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Marc and Billie HEFLIN, Appellants v. Phil and Crystal BRACKELSBERG, Appellees

D.P. MARSHALL JR., Judge.

Our opinion states that the Heflins did not file a reply to the Brackelsbergs' counterclaim. 2010 Ark. App. 261, at 6, ___ S.W.3d ___, ___. We were mistaken. The Heflins have moved to supplement the record on appeal with a copy of their reply, which they styled as an answer. It turns out that the Heflins filed this pleading with the circuit clerk, but it was inadvertently omitted from the record on appeal. At our Clerk's request, the Heflins have also tendered a certified copy of this pleading.

While the motion might seem like overkill, it is probably prudent in the circumstances. We reversed and remanded in part. On remand, the circuit court must follow the letter and spirit of our decision — even if that decision contains a mistake. Pro-Comp Management, Inc. v. R.K. Enterprises, LLC, 366 Ark. 463, 466, 237 S.W.3d 20, 23 (2006); Mellinger v. Mellinger, 26 Ark. App. 233, 236, 764 S.W.2d 52, 53 (1989). This law, and our uncorrected statement, set the table for some unnecessary procedural wrangling: an argument that the Heflins were, according to our opinion, in default on the Brackelsbergs' counterclaim. Ark. R. Civ. P. 55(a) (d). There is no good reason for the parties or the circuit court to waste time on that issue.

We grant the motion and deem the record supplemented. We also hereby correct our original opinion. The Heflins filed a timely reply, styled as an answer, to the Brackelsbergs' counterclaim. That pleading, however, did not assert the Brackelsbergs' election of damage remedies. For the reasons given in our original opinion, that omission was not fatal to the Heflins' election defense because election was joined in other pleadings, briefed, argued, and decided below.

A final word to the bar. Before briefing the case, counsel should check the appeal record carefully. Make sure that it is complete and correct. Minor defects can often be cured by stipulation between counsel. If necessary, move to correct omissions in the record, or move to remand and settle it, as soon as possible after filing the record on appeal. (One such motion was filed early in this case.) Checking, and if need be correcting, the record before the briefing will help the appellate court get the opinion right in every particular the first time around.

ROBBINS and GLOVER, JJ., agree.

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HEFLIN v. BRACKELSBERG
(Apr 14, 2010)