Rossi v. Rossi

Robert L. Brown, Justice, dissenting. The majority has decided that Robert Rossi’s notice of appeal was untimely filed. The majority concludes that although the notice was filed within thirty days of the decree in the correct county, it was filed in the circuit clerk’s office and never received in the chancery clerk’s office within the required time period. Because this obvious inadvertence could have been corrected had standard courthouse procedures been followed, I would deem the notice timely filed. To do otherwise is to penalize a party, even when clerical error is partially the reason for the defect.

At the hearing on this matter, Susan Inmon, then supervisor of the Civil-Criminal Department of the Pulaski County Circuit Clerk’s Office testified:

COUNSEL: Okay. And how long have you had that position?

INMON: I have been with the office for ten years. I have supervised for about four.

COUNSEL: So, you are well qualified to give an opinion as to the custom and practice or to testify as to the custom and practice in the Circuit Clerk’s Office?

INMON: Yes.

COUNSEL: Okay. And what is the standard procedure for instances in which you have a Chancery Court filing that is inadvertently submitted and accepted by the Circuit Clerk for filing?

INMON: Well, procedurally we will file mark the document as it comes across the counter, place it in a basket and then the clerks will enter it the following morning.

This particular case, the file number is not one of our cases. In fact it is a closed case so the clerks couldn’t even enter it into our system. And when we do realize we have received a Chancery or another Court’s filing, particularly Chancery, we will “X” out our file mark on the original, send it through the county’s courier to the Chancery Clerk’s Office.

COUNSEL: Okay. That would be directly — I guess downstairs, well, around the corner?

INMON: Right.

COUNSEL: So, in all — in your standard procedure it would be, what, the day after the filing —

INMON: It would be the following day.

COUNSEL: — in which you would transfer that document to the Chancery Court’s Office. Is there any instructions that you know of that are given to the Chancery Court Clerk?

INMON: No. It is placed in a manila envelope or an envelope and just Chancery is written across it and it is placed in the pick up box for the county courier.

COUNSEL: Okay. And the filing date essentially speaks for itself? It just tells the Chancery Court Clerk when it was filed?

INMON: Well, we “X” out our filing date because it is not filed in our office.

COUNSEL: Okay. Does this happen with any degree of frequency?

INMON: It happens occasionally and it happens in the Chancery Clerk’s Office because they will forward us documents that were inadvertently filed there.

This case is sufficiently analogous to the circumstances of Linder v. Howard, 296 Ark. 414 , 757 S.W.2d 549 (1988) for that case to be precedent. In Linder, the plaintiff filed her complaint arising out of a car accident in the chancery clerk’s office one day before the statute of limitations was to run. After the limitations period ran, the mistake was caught, and the transfer to the circuit clerk’s office was made. The defendant moved for summary judgment on the limitations issue, and the circuit court granted the motion. We reversed on appeal on the basis that Ark. Code Ann. § 16-57-104 (a) (1987) contemplates a transfer to the proper docket when erroneous filings are made. Hence, the statute of limitations was tolled by the inadvertent commencement of the action in chancery court.

In the case before us, Rule 60(a) of the Rules of Civil Procedure reads:

(a) Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own motion or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court and thereafter while the appeal is pending may be so corrected with leave of the appellate court.

It was clearly a mistake for the courier service to file the notice of appeal with the circuit clerk. But it was also a clerical mistake to log the notice of the appeal in that court. It was further a clerical mistake to “X” out the file mark and void the filing without notifying appellant’s counsel. It was, finally, a mistake for courthouse procedures not to have been followed to rectify the mistake. The notice should immediately have been transferred to chancery court in accordance with the established practice testified to by Ms. Inmon. Rather than that occurring, somehow the “X’ed out” version of the notice of appeal appeared on the court reporter’s desk after the 30-day period had run.

Other jurisdictions have avoided the harshness of the result reached in this case. See, e.g., Alfonso v. Dept of Environmental Regulation, 616 So.2d 44 (Fla. 1993); People v. Greathouse, 742 P.2d 334 (Colo. 1987). In Alfonso, the Florida Supreme Court retreated from prior caselaw and held that a notice of appeal filed in the court of appeals rather than the trial court, though the wrong court, appropriately invoked appellate jurisdiction. The Supreme Court directed that the notice of appeal be transferred to the correct clerk with the date of filing being the date the document was filed in the wrong court.

Appellate courts have not dismissed appeals even when the notice of appeal was mistakenly filed in the wrong county (Sinicropi v. Town of Indian Lake, 538 N.Y.S.2d 380 (A.D. 3 Dept 1989)), or when the court clerk erroneously filed and docketed a notice of appeal filed in the wrong division of that court (In Re Estate of Tague, 514 N.E.2d 910 (Ohio App. 1986)) or, again, when the notice was filed in the appellate court rather than the trial court (Resolution Trust Corp. v. Foust, 869 P.2d 183 (Ariz. App. Div. 1 1993)).

This is not a case, however, where the party filed a notice of appeal in the appellate court rather than the trial court. It is a case where the party correctly filed in the trial court, but in the wrong trial court, and courthouse procedures were not followed to remedy the mistake. The case is most analogous to the facts of In Re Estate of Tague, supra, where the appellate court looked to clerical error to reach the correct result.

The majority avoids the fairness issue that permeates this case when it hinges its decision on the movant’s mention of nunc pro tunc relief in his motion. Neither party argues that issue on appeal. And what the movant clearly requested from the court was that the notice of appeal be placed of record in the chancery case and considered as timely filed. The chancery court considered the motion in that vein and made no mention of a nunc pro tunc problem in its order. Rather, the court’s decision was premised on the appellant’s failure to comply substantially with the Appellate Rules and because of insufficient proof. The court stated:

1. The Notice of Appeal and Designation of Record has not been filed with the Pulaski County Chancery Clerk.

2. The subject Notice of Appeal and Designation of Record was not received by this Court until after the time for its filing had run.

3. The Defendant failed to substantially comply with the Rules of Appellate Procedure.

4. The Defendant failed to present sufficient proof that there was a clerical misprision.

5. For the foregoing reasons, the Defendant’s Motion is hereby denied.

In this matter, it is all too clear that a clerical misprision occurred. Because of the uncontroverted facts, the decision in this case turns on the question of whether a blind adherence to Ark. R. App. P. 3(b) is appropriate under these facts. I do not believe that it is. We should treat the error in this case, which was the shared responsibility of several parties, for what it was — an inadvertence, a misprision, a technical defect — and reach the merits of this appeal.

I respectfully dissent.

Holt, C.J., joins.