Breckenridge v. Ashley

PER CURIAM. This appeal from the Carroll County Chancery Court must be dismissed because the appellant did not file a timely notice of appeal. This case was tried on October 3, 1995. On October 12, 1995, the appellant filed a motion for a new trial under Ark. R. Civ. P. 59, even though the decree had not yet been filed. In fact, the decree was filed on November 2, 1995. The chancellor denied the motion for new trial on November 14, 1995. On December 11, 1995, the appellant, stating that she was appealing from the November 2, 1995, decree and the November 14, 1995, order denying the motion for new trial, filed the notice of appeal. For the reasons expressed below, we hold that, because the appellant’s motion for new trial was filed prior to the entry of the decree, it was not timely and was, therefore, ineffective. Further, because the appellant failed to file a timely motion for new trial, the notice of appeal was due on Monday, December 4, 1995. Accordingly, we hold that the notice of appeal that was filed on December 11, 1995, was untimely and of no effect, and therefore, this Court is without jurisdiction to hear this appeal. Arkansas Rule of Appellate Procedure — Civil 4(a) (formerly Ark. R. App. P. 4(a)) provides that, except as otherwise provided in subsequent sections of this rule, a notice of appeal shall be filed within thirty days from the entry of the judgment, decree, or order appealed from. Arkansas Rule of Appellate Procedure — Civil 4(b) provides that, upon the “timely filing” in the trial court of a motion for new trial under Ark. R. Civ. P. 59(b), the time for filing the notice of appeal shall be extended as provided in Rule 4. Arkansas Rule of Appellate Procedure — Civil 4 provides: If a timely motion listed in section (b) of this rule [such as a motion for new trial under Rule 59(b)] 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 30th day. A notice of appeal filed before the disposition of any such motion or, if no order is entered, prior to the expiration of the 30-day period shall have no effect. 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 30-day period. No additional fees shall be required for such filing. The failure to file a timely notice of appeal deprives this Court of jurisdiction. Williams v. Hudson, 320 Ark. 635, 638, 898 S.W.2d 465 (1995); Rossi v. Rossi, 319 Ark. 373, 374, 892 S.W.2d 246 (1995); Schaeffer v. City of Russellville, 52 Ark. App. 184, 186, 916 S.W.2d 134 (1996). In this case, we must determine whether the appellant’s motion for new trial was “timely” under Ark. R. Civ. P. 59(b) and Ark. R. App. P. — Civil 4. Because it was filed before the decree was entered, we are convinced that it was not timely. Arkansas Rule of Civil Procedure 59(b) provides: “A motion for a new trial shall be filed not later than 10 days after the entry of judgment.” In Hicks v. State, 324 Ark. 450, 452, 921 S.W.2d 604 (1996), and Webster v. State, 320 Ark. 393, 394, 896 S.W.2d 890 (1995), the Arkansas Supreme Court held that a motion for new trial filed prior to the entry of judgment is not effective and does not extend the time for filing the notice of appeal. In Webster v. State, the appellant was convicted of several crimes and was sentenced to six years in prison. He filed a motion for a new trial before the judgment and commitment order was entered. The supreme court held that, under Ark. R. Civ. P. 59 and Ark. R. App. P. 4(b), the motion for new trial was untimely and ineffective. It also held that, because the motion for new trial was ineffective and the appellant’s notice of appeal was based on the motion for new trial and filed more than thirty days after the judgment, the notice of appeal also was of no effect. The supreme court stated, however, that the appellant’s attorney had assumed responsibility for not verifying that the judgment and commitment order had been filed prior to the filing of the motion for new trial. The court reasoned that it would therefore treat the appellant’s motion for rule on the clerk as a motion for a belated appeal. It granted that motion and directed that a copy of its order be filed with the Committee on Professional Conduct. In Hicks v. State, the appellant was convicted of several crimes on December 4 and 5, 1995, and was sentenced to ninety-five (95) years in prison. Before the judgment and commitment order was entered, the appellant’s counsel filed a motion for new trial on December 11, 1995. The judgment and commitment order was entered three days later, on December 14. The trial court did not rule on the motion for new trial. On January 19, 1996, the appellant’s counsel filed a notice of appeal from the judgment “entered against him on December 5, 1995.” 324 Ark. at 451. The supreme court clerk refused to accept the record because the notice of appeal was filed late. The appellant then filed a motion for rule on the clerk. Citing Webster v. State, supra, the supreme court held that the motion for new trial was untimely and ineffective because it was filed before the judgment and commitment order was entered. 324 Ark. at 451. The court further stated: “Because the motion for new trial was ineffective and because the notice of appeal was filed more than thirty days after the judgment was entered, the notice of appeal was also of no effect. Webster, 320 Ark. 393, 896 S.W.2d 890.” 324 Ark. at 452. The supreme court denied the appellant’s motion for rule on the clerk because his counsel had not admitted responsibility for filing the notice of appeal untimely. The court, however, directed the appellant’s attorneys to file, within thirty days, a motion and affidavit accepting full responsibility for not timely filing the notice of appeal and held that, upon such filing, or for other good cause shown, it would grant the motion and send a copy of the opinion to the Committee on Professional Conduct. Although Hicks v. State and Webster v. State are criminal cases, they are not distinguishable in this context. In Webster v. State, the supreme court specifically relied upon Ark. R. Civ. P. 59 in holding that the notice of appeal was of no effect because it was based upon a motion for new trial filed before the entry of the judgment and commitment order and because it was filed more than thirty days after the judgment. In Hicks v. State, the supreme court specifically relied upon Webster v. State in making its decision. Further, both of those decisions cited Ark. R. App. P. 4. Although the Revised Rules of Appellate Procedure became effective on January 1, 1996, the pertinent sections of Rule 4 of the Rules of Appellate Procedure — Civil track former Appellate Rule 4 without change. Additionally, in civil cases, the appellant is not given an opportunity to file a belated appeal as criminal appellants may do when their attorneys admit responsibility for filing an untimely notice of appeal. In civil cases, we have consistently held that the failure to file a timely notice of appeal deprives this Court of jurisdiction and requires dismissal of the appeal. See Snowden v. Benton, 49 Ark. App. 75, 76, 896 S.W.2d 451 (1995); Glover v. Langford, 49 Ark. App. 30, 31, 894 S.W.2d 959 (1995). The only clear authorities regarding the timeliness of the notice of appeal in the present case are Hicks and Webster, supra, and these cases require dismissal. Any other course would require us to construe the supreme court’s procedural rules, which is outside our jurisdiction, see Supreme Court Rule l-2(a)(3), or alternatively, to overrule Hicks and Webster. Because we are clearly obliged to follow, and are without authority to overrule, the decisions of the Arkansas Supreme Court, see Dean v. Colonia Underwriters Ins. Co., 52 Ark. App. 91, 99, 915 S.W.2d 728 (1996); Scarbrough v. Cherokee Enters., 33 Ark. App. 139, 143, 803 S.W.2d 561 (1991), aff’d, 306 Ark. 641, 816 S.W.2d 876 (1991), the latter alternative is not a viable option. Therefore, on the strength of Hicks and Webster, we dismiss this appeal. Dismissed. MAYFIELD, J., concurs in part and dissents in part.