Kimble v. Gray

Per Curiam. The appellee, Robert Gray, Sr., moves to dismiss the appeal filed by the appellant, Rhonda Kimble, on the grounds that Ms. Kimble did not timely file a notice of appeal in accordance with Arkansas Rule of Appellate Procedure 4(c). We agree with the appellee and dismiss the appeal. Both parties agree that the order upon which this appeal is based was entered on June 15,1992, and that the appellant filed a Motion for a New Trial on June 16, 1992, in accordance with Arkansas Rule of Civil Procedure 59(b). The trial court did not act on the motion within thirty days and thus, it was deemed denied on July 16,1992, the thirtieth day after its filing. On that same day, July 16, the appellant filed her Notice of Appeal. The appellee, by his motion, contends that the Notice of Appeal was filed within the thirty-day jurisdiction of the lower court; therefore, it is not timely and should be dismissed. We refer to Rule 4 to determine whether filing an appeal on the thirtieth day after the filing of a post-trial motion which was neither granted nor denied is timely. Rule 4(c) of the Rules of Appellate Procedure provides: (c) Disposition of post-trial motion. If a timely motion listed in section (b) of this rule is filed in the trial court by any party the time for appeal for all parties shall run from the entry of the order granting or denying a new trial or granting or denying any other such motion. Provided, that if the trial court neither grants nor denies the motion within thirty (30) days of its filing, the motion will be deemed denied as of the thirtieth day. A motion of appeal filed before the expiration of the thirty-day period shall have no affect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion or from the expiration of the thirty-day period. No additional fees shall be required for such filing. [Emphasis- added.] A part of the reporter’s notes to the foregoing rule provides: Under Rule 4(c), a motion is deemed denied if the trial court neither grants nor denies the motion within thirty days of its filing, and, under Rule 4(d), the time for filing the notice of appeal begins to run at the end of that thirty-day period. If, however, an order granting or denying the motion is acted upon within the thirty-day period, the time for filing the notice of appeal begins to run upon entry of the order. [Emphasis added.] In the appellant’s response to the motion to dismiss, she states that her Notice of Appeal was timely as it was filed on the day that the trial court lost jurisdiction, and Kelly v. Kelly, 310 Ark. 244, 247, 835 S.W.2d 869 (1992) would appear to support her argument. That case states: Subsection (c) now explicitly provides that a notice of appeal is ineffective if it is filed prior to the date of the disposition of the post-trial motion, or, if no order is entered, prior to the date that the motion is deemed denied. [Emphasis ours.] Nevertheless, the wording of the rule, and the reporter’s notes, make clear that when the trial court rules on the post-trial motion, a notice of appeal is timely when filed “upon entry” of that order. When the trial court fails to rule on the post-trial motion, the trial court retains jurisdiction of the matter until “the end,” or “expiration,” of the thirtieth day. Because the appellant’s notice of appeal was filed on the thirtieth day, it is untimely and ineffective. The appellee’s motion is granted; the appeal is dismissed. Mayfield, J., dissents.