holding that a motion to vacate was treated as a motion for new trial, which was deemed denied after thirty days
How later courts described this case
- holding that a motion to vacate was treated as a motion for new trial, which was deemed denied after thirty days
- dismissing appeal as untimely filed based on rule providing that certain post-judgment motions are deemed denied after given period of time
Written by the judges who cited it.
The opinion
Per Curiam. Appellant Shirley McCoy filed a motion for rule on the clerk, stating she thought she had thirty days to appeal from a February 23, 1999, order which denied her earlier motion to vacate the trial court’s December 28, 1998, order granting appellee Nettie Moore the guardianship of Ethola Maddox. We deny McCoy’s motion.
After the trial court entered its December 28 order, McCoy obtained counsel who filed a motion on January 5, 1999, to vacate the December order. The trial court failed to act on McCoy’s motion, resulting in the motion being deemed denied on February 4, 1999. McCoy apparently had problems with her attorney and at some point proceeded pro se. Although it had no power to do so, since thirty days had expired since McCoy filed her motion on January 5, the trial court entered an order on February 23, 1999, denying her motion to vacate. Thinking she had thirty days from the February 23, 1999, order from which to file an appeal, McCoy filed her notice of appeal on March 19, 1999. See Rule 4 of the Rules of Appellate Procedure—Civil (1999), and Rule 59 of the Rules of Civil Procedure (1999).
The dissenting opinion suggests Rule 4 does not apply because a motion to vacate is not a motion for new trial as is required under Rule 4(b). The dissent is wrong. In Jackson v. Arkansas Power & Light Co., 309 Ark. 572 , 832 S.W.2d 224 (1992), Jackson moved to vacate the trial court’s judgment as being contrary to the law, public policy, and the evidence. The Jackson court held that, because Jackson’s motion to vacate was in the nature of a motion for new trial under Rule 59, it was required to be filed within ten days of judgment. Ark. R. Civ. P. 59(b). Jackson failed to do so, and the court held that his untimely filing of his motion to vacate failed to extend the time for filing his notice of appeal under Rule 4(b). Therefore, the court dismissed Jackson’s appeal. In the instant case, Shirley McCoy is similarly barred. Although McCoy filed her motion within the required ten days, her mistake was failing to comply with Rule 4(b)(1) by omitting to file her notice of appeal within the thirty-day period after February 4, when her motion was deemed denied.
The dissent also offers the novel argument that McCoy’s motion cannot be characterized as a motion for new trial because she was never made a party to this case. The law is settled that a person with a pecuniary interest affected by a trial court’s judgment has standing to pursue appellate review of that judgment or order, even though the person was never made a party to the case. See, e.g., In the Matter of Allen, 304 Ark. 222 , 800 S.W.2d 715 (1990); In re $3,166,199, 337 Ark. 74 , 987 S.W.2d 663 (1999). Here, McCoy entered her appearance in this case below, because she clearly possessed a pecuniary interest which was undoubtedly affected by the trial court’s December 28, 1998, order. However, once again, she simply failed to perfect a timely appeal. Accordingly, McCoy’s motion for rule on the clerk must be dismissed.
In sum, Rule 4(c) of the Appellate Procedure—Civil required McCoy to file a notice of appeal within thirty days after her motion to vacate was deemed denied. When she failed to do so, the trial court lost jurisdiction and our court, too, is deprived of jurisdiction for an appeal. See Arkansas State Highway Comm’n v. Ayres, 311 Ark. 212 , 842 S.W.2d 853 (1992).
Brown, Imber, and Thornton, JJ., dissent.