COMMENT Reporter’s Notes to Rule 5 (1995): This rule tracks former Appellate Rule 5 without change. The Reporter’s Notes prepared in connection with former Appellate Rule 5 are set out below. Reporter’s Notes (as revised by the Court) to Rule 5: 1. Rule 5 is a slightly revised version of superseded Ark. Stat. Ann. 27-2127.1 (Supp. 1975) and superseded Rule 26A of the Arkansas Supreme Court Rules. Only minor wording changes are made and the substance of prior Arkansas law remains unchanged. Under Section (b), the order extending the time must actually
be filed prior to the expiration of the time for filing the record, whereas under prior Arkansas law, the order of extension needed only to have been made within the time allowed and not necessarily filed. 2. The 30-day limitation for the filing of the record in appeals from certain interlocutory orders is taken from superseded Ark. Stat. Ann. 27-1202 (Repl. 1962). Addition to Reporter’s Notes, 1985 Amendment: The next to last sentence of Rule 5(b) is amended to eliminate confusion that had existed regarding the interplay between Rule 4, which governs the filing of the notice of appeal, and Rule 5, which governs the time for filing the record with the clerk of the Supreme Court. As amended, Rule 5(b) provides that the time for filing the record may not be extended more than seven months from either (a) the date of entry of judgment or order, or (2) the date on which a timely postjudgment motion under Rule 4(b) has been deemed disposed of under Rule 4(c), whichever is later. See Pentron Corp. v. Delta Steel & Constr. Co., 286 Ark. 91, 689 S.W.2d 539 (1985). Addition to Reporter’s Notes, 1986 Amendment: The new language is designed to address a problem stemming from the relationship between Appellate Rules 4 and 5. Under prior practice and under certain circumstances, Rule 5 required that the record on appeal be filed before Rule 4(c) required the filing of a notice of appeal in the trial court. See Yent v. State, 650 S.W.2d 577, 279 Ark. 268 (1983) (concurring opinion). While the most recent amendment to Rule 5(b) was aimed at this anomaly, difficulties persist when the postjudgment motion is (1) limited to a single issue, although other errors are to be presented on appeal, and (2) the trial court properly takes under advisement such a motion. In such a situation, counsel for the appellant must lodge the record on appeal within seven months from the date of the original judgment in order to preserve an error not raised in the motion for new trial, even though the time for filing the notice of appeal would not begin to run until disposition of the motion, which under Rule 4(c) could occur more than seven months after entry of judgment. Under the amended rule, however, an appeal from the order disposing of the motion raises not only the issue presented by the motion, but also other issues properly preserved at trial. The time for filing the record on appeal would run from disposition of the motion. Addition to Reporter’s Notes, 2000 Amendment: New subdivision (c) requires the filing of a partial record in the appellate court in connection with a motion to dismiss or for any other intermediate relief. It reflects prior case law and thus does not work any change in appellate practice. See, e.g., Mitchell v. City of Mountain View, 304 Ark. 585, 803 S.W.2d 556 (1991); In re Estate of Wilkinson, 311 Ark. 311, 843 S.W.2d 316 (1992); Green v. Williford, 331 Ark. 533, 961 S.W.2d 766 (1998). The new provision is based on Rule 4(c) of the Arkansas Rules of Appellate Procedure—Criminal but departs from that rule by placing on the moving party the burden of transmitting the certified partial record to the appellate court. This requirement is consistent with Rule 7(b) of the Arkansas Rules of Appellate Procedure—Civil. Addition to Reporter’s Notes, 2001 Amendment: The term “trial court” in subdivisions (a),
(b) , and (c) has been replaced with “circuit court.” Constitutional Amendment 80 established the circuit courts as the “trial courts of original jurisdiction” in the state and abolished the separate chancery and probate courts. Subdivision (c) has been further revised by specifying that certification of the partial record shall be made by the clerk of “the circuit court that entered the judgment, decree, or order from which the appeal is taken.” In most cases, the circuit clerk serves
as clerk of the circuit court. However, in some counties the county clerk handles probate matters. This division of labor is discussed in the 2001 Reporter’s Note accompanying Rule 3 of the Rules of Civil Procedure. Addition to Reporter’s Notes, 2003 Amendment: Subdivision (b) has been divided into three paragraphs and revised to clarify the steps necessary to obtain an extension of time for filing the record on appeal. The first and second paragraphs do not change the circumstances under which such an extension is permissible, but the first paragraph specifies the findings that the circuit court must make. See Murphy v. Dumas, 343 Ark. 608, 36 S.W.3d 351 (2001). Under the third paragraph, which is new, an appellant may file a petition for writ of certiorari in the Supreme Court if he or she cannot obtain an extension order prior to the applicable deadline. Deleted from subdivision (b) is a provision that an appeal from an order disposing of a postjudgment motion “brings up for review the judgment, decree and any intermediate order involving the merits and necessarily affecting the judgment, as well as the order appealed from.” This language now appears in Rules 2(b) and 3(a). Addition to Reporter’s Notes, 2006 Amendment: Rule 5(b)(3) has been revised to embody the holding of Coggins v. Coggins, 353 Ark. 431, 108 S.W.3d 588 (2003) (per curiam). Before the supreme court will accept a partial record and entertain a petition for a writ of certiorari to complete the record, the appellant must exhaust all extensions available from the circuit court or show that no extension could be obtained. In the latter situation, the appellant must demonstrate that, notwithstanding a good faith effort to get the record prepared on time and secure all available extensions of the record due date from the circuit court, the appellant was unable to get an extension order entered. The appellant should make this showing with references to the partial record filed with the supreme court and, if necessary, an affidavit describing the circumstances. Addition to Reporter’s Notes, 2012 Amendment: Arkansas Rule of Appellate Procedure–Civil 5(b)(1)(E) is revised to give the circuit court authority to extend the time for filing the record on appeal when necessary for the circuit clerk to compile the record. The rule previously gave that authority to the circuit court only when necessary for the court reporter to include the stenographically reported material in the record on appeal. However, in its per curiam opinion of Bowman v. Centennial Bank, 2011 Ark. 34, the Arkansas Supreme Court noted that the rule failed to address the situation when the circuit clerk needs additional time to compile the record. To extend the time for filing the record on appeal because the circuit clerk needs additional time, the circuit court must make the same prerequisite findings under Rule 5(b)(1)(A) through (E) required for granting extension of time for filing the record when the court reporter needs additional time to compile the record.
Reporter’s Notes (2019): The rule was amended to measure both the time to file the record and an extension to file the record from the date of the first notice of appeal. Paragraph (a) was amended to provide that the record for interlocutory appeals of orders under Rule 2 (a)(6) or (7) is to be filed within 30 days of the filing of the first notice of appeal rather than the date of entry of the order being appealed. Paragraph (b)(2) was amended to change the beginning point for measuring extensions from the date of the judgment or order being appealed to the date of the filing of the first notice of appeal.
