FROM THE JEFFERSON COUNTY CIRCUIT COURT [NOS. 35CV-13-532 AND
35CV-15-586] HONORABLE ROBERT H. WYATT, JR., JUDGE
McKissic & Associates, PLLC, by: Gene E. McKissic, Sr.,
and Jackie B. Harris, for appellant.
Friday, Eldredge & Clark, LLP, by: Robert S. Shafer and
Jamie Huffman Jones, for appellee.
PHILLIP T. WHITEAKER, JUDGE.
Brian Skender filed two separate complaints against appellee
Union Pacific Railroad Company (UPRR) seeking relief under
the Federal Employers' Liability Act
(FELA). The Jefferson County Circuit Court
dismissed both complaints with prejudice. Skender appeals
both dismissals. We are unable to address the merits due to
deficiencies in the addendum.
case is before us for a second time after
remand. Skender, a UPRR employee, was injured
while working at a UPRR repair track in Pine Bluff, Arkansas.
He timely filed and served his first FELA complaint against
UPRR in 2013 (2013 complaint). After the statute of
limitations had run, UPRR filed a motion to dismiss,
asserting that the summons issued with the complaint was
fatally deficient. Skender denied that the summons was
defective, but asserted that if the court disagreed, the
complaint should be dismissed without prejudice under the
application of either the Arkansas savings statute or the
doctrine of equitable tolling. The circuit court granted
UPRR's motion to dismiss, finding the summons was fatally
deficient but ordered the dismissal to be without prejudice
based on the application of the Arkansas savings statute as
espoused in Clouse v. Tu, 101 Ark.App. 260, 274
S.W.3d 260 (2008). Because the circuit court ruled that the
savings statute was applicable to save Skender's claim,
it did not address Skender's equitable-tolling claim.
appealed the circuit court's dismissal of the 2013
complaint without prejudice, contending that the Arkansas
savings statute was inapplicable to FELA actions. In a
cross-appeal, Skender challenged the circuit court's
determination that the summons issued in this case was
fatally deficient. We affirmed the circuit court's
determination that the original summons was fatally
deficient. We also agreed with UPRR's contention that the
circuit court erred in applying the Arkansas savings statute
to this FELA action. However, we remanded for the circuit
court to make the requisite findings on whether equitable
tolling was available to suspend the statute of limitations
and whether dismissal with or without prejudice was
the appeal was pending, Skender refiled his FELA claim (2015
complaint).Skender reasserted his factual cause of
action alleged in the 2013 complaint, noted the previous
dismissal without prejudice, and contended that the
three-year period of limitations under FELA was suspended and
tolled. UPRR denied that Skender was entitled to FELA relief
and specifically denied that the period of limitations had
been suspended or tolled.
circuit court subsequently held a hearing on the remanded
equitable-tolling issue. After hearing arguments of counsel,
the circuit court found that Skender had not pursued his
rights diligently and had not shown any extraordinary
circumstance that stood in his way or prevented a timely
filing. As such, the circuit court concluded that Skender had
failed to prove that he was entitled to equitable tolling.
Accordingly, the circuit court dismissed both the 2013 and
2015 complaints with prejudice. Skender appeals these
dismissals, arguing that the circuit court erred in
determining that equitable tolling did not apply.
cannot reach the merits of Skender's argument because his
addendum is deficient. Rule 4-2(a)(8) of the Rules of the
Arkansas Supreme Court and Court of Appeals provides that an
appellant's addendum shall contain 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. Rule 4-2(a)(8)(A)(i)
specifically requires the addendum to contain the pleadings
as defined by Rule 7(a) of the Arkansas Rules of Civil
Procedure-including the complaint-and any motion, response,
reply, and related briefs concerning the order challenged on
appeal. Skender appeals from the dismissals of both the 2013
complaint and the 2015 complaint. While Skender's
addendum contains the pleadings filed in the refiled 2015
lawsuit, it does not contain the pleadings, motions, and
other related documents filed in the original 2013 lawsuit as
required by our rules.
on the deficiencies in the addendum, we hereby order Skender
to file a supplemental addendum that complies with our rules.
Ark. Sup. Ct. R. 4-2(b)(4) (2017) (allowing parties to file a
supplemental addendum when deficiencies do not require
complete rebriefing). The supplemental addendum shall be due
seven calendar days from the date of this order.
Klappenbach and ...