RICHARD H. ASHLEY AND J.D. ASHLEY, JR., AS PERSONAL REPRESENTATIVES OF THE ESTATE OF J.D. ASHLEY, SR.; CANDACE BAUGHMAN; AND THE ESTATE OF CHAROLETTE ASHLEY, DECEASED, APPELLANTS/CROSS-APPELLEES
TODD H. ASHLEY, APPELLEE/CROSS-APPELLANT
FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTEENTH DIVISION.
NO. 60PR-10-383. HONORABLE MORGAN E. WELCH, JUDGE.
CHLOE SOSSAMON TAYLOR.
LINKER HART, Associate Justice. Special Justice ROBERT
HUDGINS joins in this opinion. GOODSON, J., not
JOSEPHINE LINKER HART, Associate Justice
H. Ashley and J.D. Ashley, Jr., as the personal
representatives of the estate of J.D. Ashley, Sr.; Candace
Baughman; and the estate of Charolette Ashley, deceased (the
Ashleys) appeal from the circuit court's nunc pro tunc
order addressing deficiencies in an earlier order it had
issued granting an extension of time for lodging the record
in Todd H. Ashley's appeal. On cross-appeal, Todd Ashley
appeals from the circuit court's probate order approving
a settlement agreement among the Ashleys. Also pending before
us is the Ashleys' motion to dismiss Todd's appeal,
in which they argue that Todd failed to timely lodge the
record for his appeal. The Ashleys have also asked for
sanctions against Todd Ashley for filing a frivolous appeal.
On direct appeal, we affirm the circuit court's nunc pro
tunc order. On cross-appeal, we affirm the circuit
court's order approving the settlement agreement.
Further, we deny the Ashleys' motion to dismiss and their
motion for sanctions.
direct appeal, the Ashleys challenge the circuit court's
nunc pro tunc order in which the court stated that it was
clarifying an earlier order that had granted an extension of
time for lodging the record in the appeal brought by Todd
Ashley. By way of background, on October 3, 2014, Todd Ashley
filed a notice of appeal from the probate order approving the
settlement agreement. On December 8, 2014, the court reporter
averred that an extension of time was needed to prepare the
record. On December 22, 2014, Todd Ashley filed a motion
requesting that the court grant the additional time needed to
prepare the record. On January 2, 2015, the circuit court
granted the motion and extended the time to lodge the record
to April 10, 2015.
February 2, 2015, Todd Ashley filed a motion in which he
noted that the order extending the time to lodge the record
did not include the findings required by Rule 5(b) of the
Arkansas Rules of Appellate Procedure--Civil. He asked the
court to enter a nunc pro tunc order clarifying its findings
of fact relating to the order granting the extension. The
Ashleys objected, stating that the requirements of Rule 5(b)
were not present when the January 2, 2015 order was entered.
Particularly, they asserted that they had not been given an
opportunity to be heard on the motion for an extension of
time. The Ashleys noted that Rule 6 of the Arkansas Rules of
Civil Procedure sets out time in which to respond to a
motion. They asserted that according to the rule, they had
until after January 2, 2015, in which to respond to
Todd Ashley's motion to extend the time for lodging the
record but that the court instead granted the order on that
day. Following a hearing, the circuit court entered the nunc
pro tunc order on March 17, 2015. In the order, the court
stated that the requirements of Rule 5(b) were in existence
at the time the court's January 2, 2015 order was
entered. On appeal, the Ashleys argue that the circuit court
erred in entering the March 17, 2015 nunc pro tunc order
because Rule 5(b) had not been complied with at the time the
original motion for extension of time was granted.
record on appeal is due to be filed in the appellate court
within ninety days from the filing of the first notice of
appeal. Ark. R. App. P.--Civ. (5)(a). If an extension of time
is needed, Rule 5(b) provides as follows:
(1) If any party has designated stenographically reported
material for inclusion in the record on appeal, the circuit
court, by order entered before expiration of the period
prescribed by subdivision (a) of this rule or a prior
extension order, may extend the time for filing the record
only if it makes the following findings:
(A) The appellant has filed a motion explaining the reasons
for the requested extension and served the motion on ...