) states "[n]o more than one page of a transcript shall be abstracted without giving a record page reference."
The addendum contains appellant's response to appellee's statement of undisputed material facts and amended statement of undisputed facts; however, neither appellee's statement of undisputed material facts nor the amended version is in the addendum, though both are in the record. Furthermore, the addendum does not include the report or affidavit of Michael Gottlieb. Appellee's counsel references a motion to strike at the July 18, 2017 hearing on the matter, which focused on Gottlieb's report and affidavit. The circuit court did not rule on that motion, choosing only to grant appellee's motion for summary judgment. Arkansas Supreme Court Rule 4-2(a)(8) states that "[t]he addendum shall contain true and legible copies of the non-transcript documents in the record on appeal that are essential for the appellate court to confirm its jurisdiction, to understand the case, and to decide the issues on appeal." Gottlieb's report and affidavit, which pertain to appellee's standard of care and are in the record, were before the court; the same shall be before this court in the addendum.
The addendum also includes an amended motion for summary judgment and separately-filed amende d brief in support filed on May 11, 2017, asserting judicial immunity for the first time; neither original is in the addendum. Arkansas Supreme Court Rule 4-2(a)(8)(A) states that the addendum shall contain "any other pleading or document in the record that is essential tor the appellate court to confirm its jurisdiction, to understand the case, and to decide the issues on appeal." A non-exhaustive list of examples immediately following specifically includes any superseded pleadings.
Accordingly, appellant shall file a substituted abstract, addendum, and brief curing all above-referenced deficiencies in compliance with Arkansas Supreme Court Rule 4-2. We encourage appellant's counsel to review Rule 4-2 of the Rules of the Arkansas Supreme Court and Court of Appeals to ensure that the substituted abstract, brief, and addendum comply with the rules and that no additional deficiencies are present; the above-referenced list is not exhaustive.
Rebriefing ordered.
GLADWIN and KLAPPENBACH, JJ., agree.
Cullen & Co., PLLC, by: Tim Cullen, for appellant.
Dover Dixon Horne PLLC, by: Todd Wooten, Trey Cooper, and Monte D. Estes, for appellee.
See Chambers v. Stern, 338 Ark. 332, 338-39, 994 S.W.2d 463, 466 (1999) ("The trial court must determine as a matter of law whether Dr. Stern's actions were within the scope of his court-appointed capacity, and if so, his actions taken pursuant to the appointment are entitled to judicial immunity.").