Jones-Blair Co. v. Hammett

James R. Cooper, Judge. This appeal results from a judgment entered in favor of the appellee and a subsequent order denying the appellant’s motion for a new trial and extension of time in which to file an appeal. For reversal, the appellant argues that the trial court abused its discretion in denying its motion to extend the time in which to file an appeal, that the trial court erred in permitting its attorney to withdraw at trial, and that the evidence is insufficient to support the judgment. We affirm. In January 1989, the appellant filed a complaint against the appellee to collect over $6,000.00 for paint and wall covering supplies sold to the appellee on an open account. The appellee answered and counterclaimed alleging that the appellant had competed against her in violation of the parties’ agreement and had tortiously interfered with her business relationships. The appellee sought damages in excess of $31,070.00. The appellant was initially represented by David Reynolds in this matter; however, Richard Atkinson was substituted as the appellant’s attorney by an order filed on October 5, 1990. The case was subsequently set for trial on January 27, 1993. On October 22, 1992, Mr. Atkinson wrote the appellant notifying it of the trial date. Mr. Atkinson requested that the appellant contact him as soon as possible to advise him how it wished to proceed. By a letter dated November 10, 1992, the appellant advised Mr. Atkinson that it had charged off the appellee’s account in 1990 and further stated, “As for further litigation, we would have to have the particulars in regard to fees, court costs, etc. Thank you.” On December 3, 1992, Mr. Atkinson responded by letter and advised the appellant that there was still an active case in Faulkner County on the appellee’s counterclaim. Mr. Atkinson’s letter went on to state: Even if you dismiss your suit against Ms. Hammet, she is not willing to dismiss the counterclaim. If you do not authorize me, or retain other counsel and appear on the 27th of January, the judge will enter a default judgment against Jones-Blair. My fee is $100.00 per hour. If I do not hear from you within a reasonably short period of time, I will ask the court for permission to withdraw as your attorney of record in this case. Mr. Atkinson did not receive a response to this letter nor did he have any further contact with the appellant until after the trial. The appellant contends that it never received Mr. Atkinson’s December 3rd letter. At the beginning of the trial on January 27, 1993, Mr. Atkinson was allowed to withdraw as counsel for the appellant and leave the courtroom. No one else was present to represent the appellant. The trial court then dismissed the appellant’s complaint against the appellee and proceeded to trial on the appellee’s counterclaim. A judgment against the appellant in the amount of $39,819.90 was entered on January 28, 1993. The appellee’s attorney mailed a copy of the judgment to the appellant but it was returned “undeliverable.” A copy of the judgment was also sent to Mr. Atkinson; however, he did not notify the appellant of the entry of the judgment nor did he inform the appellant that he had been permitted to withdraw as counsel. The appellant learned of the judgment entered against it on May 19, 1993. On June 25, 1993, the appellant filed a petition to set aside the judgment which was denied by the trial court on August 6, 1993. The appellant did not appeal from the denial of its petition; however, on August 17, 1993, it filed a motion for an extension of time in which to file an appeal from the judgment. While this motion was pending, the appellant on September 27, 1993, filed another motion to set aside the judgment pursuant to Rule 60(c) of the Arkansas Rules of Civil Procedure. On February 9, 1994, a hearing was held on the appellant’s motions at which time the appellant was allowed to present evidence in defense of the appellee’s counterclaim. The trial court denied the appellant’s motions in an order entered June 7, 1994. In its order, the trial court stated: Jones-Blair Company was negligent in failing to show up for trial, and that negligence continued after the trial, until it became aware of the Judgment and took some action to set it aside. Considering [appellant’s] letter of November 10, 1992, and Mr. Atkinson’s letter of December 3, 1992, Mr. Atkinson was not required to take any more reasonable steps to comply with Rule 64 of the Arkansas Rules of Civil Procedure. On appeal, the appellant first contends that the trial court abused its discretion in denying its motion to extend the time in which to file an appeal. Rule 4(a) of the Arkansas Rules of Appellate Procedure provides: (a) Time for Filing Notice. Except as otherwise provided in subsequent sections of this rule, a notice of appeal shall be filed within thirty (30) days from the entry of the judgment, decree or order appealed from ... Upon a showing of failure to receive notice of entry of the judgment, decree or order from which appeal is sought, the trial court may extend the time for filing the notice of appeal by any party for a period not to exceed sixty (60) days from the expiration of the time otherwise prescribed by these rules. Such an extension may be granted before or after the time otherwise prescribed by these rules has expired; but if a request for an extension is made after such time has expired, it shall be made by motion with such notice as the court shall deem appropriate. The appellant relies on the Reporter’s Note to the 1986 amendment to Rule 4 which states: Additional to Reporter’s Note, 1986 Amendment: Rule 4(a) is amended to empower the trial court to extend the time for filing a notice of appeal when the party has not received notice of the entry of the judgment or order from which he seeks to appeal. The amendment represents a narrow exception to the rule that the filing of a notice of appeal is jurisdictional and, unless timely filed, there can be no appeal. White v. Avery, 226 Ark. 951, 291 S.W.2d 364 (1956). The change was deemed necessary to ensure fairness when counsel has not received notice of the entry of the judgment or other appealable order. Cf. Karam v. Halk, 260 Ark. 36, 537 S.W.2d 797 (1976). Although under longstanding Arkansas custom opposing counsel have been given an opportunity to approve a judgment or order prepared by opposing counsel, circumstances have arisen where counsel did not receive that opportunity and did not otherwise receive notice that a judgment had been entered. The appellant asserts that Rule 4(a) allows the trial court to extend the period to file an appeal beyond ninety days when the appellant can show that it did not have notice that the judgment from which it seeks to appeal had been entered. The appellant contends that, because the trial court found that it did not have notice of the judgment until more than ninety days after it had been entered, the trial court abused its discretion in denying it an extension of time in which to appeal the judgment. It is undisputed the appellant did not receive notice of the entry of the judgment until after ninety days from the entry of the judgment. However, under the plain language of Rule 4(a), upon a showing that the appellant failed to receive notice of the entry of judgment, the trial court could have extended the time in which to file an appeal not to exceed sixty days from the date the appeal should have been filed. Thus, under Rule 4, the trial court in the case at bar did not have jurisdiction to act more than sixty days after the notice of appeal was due. Therefore, we find no error by the trial court in denying the appellant’s motion to extend the time in which to file an appeal. Given our resolution of this issue, the merits of the judgment are not properly before us, and we therefore do not address the appellant’s argument that the evidence is insufficient to support that judgment. The appellant also argues that the trial court erred in permitting Richard Atkinson to withdraw as its attorney on the day of trial. The appellant asserts that because of this error, the judgment should be set aside pursuant to Ark. R. Civ. P. 60(c)(1) where the grounds for a new trial are discovered after the expiration of ninety days after filing the judgment. The appellant’s ground for a new trial is based upon Ark. R. Civ. P. 59(a)(1) which permits a new trial where there is any irregularity in the proceedings or any order of the court or abuse of discretion by which the party was prevented from having a fair trial. The appellant contends that permitting its attorney to withdraw in the face of the pending counterclaim resulted in prejudice and was such an “irregularity” as to prevent it from having a fair trial. The appellant argues that Diebold v. Myers General Agency, Inc., 292 Ark. 456, 731 S.W.2d 183 (1987), requires that the appellee’s judgment be set aside. However, we think that Diebold instead supports the trial court’s actions. In Diebold, the Supreme Court held that the appellant was not entitled to have a judgment against her set aside under Rule 60(c) because she was negligent in failing to keep herself informed of the suit against her. Furthermore, a party cannot invoke the aid of the appellate court under Rule 60(c) when the party ignored the action and failed to stay informed. See CMS Jonesboro Rehabilitation, Inc. v. Lamb, 306 Ark. 216, 812 S.W.2d 472 (1991). A litigant is required to take notice of all proceedings during the pendency of an action to which it is a party. Karam v. Halk, 260 Ark. 36, 537 S.W.2d 797 (1976). The burden of showing unavoidable casualty and that appellant was diligent and without negligence rests with appellant. Id. Our review of the record leads us to conclude that the appellant has failed to sustain that burden in the case at bar. The appellant had been aware of the pending counterclaim against it since 1989 and was aware of the trial date as early as Mr. Atkinson’s letter of October 22, 1992. The appellant responded to the October 22 letter but made no further attempts to contact its attorney or to inquire about the status of the litigation. The appellant did not appear for trial nor did it inquire regarding the results of the trial. The trial court specifically found that the appellant was negligent in failing to appear for trial, that the negligence continued after trial until it became aware of the judgment, and that the appellant was negligent in not being aware of the entry of judgment. Under these circumstances, we hold that the appellant’s negligence in failing to stay informed of the progress of the litigation precludes entitlement to a new trial under Rule 60(c). Finally, we note that the appellant, in its reply brief, suggests that it will be denied due process of law unless it is permitted to appeal. We do not reach this issue because it has been raised for the first time on appeal. Hodges v. Gray, 321 Ark. 7, 901 S.W.2d 1 (1995). Affirmed. Mayfield and Rogers, JJ., dissent.