ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ROBERT D. HOLLOWAY,

APPELLANT

v.

ARKANSAS STATE OF BOARD OF ARCHITECTS

APPELLEE

CA01-767

SEPTEMBER 12, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT,

[NO CV-00-4562]

HON. DAVID B. BOGARD

DISSENTING OPINION TO GRANT OF MOTION TO DISMISS APPEAL

ANDREE LAYTON ROAF, Judge

I must strongly disagree with this court's determination that Ark. R. App. P.-Civ. 5(b) and Murphy v. Dumas, 343 Ark. 608, 36 S.W.3d 351 (2001), require it to dismiss this appeal.

Murphy v. Dumas was handed down on February 1, 2001, and involved, as does the instant case, an order extending the time for lodging the record that was entered by the trial court without a request from the appellant. The contents of the order in Murphy v. Dumas are not disclosed in the supreme court's per curiam opinion, however, the court noted that it was entered without a request by the Murphys, a hearing, notice to the Dumases, and findings by the trial court, and concluded that the order violated Rule 5(b). The court further noted that the record had not yet been filed as of the writing of the opinion. Although the supreme court denied the appellee's motion to dismiss, it cautioned that "henceforth we will strictly enforce the requirements of Rule 5(b)."

Three weeks after Murphy v. Dumas was handed down, the trial court entered theorder of extension that is at issue in this case, a month before the time to file the record had expired. In this regard, the trial court's court reporter has provided an affidavit acknowledging that it is her "standard practice to prepare extension orders in the cases appealed in this division," that she did so in this case, procured the judge's signature, and mailed file-marked copies of the order to counsel for both sides with cover letters dated February 22, 2001, the same date the order was entered. Only after the record was timely lodged on July 11, 2001, did the appellee Arkansas State Board of Architects file its Motion to Dismiss Appeal, on July 18, 2001.

There are at least two factors that distinguish this case from Murphy v. Dumas. First, the trial court here made explicit findings in the extension order that the transcript had been timely ordered and that an extension of time was necessary for the inclusion in the record of the stenographically reported proceedings. Most importantly, the appellee has waited until the record was lodged to file its motion to dismiss, although it had received notice of the extension order immediately upon its entry some five months earlier. To penalize the appellant for the trial court's action is both unnecessary and uncalled for under these circumstances, particularly in light of the supreme court's holding in Dugal Logging, Inc. v. Arkansas Pulpwood, 336 Ark. 55, 984 S.W.2d 410 (1999), that appellee's motion to dismiss an appeal for similar reasons "was not timely filed" where it was filed after the record was lodged. This holding is neither explicitly nor implicitly overturned by Murphy v. Dumas, and I would deny the appellee's motion to dismiss appeal.