FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT
[NO. CV-2013-1007] HONORABLE STEPHEN TABOR, JUDGE
Cohen & Horan, PLC, by: Stephen C. Smith, for appellants.
Gean & Gean, by: Roy Gean III, for appellees.
W. GRUBER, Judge
Joseph Longley appeals from an order of the Sebastian County
Circuit Court setting aside a deed and quieting title to
certain property in appellee Christine Gatewood subject to
the marital interest of appellee Curtis Gatewood, her
husband. On appeal, Joseph contends that the trial court
erred, first, in allowing his counsel to withdraw on the
morning of trial in violation of Rule 64(b) of the Arkansas
Rules of Civil Procedure and, second, in not properly
considering his defense of laches. Because of a flagrantly
deficient abstract, we order rebriefing.
and Christine are siblings. Their uncle, Clarence Wilson,
purchased the property in dispute at 600 North 20th Street in
Fort Smith on May 3, 1996. The deed transferring the property
lists the grantees as Clarence, Frances M. Longley
(Clarence's sister and Christine and Joseph's
mother), and Christine as joint tenants with the right of
survivorship. On December 18, 2000, a warranty deed
purporting to transfer the property to Joseph and
Annette Longley-and appearing to contain the
notarized signatures of Clarence, Frances, and Christine-was
filed of record in Sebastian County. Joseph, Annette, and
their children began residing at the property on December 18,
2000, and Joseph has been in continuous possession of the
property since that time.
February 7, 2003, Frances passed away, and on March 20, 2013,
Clarence passed away. Seven months after Clarence's
death, on October 17, 2013, Christine and Curtis filed a
petition against the Longleys to set aside/cancel the deed,
alleging that Christine's signature on the 2000 deed had
been forged, that she had not discovered the deed until after
Clarence's death, and that she should be the sole record
owner of the property because Frances and Clarence had both
passed away, leaving her the owner as the sole survivor of
retained James Filyaw to represent him and his wife. It
appears that the trial was continued several times at
Filyaw's request due to Joseph's unavailability and
that in January 2015, Filyaw filed a petition to withdraw due
to Joseph's continued lack of cooperation and
communication. Filyaw withdrew the motion less than a week
after having filed it, indicating that the communication
problems had been resolved. However, on March 24, 2015,
Filyaw filed a second petition to withdraw, again alleging
difficulty communicating with Joseph, despite repeated
telephone calls and messages.
day of trial, April 16, 2015, the trial court first addressed
Filyaw's petition to withdraw, hearing argument from
Filyaw and from Joseph. The court then allowed Filyaw to
withdraw. The trial proceeded with Joseph representing
himself. Joseph cross-examined two of Christine's
witnesses: Christine and the notary for the 2000 deed. He
also called two witnesses-his adult daughters-and he
testified on his own behalf. At the close of the trial, the
court gave the parties the opportunity to submit posttrial
briefs, which both parties did. One of the defenses Joseph
argued in his brief was laches; he did not address the
court's decision allowing Filyaw to withdraw.
trial court entered an order on June 8, 2015, finding that
the signature on the 2000 deed purporting to be that of
Christine Gatewood was fraudulent and that the defense of
laches was neither pled nor established by the evidence. The
court found that the deed was "held for naught" and
quieted title to the property in Christine Gatewood, subject
to the marital interest of Curtis Gatewood. On June 15, 2015,
the court entered an identical amended order except with
regard to the defense of laches, which the court found had
not been established by the evidence. Joseph filed a timely
notice of appeal.
appeal, Joseph argues that the trial court erred in allowing
his counsel to withdraw on the morning of trial in violation
of Rule 64(b) of the Arkansas Rules of Civil Procedure and in
failing to properly consider his defense of laches. We are
unable to reach the merits of his appeal, however, because
his abstract is flagrantly deficient. Rule 4-2(a)(5) of the
Rules of the Supreme Court and Court of Appeals requires an
appellant to create "an abstract of the material parts
of all the transcripts . . . in the record. Information is
material if the information is essential for the appellate
court to confirm its jurisdiction, to understand the case,
and to decide the issues on appeal." Ark. Sup. Ct. R.
4-2(a)(5) (2015).The abstract "shall be an impartial
condensation, without comment or emphasis . . . ." Ark.
Sup. Ct. R. 4-2(a)(5)(B).
although Joseph's first point on appeal is that the trial
court erred in allowing Filyaw to withdraw in violation of
Ark. R. Civ. P. 64(b), his abstract of Filyaw's argument,
Joseph's response, and the court's oral reasoning and
ruling on the motion are a far cry from being an accurate and
"impartial condensation" of the record. Indeed, the
multitude of sentences left out causes the argument that
actually is abstracted to appear completely out of context.
Moreover, the abstract contains no objection to the
court's decision to allow Filyaw to withdraw, which is
required to perfect a point for appeal. Advance Am.
Servicing of Ark., Inc. v. McGinnis, 375 Ark. 24, 289
S.W.3d 37 (2008). This court will not entertain an argument
when it cannot be determined from the abstract what arguments
were made to the lower court. Porter v. Porter, 329
Ark. 42, 44, 945 S.W.2d 376, 377 (1997). An abstract that
includes all of the arguments on the motion, in addition to
the court's statements regarding the motion, is critical
for us to determine whether the point is preserved and to
determine the merits of this point on appeal.
second point on appeal, that the trial court failed to
properly consider his defense of laches, involves review of
the trial court's decision of an equitable doctrine
premised on some detrimental change in position made by one
party in reliance upon the action or inaction of the other
party. Anadarko Petroleum v. Venable, 312 Ark. 330,
850 S.W.2d 302 (1993). The first requirement in laches is
that the party have knowledge of his or her rights and the
opportunity to assert those rights. Carwell Elevator Co.
v. Leathers, 352 Ark. 381, 391, 101 S.W.3d 211, 218-19
(2003). The doctrine operates to bar an action by a party who
has "sat on his rights, " i.e., purposely or
negligently failed to assert a claim for so long that to
permit it now would disadvantage prejudicially an opposing
party. Massongill v. Cty. of Scott, 337 Ark. 281,
287, 991 S.W.2d 105, 109 (1999). The application of laches is
based on the particular circumstances of each case and is a
question of fact for the trial court. Adams v.
Howard, 2014 Ark.App. 328, at 6, 436 S.W.3d 473, 477. In
order for this court to review the trial court's decision
on laches, we must be able to review all material testimony.
abstract of the testimony is woefully inadequate. As an
example, Christine's testimony in the record covers
twenty pages. The abstract of her testimony is barely a page
long. Joseph has only partially abstracted the other
witnesses' testimony, also. And, Joseph has failed to
abstract any of his own testimony. The burden is on the
appealing party to provide both a record and an abstract
sufficient for appellate review. Porter, 329 Ark. at
44, 945 S.W.2d at 377. Joseph has failed to do this.
Accordingly, we order him to submit a substituted brief that
contains a revised abstract. The abstract should be
sufficient for this court to reach the merits of the case by
providing an impartial condensation of the witnesses'
testimony, the attorneys' arguments, and the court's
rulings that are necessary for us to understand the questions
on appeal in accordance with our rules. Joseph has fifteen
days from the date of this opinion to file the substituted
brief. If he fails ...