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Adams v. Moody

Court of Appeals of Arkansas, Division IV

December 13, 2017

JOHN ADAMS AND MARIE ADAMS, APPELLANTS
v.
BILL MOODY, APPELLEE

         APPEAL FROM THE BAXTER COUNTY CIRCUIT COURT [NO. 03CV-05-383] HONORABLE GORDON WEBB, JUDGE

          John P. Adams and Anne Marie Adams, pro se appellants.

          Sanders, Morgan & Clarke PLLC, by: Roger L. Morgan and Robert S. Clarke, for appellee.

          Gruber, C.J., and Harrison, J., agree.

          BART F. VIRDEN, JUDGE

         Appellants John and Marie Adams appeal from the Baxter County Circuit Court's order finding them in contempt for violating a previous order instructing them to comply with restrictive covenants and ordering them to pay $5, 000 in damages to appellee Bill Moody, along with attorney's fees and costs in the amount of $7, 710. The trial court also found that there was insufficient evidence on which to find in favor of the Adamses on their counterclaim. The Adamses argue that the trial court erred in its decision. Because of deficiencies in the Adamses' abstract, brief, and addendum, we order rebriefing.

         I. Procedural History

         This case began with a complaint filed by Moody in December 2005 against his neighbors, the Adamses, for breach of restrictive covenants. An order was entered on April 21, 2008, finding the Adamses in violation of the restrictive covenants and ordering them to comply with restrictive covenants by removing one structure and debris within a certain time frame and by finishing all the structures on their property and bringing them into full compliance with the restrictive covenants within a certain time frame. The Adamses appealed to this court from the April 2008 order, and it was affirmed on June 17, 2009. Adams v. Moody, 2009 Ark.App. 474, 324 S.W.3d 348.

         Subsequently, Moody filed numerous petitions for contempt, and the trial court found the Adamses in contempt on multiple occasions. After having granted numerous continuances, the trial court finally held a hearing and issued its December 7, 2016 order granting Moody's most recent motion for contempt for continued noncompliance with the April 2008 order. The trial court ordered the Adamses to bring their structures into full compliance by June 1, 2017, and ordered them to pay $5, 000 in damages and $7, 710 in attorney's fees and costs by June 1, 2017. The trial court denied the Adamses' "Counter Complaint, " in which they alleged that Moody himself had violated the restrictive covenants. The Adamses timely appealed from this order, but we cannot reach the merits at this time due to briefing deficiencies.

         I. Briefing Deficiencies

         A. Abstract

         Arkansas Supreme Court Rule 4-2(a)(5) provides that the appellant shall create an abstract of the material parts of all the transcripts in the record. Information in a transcript 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). The abstract shall be an impartial condensation, without comment or emphasis, of the transcript. Ark. Sup. Ct. R. 4-2(a)(5)(B). The abstract must not reproduce the transcript verbatim. Id. In abstracting testimony, the first person ("I"), rather than the third person ("He" or "She"), shall be used. Id. The question-and-answer format shall not be used. Id. In a second or subsequent appeal, material information from all transcripts filed in any prior appeal must be abstracted. Ark. Sup. Ct. R. 4-2(a)(5)(C).

         Although there are 152 pages of testimony in the record, the Adamses included "excerpts" comprising four full pages. The Adamses abstracted only testimony that they believed was favorable to them and completely omitted Moody's thirty-three pages of testimony. The ...


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