Brittenum & Associates, Inc. v. Mayall

Per Curiam. The appellant attempted, but was denied permission, to file the record with this court on May 17,1985. A motion for rule on the clerk was denied June 17, 1985. The appellant has asked that we reconsider our denial of the motion. The pertinent facts are: 1. On October 26,1984, a judgment was entered in favor of the appellee. 2. On November 2, 1984, the appellant moved for judgment n.o.v. or for a new trial. 3. On December 12, 1984, an order was entered reciting that a hearing was held December 3, 1984, and that the appellant’s motion for judgment n.o.v. or a new trial was denied. 4. On December 17, 1984, a .notice of appeal was filed. At this point nothing in writing appeared in the trial court’s record of the case before December 12, showing that a hearing had occurred, a hearing had been set, or that the motion had been taken under advisement. The appellant argues that at the instance of the trial judge letters were sent among counsel reciting that a hearing had been set for December 3, 1984. In Smith v. Boone, 284 Ark. 183, 680 S.W.2d 709 (1984), we addressed the problem presented when the record does not show either that a hearing was set or that the case was taken under advisement within thirty days of the new trial motion as required by Ark. R. App. P. 4(c). We said there must be “a docket entry, order, or other written, dated record . . . made at this point,” quoting St. Louis SW Ry. Co. v. Farrell, 241 Ark. 707, 409 S.W.2d 341 (1966). The appellant contends that there is a written record of the setting of the hearing for December 3,1984, which is in the form of a letter dated November 29,1984, to the court confirming the December 3, 1984, hearing date. That letter did not become a part of the record until it was added by order filed May 9,1985. The fact that a hearing was held December 3,1984, did not in any manner appear on the record until the court’s order of December 12, 1984; however, the appellee’s response to this motion does not dispute the allegation that the hearing was held on December 3, 1984. In St. Louis SW Ry. Co. v. Farrell, supra, the “written record” of a hearing having been set was a letter from the court to counsel which was dated within the thirty-day period.. From the opinion in that case it cannot be ascertained when or if the letter became a part of the official file or “record” in the case. The problems we are trying to avoid in all these cases are those caused by after-the-fact reconstructions of the record for the purpose of showing timely notice of appeal. We will permit the rule on the clerk to issue in this case, because of the undisputed statement that a timely hearing was held, and because heretofore we have not stated that a written record of setting a hearing date must be filed and made a part of the official record of the trial court. We want it to be clear for the future that if parties plan to base their arguments on timeliness of the notice of appeal upon a “written record” that a hearing has been set or held, the “written record,” a transcript of the hearing or other record of its having been held must be filed and made an official record of the court within thirty days from the making of the motion for judgment n.o.v. or for new trial. Facts continued: 5. On February 12, 1985, the appellant moved for a new trial on the basis of newly discovered evidence pursuant to Ark. R. Civ. P. 60(c). 6. A hearing was held on March 8,1985, on the Rule 60(c) motion. 7. On May 9,1985, the Rule 60(c) motion was denied, and a notice of appeal was filed on the same day. The notice of appeal of denial of the Rule 60(c) motion was timely. Ark. R. App. P. 4(a). In contrast with the first new trial motion, discussed above, the dated transcript of the hearing on the later motion became part of the record, and there was no need to reconstruct it by a later recitation or order. We grant the rule on the clerk and recall our earlier mandate to the trial court. The transcript may be lodged with this court, and both appeals may be pursued by the appellant. Robert Dudley, Justice, not participating. Purtle, J., concurring in part, dissenting in part.