Guthrie v. Twin City Bank

Per Curiam. Appellee Twin City Bank moves to dismiss the appeal filed by Gertie Guthrie on the basis that her notice of appeal was untimely. Appellant’s action against appellee was dismissed by summary judgment filed in the trial court on April 13, 1994. On April 25, 1994, appellant filed a motion for reconsideration requesting the trial court to set aside the summary judgment and proceed to trial. We characterize this motion as a motion for a new trial. Although a motion for a new trial must be filed not later than ten days after entry of judgment, appellant’s motion was timely because the intermediate Saturday and Sunday are excluded from computation pursuant to Ark. R. Civ. P. 6(a). Appellant amended her motion on May 9, 1994. The trial court heard arguments on appellant’s motion twice, apparently on June 24, 1994, and again on November 18, 1994. By order filed December 5, 1994, the court denied appellant’s motion. Appellant filed notice on December 21, 1994, that she was appealing the December 5, 1994, order. Appellant’s motion for new trial was deemed denied not later than June 8, 1994, thirty days after her amendment to the motion was filed.1 Ark. R. App. P. 4(c). Consequently, appellant was required to file her notice of appeal from the summary judgment within thirty days after June 8, 1994, the date her motion was deemed denied. Her notice of appeal was not filed until December 21, 1994, and was untimely. Appellant’s notice of appeal specifically recited that she was appealing the order dated December 5, 1994, which denied her motion for new trial. Even if the time for appealing an order denying a motion for new trial, as distinguished from the judgment which is sought to be set aside, does not begin to run from the date it is “deemed denied” under Ark. R. App. P. 4(c), the trial court lost jurisdiction, or the power, to act on the motion thirty days after it was filed, Ark. State Hwy. Comm. v. Ayres, 311 Ark. 212, 842 S.W.2d 853 (1992); Wal-Mart Stores, Inc. v. Isely, 308 Ark. 342, 823 S.W.2d 902 (1992), long before the court entered its order denying appellant’s motion. If we characterized appellant’s motion for reconsideration as something other than a motion for a new trial, or one of the other post-judgment motions listed in Ark. R. App. P. 4(b), then the “deemed denied” provision of Ark. R. App. P. 4(c) would not apply. However, if appellant’s motion for reconsideration does not fall within the categories listed in Ark. R. App. P. 4(b), it must necessarily be viewed as an Ark. R. Civ. P. 60(b) motion seeking to correct an error or mistake or to prevent a miscarriage of justice.2 If so characterized, appellant’s position is not improved because the trial court would have lost jurisdiction to set aside or modify the April 13,1994, summary judgment ninety days after its entry in filing. Griggs v. Cook, 315 Ark. 74, 864 S.W.2d 832 (1993); Parks Leasing, Inc. v. Bray Corp., 43 Ark. App. 74, 861 S.W.2d 116 (1993); Story v. Spencer, 41 Ark. App. 27, 847 S.W.2d 48 (1993). Consequently, even with this characterization, we could not consider the merits of the trial court’s order denying appellant’s motion for reconsideration because it was entered by the trial court without jurisdiction. This appeal is dismissed. Mayfield, J., dissents. Footnotes [1] We need not now decide whether an amendment to a motion for a new trial extends the time for filing a notice of appeal, because appellant’s notice was untimely even if the amendment did extend the time. [2] There is no allegation that the motion asserted any of the grounds listed in Ark. R. Civ. P. 60(c) for setting aside the subject judgment.