# McCoy v. Moore > Supreme Court of Arkansas · October 7, 1999 · 338 Ark. 740 URL: https://www.frixlaw.com/law-library/cases/7826984 ## Case - **Full name:** Shirley McCOY v. Nettie MOORE - **Court:** Supreme Court of Arkansas - **Decided:** October 7, 1999 - **Citations:** 338 Ark. 740; 1 S.W.3d 11; 1999 Ark. LEXIS 512 - **Precedential status:** Published - **Opinion:** Dissent by Brown - **Judges:** Brown, Imber, Thornton - **Cited by:** 9 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7826984 ## How later opinions describe it (automated extraction) - holding that a motion to vacate was treated as a motion for new trial, which was deemed denied after thirty days ## Opinion text Robert L. Brown, Justice, dissenting. The majority concludes that this court cannot take jurisdiction of Shirley McCoy’s appeal, but its reason for doing so is that the deemed-denied provision of Rule 4(b) of the Rules of Appellate Procedure—Civil applies. I disagree and would not expand the deemed-denied principle in this case. The majority gives no reason why Rule 4(b) applies to these facts, but it is clear that it does not. On December 28, 1998, the probate court entered its order appointing Nettie Moore as guardian of the person and estate of Ethola Maddox. In that order Shirley McCoy was ordered to transfer all of Ethola Maddox’s funds in her possession and certain real property to Nettie Moore as guardian and to notify the Social Security Administration of the new guardianship. On January 5, 1999, Shirley McCoy filed her motion to vacate the guardianship order. In her motion, she stated that she was never a party in the guardianship matter: 7. That Shirley McCoy received no service of summons or notice of hearing and was excluded from the courtroom at the hearing of this matter by invocation of the Rule, and was in no way made a party to this matter in order and that the Court did not acquire or have jurisdiction sufficient to make a decision regarding her rights to the real or personal property in question. She added that she was a necessary party and that her joinder was required. On February 23, 1999, the probate court entered its order which denied the motion to vacate the guardianship. On March 19, 1999, a notice of appeal was filed by Shirley McCoy. Rule 4(b)(1) only applies to (1) a motion for JNOV under Rule 50(b); (2) a motion for additional findings of fact under Rule 52(b); and (3) a motion for a new trial under Rule 59. Without question, McCoy’s motion to vacate is not one for JNOV or for additional findings of fact. That leaves the issue of whether it is a motion for a new trial. Rule 59(a) of the Rules of Civil Procedure begins: “A new trial may be granted to all or any of the parties and on all or part of the claim on the application of the party aggrieved, for any of the following grounds materially affecting the substantial rights of such party. ...” McCoy was not a party to the guardianship proceeding and, according to her motion, was not joined as a party or permitted to participate in the hearing. Hence, she is not asking for a new trial as a party who was involved in the first proceeding. Because of this, Rule 59(a) and Appellate Rule 4(b) do not apply, and her notice of appeal was timely. Not all postjudgment motions are Rule 4(b)(1) motions. See, e.g., Fuller v. State, 316 Ark. 341 , 872 S.W.2d 54 (1994) (motion for reconsideration not a Rule 4(b)(1) motion which divested this court of jurisdiction). As already indicated, this court has limited the motions to three. Contrary to the assertion in the majority’s footnote, this court is obligated to raise matters of subject-matter jurisdiction on its own, even when the precise jurisdictional argument is not made by the appellant. See Weems v. Garth, 338 Ark. 437 , 993 S.W.2d 926 (1999); Williams v. Hudson, 320 Ark. 635 , 898 S.W.2d 465 (1995); Rossi v. Rossi, 319 Ark. 373 , 892 S.W.2d 246 (1995). The majority’s rebanee on In re $3,166,199, 337 Ark. 74 , 987 S.W.2d 663 (1999); Jackson v. Arkansas Power & Light Co., 309 Ark. 572 , 832 S.W.2d 224 (1992); and In Re the Matter of Allen, 304 Ark. 222 , 800 S.W.2d 715 (1990), is misplaced. In Jackson, the appellant was the defendant at trial and, thus, clearly a party. Furthermore, his motion was couched in terms of a new trial motion. We correctly treated his motion as one under Ark. R. Civ. P. 59(a). The cases of In the Matter of Allen, supra, and In re $3,166,199, supra, are also readily distinguishable. Those two cases dealt with appeals and not Rule 59 motions for a new trial. To repeat, Rule 59 expressly states that a motion for new trial is filed by parties. McCoy was never made a party in this matter and, in fact, was not allowed to participate in the guardianship proceeding. In my view, this opinion expands the deemed-denied principle beyond the confines and clear terms of Rule 4(b)(1). Accordingly, our Committee on Civil Practice should review our rule in light of this opinion and consider an amendment to the rule. Because I would accept McCoy’s appeal, I respectfully dissent. Imber and Thornton, JJ., join. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7826984. Public record. Not legal advice.