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Sikora v. Bogard

Court of Appeals of Arkansas, Divisions I, IV

December 14, 2016

STEPHANIE SIKORA APPELLANT
v.
SHALON BOGARD AND PAULETTE EVERETT APPELLEES

         APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION [NO. 60CV-15-4141] HONORABLE TIMOTHY DAVIS FOX, JUDGE

         SUBSTITUTED OPINION ON GRANT OF PETITION FOR REHEARING; AFFIRMED; MOTIONS MOOT

          BART F. VIRDEN, Judge

         Appellees Shalon Bogard and Paulette (or Paula) Everett filed an action against appellant Stephanie Sikora in the civil division of the Pulaski County District Court to regain possession of their dog "Iggy." The district court entered judgment for appellees, and Sikora appealed to the Pulaski County Circuit Court. The circuit court dismissed the appeal after expressing doubt that the appeal had been perfected pursuant to Arkansas District Court Rule 9. On appeal to this court, Sikora argues that the circuit court erred by dismissing her appeal and denying her motions for a continuance. We affirm the circuit court's dismissal because Sikora failed to strictly comply with Rule 9. [1]

         I. Facts

         The record shows that on August 21, 2015, the district court entered judgment for appellees. Sikora sought to appeal that decision to the circuit court. On September 3, 2015, Sikora filed an affidavit attesting that the district court clerk had failed to prepare and provide a certified copy of the docket sheet. Sikora subsequently filed a copy of the district court's "Court Docket for August 21, 2015." The docket indicates that an action entitled "Shalon Bogard & Paula Everette v. Stephanie Sikora" was filed on February 19, 2015. Handwriting appears below the word "Judgment" and provides the following:

Judgment for plaintiff[.] Order of delivery [of] dog ("Iggy" or "Elliott") granted[.] Transfer of dog from defendant to plaintiff shall be stayed pending appeal subject to defendant maintaining care, custody and control of dog during pendency of appeal and refraining from moving dog outside [the] jurisdiction of this Court [.]

         II. Arkansas District Court Rule 9

         District Court Rule 9, which governs appeals to the circuit court, previously required a plaintiff to refile his or her complaint and plead all of his or her claims in the circuit court, but the rule was silent on the consequences of failing to replead. Ark. Dist. Ct. R. 9(c)(1). In Circle D Contractors, Inc. v. Bartlett, 2013 Ark. 131, our supreme court held that the requirement that a plaintiff refile the complaint in the circuit court was procedural, not jurisdictional; thus, only substantial compliance was required. Rule 9(b)(1) was amended in 2014 to address the lack of guidance on the repleading issue. The current version of Rule 9(b)(1) provides that

[a] party may take an appeal from a district court by filing with the clerk of the circuit court having jurisdiction of the appeal (i) a certified copy of the district court's docket sheet, which shows the entry awarding judgment and all prior entries, or a certified copy of the record of the district court proceedings consisting of all documents and motions filed in the district court, and (ii) a certified copy of the complaint filed in the district court, or, if filed in accordance with Rule 10 of these rules, a certified copy of the claim form filed in the small claims division of the district court.

Ark. Dist. Ct. R. 9(b)(1) (emphasis added).

         Rule 9(b)(2) provides that

[i]f the clerk of the district court does not prepare or certify a record for filing in the circuit court in a timely manner, a party may take an appeal by filing an affidavit in the office of the circuit clerk, within forty (40) days from the date of the entry of the judgment in the district court, showing (i) that the appealing party has requested the clerk of the district court to prepare and certify the record for purposes of appeal and (ii) that ...

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