JAMES EDWARD WHITNEY v. JAMES PLUMMER

2018 Ark. 404

• Court: Supreme Court of Arkansas
• Decided: December 20, 2018
• Docket: CV-18-399
• Status: Published

Opinion

Cite as 2018 Ark. 404 SUPREME COURT OF ARKANSAS. No. CV-18-399

JAMES EDWARD WHITNEY Opinion Delivered December 20, 2018 APPELLANT PRO SE NOTICE AND ADVISEMENT V. (MOTION TO FILE NONCONFORMING BRIEF) JAMES PLUMMER [LINCOLN COUNTY CIRCUIT COURT, APPELLEE NO. 40CV-17-113]

APPEAL DISMISSED; MOTION MOOT.

ROBIN F. WYNNE, ASSOCIATE JUSTICE

Appellant James Edward Whitney appeals the denial by the circuit court of his

motion for reconsideration of an order that set a partial filing fee of $20 with respect to

Whitney’s pro se civil complaint in tort against James Plummer. Now before us is

Whitney’s motion entitled “Notice and Advisement” in which he seeks leave to file a brief

on appeal that does not conform to the rules of this court. Because it is clear from the

record that the circuit court did not err when it denied the motion for reconsideration, we

dismiss the appeal. The motion to file a nonconforming brief is moot.

The order setting the initial filing fee was entered on October 24, 2017. Whitney

did not file his request for reconsideration until March 28, 2018. The circuit court denied

the request because it was not timely filed pursuant to Rule 60(a) of the Arkansas Rules of

Civil Procedure (2017). Rule 60(a) allows a party to an action to file a motion for the court to modify or vacate a judgment, order, or decree in a civil action to correct errors or

mistakes or to prevent the miscarriage of justice. Gonder v. Kelley, 2017 Ark. 239, reh’g

denied (Sept. 14, 2017). The motion must be filed within ninety days of the date that the

judgment, order, or decree was entered, unless the error was a clerical error that may be

corrected at any time under Rule 60(b). Id. A true clerical error is “essentially one that

arises not from an exercise of the court’s judicial discretion but from a mistake on the part

of its officers (or perhaps someone else).” Francis v. Protective Life Ins. Co., 371 Ark. 285,

293, 265 S.W.3d 117, 123 (2007).

Whitney did not ask for reconsideration of the October 24, 2017 order until 155

days after the order had been entered. His motion fell under that part of Rule 60 that

allows a court to modify or correct an order to prevent a miscarriage of justice.

Accordingly, Whitney’s motion was untimely, and the circuit court was not wrong to deny

it.

HART, J., dissents.

JOSEPHINE LINKER HART, Justice, dissenting. I dissent for the reasons set out in

my dissenting opinion in Whitney v. Cruce, 2018 Ark. 373, ___ S.W.3d ___ (Hart, J.

dissenting).