Barnett v. Monumental General Insurance

97 S.W.3d 901, 81 Ark. App. 23, 2003 Ark. App. LEXIS 110

• Court: Court of Appeals of Arkansas
• Decided: February 12, 2003
• Docket: CA 01-1401
• Status: Published

Opinions

Larry D. Vaught, Judge.

Appellant brings this appeal from an order of summary judgment in favor of appellee. For the reasons that follow, we dismiss the appeal.

A notice of appeal should be filed within thirty days after the entry of the judgment. Ark. R. App. P. — Civ. 4(a). If it is shown that a party failed to receive notice of the judgment, the trial court may grant a fourteen-day extension. However, the extension must be requested within 180 days of the entry of the judgment. Ark. R. App. P— Civ. 4(b)(3).

In the present case, the trial court held a hearing on á motion for summary judgment in 1996. Years passed, and an order granting summary judgment was entered on May 25, 2000. The parties, apparently, were unaware that the order had been entered. Consequently, the time .allowed for filing a notice of appeal or extension expired.

When the appellants discovered that an order had been entered and the time for filing a notice of appeal had expired, they moved to vacate the judgment. Consequently, the trial court entered a new order granting summary judgment, identical to the previous one in all respects except for date, on July 20, 2001. Appellants then filed a notice of appeal from that order.

The determining question on appeal is whether the trial court had the authority to issue the duplicate order on July 20, 2001. It did not. An identical question was presented in Oak Hill Manor v. Arkansas Health Servs. Agency, 72 Ark. App. 458, 37 S.W.3d 681 (2001). There neither party was aware that an order had been entered. Despite this, we held that the trial court lacked jurisdiction to enter a duplicate order to permit the filing of a notice of appeal after the 180-day deadline had expired. In so doing we relied on and quoted authority concerning the analogous federal rules for the proposition that the 180-day deadline in Rule 4 cannot be extended by use of Rule 60 to cure problems of lack of notice.

Oak Hill Manor stands for the proposition that problems relating to lack of notice that an order has been filed are controlled entirely by Rule 4(b)(3) and that Rule 60 is simply inapplicable.¹ Consequently, we hold that the trial court lacked authority to set aside his original order and enter the duplicate order, and we must therefore dismiss this appeal.

Appeal dismissed; cross-appeal dismissed as moot.

Stroud, C.J., Robbins, and Crabtree, JJ., agree. Pittman and Bird, JJ., concur. Hart, Griffen, and Roaf, JJ., dissent.

1 The dissent argues that Oak Hill Manor, supra, was wrongly decided, and that it should not apply in this case because of a misprision by the clerk in failing to timely notify the parties when the order was entered. We have diligently examined the record and, although it is clear that there were irregularities in the entry of the judgment and the notification of the parties, there is nothing to show that these irregularities were the fault of the clerk, rather than of the trial judge and the postal service. As the dissent candidly notes, the judgment of May 25, 2000, was “inexplicably” entered. If there were in fact errors committed by the clerk in this case, they are not apparent of record.