Lord v. Mazzanati

2 S.W.3d 76, 339 Ark. 25, 1999 Ark. LEXIS 530
CourtSupreme Court of Arkansas
DecidedOctober 21, 1999
Docket99-163
StatusPublished
Cited by45 cases

This text of 2 S.W.3d 76 (Lord v. Mazzanati) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lord v. Mazzanati, 2 S.W.3d 76, 339 Ark. 25, 1999 Ark. LEXIS 530 (Ark. 1999).

Opinions

TOM Glaze, Justice.

This case arose from a neighborhood dispute ce. John and Sue Lord’s moving a mobile home onto their property in the Lakewood Estates No. 1 Subdivision to Lake Village. The mobile home was to serve as their dwelling. O. B. and Ann Mazzanti and other property owners (hereafter collectively referred to as the Mazzantis) in Lakewood Estates No. 1 objected to the Lords’ mobile home, stating it violated the subdivision’s bill of restrictive covenants. Unpersuaded by the Mazzantis’ assertions, the Lords continued with plans to make the mobile home their dwelling, causing the Mazzantis to file this suit in Chicot County Chancery Court.

On August 27, 1997, the Mazzantis sought an injunction ordering the Lords to remove their structure and to pay the Mazzantis’ attorneys’ fees. The Lords answered, denying the Mazzantis’ claims, and after a full trial on January 9, 1998, the chancellor entered his order with findings of fact and conclusions of law in favor of the Mazzantis on June 10, 1998. The Lords filed a notice of appeal and obtained a timely extension to docket their appeal to December 1, 1998, past the ninety-day-limitation requirement provided in Ark. R. App. P. —Civil 5(a). However, when December 1 came, the Lords dismissed their appeal.

It was on or about December 1, 1998, that the chancellor became aware that his original decree of June 10, 1998, contained clerical errors. He corrected the errors by entering an amended decree, which he signed on December 1, 1998, and entered on December 3, 1998. In short, the chancellor’s original decree contained internal inconsistencies, whereby the first page of the decree accurately identified the Lords as the defendants, finding that their property was subject to the Lakewood Estates restrictive covenants; however, on page two, the plaintiffs Mazzantis were mistakenly identified as the defendant owners of the mobile home and ordered to remove it. The decree also erred in ordering the Mazzantis, who were the prevailing plaintiffs, to pay the Lords’ attorney’s fees. In his amended decree, the chancellor merely caused his decree to reflect the original findings of fact and conclusions of law filed on June 10, 1998, which found that the Lords had breached subdivision restrictive covenants and ordered them to remove their dwelling. The chancellor’s amended decree further corrected the original decree to show the Lords as losing party defendants and ordering them to pay the Mazzantis’ $2,500.00 in attorneys’ fees.

The Lords bring this appeal from the chancellor’s December 3 amended decree, arguing generally that the chancellor had no authority under Ark. R. Civ. E 60(a) to amend or modify his decree after ninety days had passed since its entry.1 In support of their argument, the Lords cite our cases of Ross v. Southern Farm Bureau Cos. Ins. Co., 333 Ark. 227, 968 S.W.2d 622 (1998), and Phillips v. Jacobs, 305 Ark. 365, 807 S.W.2d 923 (1991). The Mazzantis rejoin, citing Arkansas precedents extending back over one hundred and fifty years that hold that trial courts have the inherent authority to correct a decree to accurately reflect the judgment' that was actually rendered. See Rossi v. Rossi, 319 Ark. 371, 892 S.W.2d 246 (1995) (a trial court may “enter an order nunc pro tunc when the record is being made to reflect that which occurred but was not recorded due to a misprision of the clerk”); Fitzjarrald v. Fitzjarrald, 233 Ark. 328, 344 S.W.2d 584 (1961) (holding that “where the entry through some plain error fails to correspond with the judgment that was actually rendered, the court can at a later term correct the judgment”); King & Houston v. State Bank, 9 Ark. 185 (1848) (noting the “authority of the court... to amend in whatever may be necessary to make the record speak the truth”); Harrison v. Bradford, 9 Ark. App. 156, 655 S.W.2d 466 (1983) (the court has power “to correct the record to the extent of making it conform to the action which was in reality taken at the time”).2

In 1979, this court adopted Ark. R. Civ. P. 60, specifically Rule 60(a) in issue here, which continues Arkansas’s settled practice of allowing a trial court to correct clerical errors at any time. Our Rule 60(a), which is identical to Fed. R. Civ. P. 60(a),3 reads as follows:

Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own motion or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court and thereafter while the appeal is pending may be so corrected with leave of the appellate court. (Emphasis added.)

Rule 60(a) is merely a restatement of Arkansas’s well-settled law, empowering the trial court to enter nunc pro tunc judgments to cause the record to speak the truth, whether in criminal or civil cases. See Lovett v State, 267 Ark. 912, 591 S.W.2d 683 (1980); McPherson v. State, 187 Ark. 872, 63 S.W.2d 282 (1933); Richardson v. State, 169 Ark. 167, 273 S.W. 367 (1925). Just recently we upheld a trial court’s authority to enter an order nunc pro tunc in a criminal case when more than a year and a half had passed since the original judgment had been filed and mandate had issued. McCuen v. State, 338 Ark. 631, 999 S.W.2d 682 (1999). While we noted in McCuen that Rule 60(a) itself does not specifically refer or apply to a criminal case, it is obvious that Rule 60(a) does apply to civil cases, and its plain language adopts the same longstanding rule utilized in all cases — that trial courts may correct clerical errors at any time. In these circumstances, a trial court’s power to correct mistakes or errors is to make the record speak the truth, but not to make it speak what it did not speak but ought to have spoken. See Chastain v. Davis, 294 Ark. 134, 741 S.W.2d 632 (1987); Fitzjarrald, 233 Ark. 328, 344 S.W.2d 584; Reves v. Reves, 21 Ark. App. 177, 730 S.W.2d 904 (1987), overruled on other grounds, 26 Ark. App. 37, 759 S.W.2d 570 (1988).

As already noted above, Fed. R. Civ. P. 60(a) is identical to Arkansas’s Rule 60(a), and the federal courts have reached the same conclusion we have, namely, that the rule permits the correction of clerical mistakes and that the power may be exercised at any time, either on motion or on the court’s own initiative, so the judgment or record will be made to speak the truth but not made to say something other than what originally was pronounced.

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Bluebook (online)
2 S.W.3d 76, 339 Ark. 25, 1999 Ark. LEXIS 530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lord-v-mazzanati-ark-1999.