PER CURIAM.
Since the amendments to these rules by our Per Curiam Order of June 23, 1997, our Committees on Criminal Practice and Civil Practice have jointly recommended additions to Rule 2 (c) of the Rules of Appellate Procedure — Criminal and Rules 3 (e) and 6 (b) of the Rules of Appellate Procedure — Civil. The purpose of these changes is to address a perceived omission in the recent amendment to cover the situation in which there are no oral proceedings to be transcribed by a court reporter.
We accept these recommendations. Effective immediately, the rules are amended, and the pertinent sections of the rules are republished below.
We express our gratitude to the members of the Civil Practice Committee and the Criminal Practice Committee for their work on this matter.
Rule 2 (c) of the Rules of Appellate Procedure — Criminal is amended and republished as set out below:
RULE 2. TIME AND METHOD OF TAKING APPEAL.
. . . .
(c) CERTIFICATE THAT TRANSCRIPT ORDERED. (1) If oral testimony or proceedings are designated, the notice of appeal shall include a certificate by the appealing party or his attorney that a transcript of the trial record has been ordered from the court reporter, and, except for good cause, that any financial arrangements required by the court reporter pursuant to Ark. Code Ann. § 16-13-510 (c) have been made. If the appealing party is unable to certify that financial arrangements have been made, then he shall attach to the notice of appeal an affidavit setting out the reason for his inability to so certify. A copy of the notice of appeal shall be mailed to the court reporter. (2) Alternatively, the notice of appeal shall include a petition to obtain the record as a pauper if, for the purposes of the appeal, a transcript is deemed essential to resolve the issues on appeal. (3) A notice of appeal is invalid if it does not contain the certification/affidavit, the pauper petition, or a statement that no oral testimony or proceedings have been designated as part of the record. (4) It shall not be necessary to file with either the notice of appeal or the designation of contents of record any portion of the reporter's transcript of the evidence of proceedings.
The Reporter's Notes accompanying Rule 2(c) are amended by adding the following:
ADDITION TO REPORTER'S NOTES, 1997 AMENDMENT: Subdivision (c)(1) and (3) have been amended to take into account the situation in which no oral testimony or proceedings have been designated as part of the record on appeal. If this is the case, the notice must contain a statement that no oral testimony or proceedings have been designated.
The portion of (c)(3) concerning the invalidity of the notice of appeal was added previously by the Supreme Court.
See per curiam order of June 23, 1997.
Subdivision (e) of Rule 3 of the Rules of Appellate Procedure — Civil is amended and republished as set out below:
RULE 3. APPEAL — HOW TAKEN
. . . .
(e) CONTENT OF NOTICE OF APPEAL OR CROSS-APPEAL. A notice of appeal or cross-appeal shall specify the party or parties taking the appeal; shall designate the judgment, decree, order or part thereof appealed from and shall designate the contents of the record on appeal. The notice shall also contain a statement that the appellant has ordered the transcript, or specific portions thereof, if oral testimony or proceedings are designated, and has made any financial arrangements required by the court reporter pursuant to Ark. Code. Ann. § 16-13-510(c). A notice of appeal is invalid if it does not contain this statement, or a statement that no oral testimony or proceedings have been designated as part of the record. The notice shall also state whether the appeal is to the Court of Appeals or to the Supreme Court; and if to the Supreme Court, the appellant shall designate the applicable subdivision of Supreme Court Rule 1-2(a) which gives the Supreme Court jurisdiction. This declaration shall be for the purpose of placing the case with one court or the other for preliminary administration. It shall not preclude the appellant from filing his or her Brief pursuant to Supreme Court Rules 4-3 and 4-4 in the alternative court if that is later determined by the appellant to be appropriate.
The Reporter's Notes accompanying Rule 3(e) are amended by adding the following:
ADDITION TO REPORTER'S NOTES, 1997 AMENDMENT: The second and third sentences of subdivision (e) have been amended to take into account the situation in which no oral testimony or proceedings have been designated as part of the record on appeal. If this is the case, the notice must contain a statement that no oral testimony or proceedings have been designated.
The portion of the third sentence concerning the invalidity of the notice of appeal was added previously by the Supreme Court.
See per curiam order of June 23, 1997. Under prior case law, the omission of the required statement from the notice of appeal was not necessarily fatal. Substantial compliance was sufficient unless the appellee was prejudiced by the appellant's failure to comply strictly with the rule.
See Rogers v. Tudor Ins. Co., 325 Ark. 226,
925 S.W.2d 395(1996).
The first sentence of Rule 6(b) is amended by adding the last clause.
RULE 6. RECORD ON APPEAL
(b) TRANSCRIPT OF PROCEEDINGS. On or before filing the notice of appeal, the appellant shall order from the reporter a transcript of such parts of the proceedings as he has designated in the notice of appeal and make any financial arrangements required by the court reporter pursuant to Ark. Code Ann. § 16-13-510 (c). If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or contrary thereto, he shall include in the record a transcript of all evidence relevant to such finding or conclusion. If the appellant has designated less than the entire record or proceeding, the appellee, if he deems a transcript of other parts of the proceedings to be necessary, shall, within ten (10) days after the filing of the notice of appeal, file and serve upon the appellant (and upon the court reporter if additional testimony is designated) a designation of the additional parts to be included. The appellant shall then direct the reporter to include in the transcript all testimony designated by appellee.
The Reporter's Notes accompanying Rule 6 are amended by adding the following:
ADDITION TO REPORTER'S NOTES, 1997 AMENDMENT. The first sentence of subdivision (b) is amended to require that the appellant not only order the transcript on or before filing the notice of appeal, but also make any financial requirements required by the court reporter for its preparation. Under Ark. Code Ann. § 16-13-510(c), the court reporter's duty to transcribe and certify the record "may be conditioned upon the payment, when requested by the court reporter, of up to fifty percent (50%) of the estimated cost of the transcript." The amendment makes Rule 6(b) consistent with Rule 3(e), which was previously amended to require that the notice of appeal state that the appellant had made the necessary financial arrangements.