Longley v. Gatewood , 2016 Ark. App. 365 ( 2016 )


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  •                                  Cite as 
    2016 Ark. App. 365
    
                     ARKANSAS COURT OF APPEALS
                                           DIVISION III
                                           No. CV-15-778
    
    
    JOSEPH LONGLEY and ANNETTE                        Opinion Delivered August 31, 2016
    LONGLEY (DECEASED)
                        APPELLANTS                    APPEAL FROM THE SEBASTIAN
                                                      COUNTY CIRCUIT COURT, FORT
    V.                                                SMITH DISTRICT
                                                      [NO. CV-2013-1007]
    
    CURTIS GATEWOOD and                               HONORABLE STEPHEN TABOR,
    CHRISTINE GATEWOOD, HUSBAND                       JUDGE
    AND WIFE
                        APPELLEES                     REBRIEFING ORDERED
    
    
    
                                   RITA W. GRUBER, Judge
    
           Appellant 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.
    
           Joseph and Christine are siblings.1 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
    
    
           1
            To avoid confusion, we refer to the parties by their first names.
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    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 Annette2 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.
    
             On 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 the
    
    three.
    
             Joseph 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
    
    
    
             2
             Annette suffered a stroke in May 2014 and passed away on October 17, 2014, before
    the trial.
    
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    with Joseph, despite repeated telephone calls and messages.
    
           On the 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.
    
           The 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.
    
           On 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
    
    
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    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).
    
           Here, 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.
    
           Joseph’s 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
    
    
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    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.
    
           Joseph’s 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
    
    
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    the date of this opinion to file the substituted brief. If he fails to file a complying brief within
    
    the prescribed time, the judgment may be affirmed for noncompliance with Rule 4-2. After
    
    service of the substituted brief on appellees, appellees shall have an opportunity to file a
    
    responsive brief in the time prescribed by the clerk.
    
           Rebriefing ordered.
    
           ABRAMSON and VIRDEN, JJ., agree.
    
           Smith, Cohen & Horan, PLC, by: Stephen C. Smith, for appellants.
    
           Gean, Gean & Gean, by: Roy Gean III, for appellees.
    
    
    
    
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