Lord v. Mazzanati , 339 Ark. 25 ( 1999 )

TOM Glaze, Justice.

This case arose from a neighborhood dispute ce. John and Sue Lord’s moving a mobile home onto their property in the Lakewood Estates No. 1 Subdivision to Lake Village. The mobile home was to serve as their dwelling. O. B. and Ann Mazzanti and other property owners (hereafter collectively referred to as the Mazzantis) in Lakewood Estates No. 1 objected to the Lords’ mobile home, stating it violated the subdivision’s bill of restrictive covenants. Unpersuaded by the Mazzantis’ assertions, the Lords continued with plans to make the mobile home their dwelling, causing the Mazzantis to file this suit in Chicot County Chancery Court.

On August 27, 1997, the Mazzantis sought an injunction ordering the Lords to remove their structure and to pay the Mazzantis’ attorneys’ fees. The Lords answered, denying the Mazzantis’ claims, and after a full trial on January 9, 1998, the chancellor entered his order with findings of fact and conclusions of law in favor of the Mazzantis on June 10, 1998. The Lords filed a notice of appeal and obtained a timely extension to docket their appeal to December 1, 1998, past the ninety-day-limitation requirement provided in Ark. R. App. P. —Civil 5(a). However, when December 1 came, the Lords dismissed their appeal.

It was on or about December 1, 1998, that the chancellor became aware that his original decree of June 10, 1998, contained clerical errors. He corrected the errors by entering an amended decree, which he signed on December 1, 1998, and entered on December 3, 1998. In short, the chancellor’s original decree contained internal inconsistencies, whereby the first page of the decree accurately identified the Lords as the defendants, finding that their property was subject to the Lakewood Estates restrictive covenants; however, on page two, the plaintiffs Mazzantis were mistakenly identified as the defendant owners of the mobile home and ordered to remove it. The decree also erred in ordering the Mazzantis, who were the prevailing plaintiffs, to pay the Lords’ attorney’s fees. In his amended decree, the chancellor merely caused his decree to reflect the original findings of fact and conclusions of law filed on June 10, 1998, which found that the Lords had breached subdivision restrictive covenants and ordered them to remove their dwelling. The chancellor’s amended decree further corrected the original decree to show the Lords as losing party defendants and ordering them to pay the Mazzantis’ $2,500.00 in attorneys’ fees.

The Lords bring this appeal from the chancellor’s December 3 amended decree, arguing generally that the chancellor had no authority under Ark. R. Civ. E 60(a) to amend or modify his decree after ninety days had passed since its entry.¹ In support of their argument, the Lords cite our cases of Ross v. Southern Farm Bureau Cos. Ins. Co., 333 Ark. 227, 968 S.W.2d 622 (1998), and Phillips v. Jacobs, 305 Ark. 365, 807 S.W.2d 923 (1991). The Mazzantis rejoin, citing Arkansas precedents extending back over one hundred and fifty years that hold that trial courts have the inherent authority to correct a decree to accurately reflect the judgment' that was actually rendered. See Rossi v. Rossi, 319 Ark. 371, 892 S.W.2d 246 (1995) (a trial court may “enter an order nunc pro tunc when the record is being made to reflect that which occurred but was not recorded due to a misprision of the clerk”); Fitzjarrald v. Fitzjarrald, 233 Ark. 328, 344 S.W.2d 584 (1961) (holding that “where the entry through some plain error fails to correspond with the judgment that was actually rendered, the court can at a later term correct the judgment”); King & Houston v. State Bank, 9 Ark. 185 (1848) (noting the “authority of the court... to amend in whatever may be necessary to make the record speak the truth”); Harrison v. Bradford, 9 Ark. App. 156, 655 S.W.2d 466 (1983) (the court has power “to correct the record to the extent of making it conform to the action which was in reality taken at the time”).²

In 1979, this court adopted Ark. R. Civ. P. 60, specifically Rule 60(a) in issue here, which continues Arkansas’s settled practice of allowing a trial court to correct clerical errors at any time. Our Rule 60(a), which is identical to Fed. R. Civ. P. 60(a),³ reads as follows:

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. (Emphasis added.)

Rule 60(a) is merely a restatement of Arkansas’s well-settled law, empowering the trial court to enter nunc pro tunc judgments to cause the record to speak the truth, whether in criminal or civil cases. See Lovett v State, 267 Ark. 912, 591 S.W.2d 683 (1980); McPherson v. State, 187 Ark. 872, 63 S.W.2d 282 (1933); Richardson v. State, 169 Ark. 167, 273 S.W. 367 (1925). Just recently we upheld a trial court’s authority to enter an order nunc pro tunc in a criminal case when more than a year and a half had passed since the original judgment had been filed and mandate had issued. McCuen v. State, 338 Ark. 631, 999 S.W.2d 682 (1999). While we noted in McCuen that Rule 60(a) itself does not specifically refer or apply to a criminal case, it is obvious that Rule 60(a) does apply to civil cases, and its plain language adopts the same longstanding rule utilized in all cases — that trial courts may correct clerical errors at any time. In these circumstances, a trial court’s power to correct mistakes or errors is to make the record speak the truth, but not to make it speak what it did not speak but ought to have spoken. See Chastain v. Davis, 294 Ark. 134, 741 S.W.2d 632 (1987); Fitzjarrald, 233 Ark. 328, 344 S.W.2d 584; Reves v. Reves, 21 Ark. App. 177, 730 S.W.2d 904 (1987), overruled on other grounds, 26 Ark. App. 37, 759 S.W.2d 570 (1988).

As already noted above, Fed. R. Civ. P. 60(a) is identical to Arkansas’s Rule 60(a), and the federal courts have reached the same conclusion we have, namely, that the rule permits the correction of clerical mistakes and that the power may be exercised at any time, either on motion or on the court’s own initiative, so the judgment or record will be made to speak the truth but not made to say something other than what originally was pronounced. See 11 Wright, Miller & Kane, Federal Practice and Procedure § 2854 (2d ed. 1995). See also, American Trucking Ass’ns v. Frisco Transp. Co., 358 U.S. 133 (1958) (quoting the “at any time” language of the federal rule and noting that “it is axiomatic that courts have the power and the duty to correct judgments which contain clerical errors”); Pattiz v. Schwartz, 386 F.2d 300 (8th Cir. 1968) (lower court within its power to act a full five years after entry of its original order because what it “was effectuating ... was nothing more than the correction in the formal record of a gap or error arising from oversight or omission, within the definite and positive language of Rule 60 (a)’s first sentence.... [I]ts action ... resulted] simply in the record speaking the truth”).

Even though the Lords concede the chancellor in the instant case merely corrected clerical errors, they ask us to ignore Arkansas’s common-law rule and the clear wording of Rule 60(a) and urge us to hold the chancellor erred when making the corrections. Basically, the Lords contend the ninety-day limitation contained in Rule 60(b) should also apply to clerical mistakes mentioned in Rule 60(a). Unquestionably, a trial court has broad authority to correct nonclerical mistakes or errors so as to prevent the miscarriage of justice if the court does so within ninety days of the filing of its decree or order. However, to read provision (b) to include clerical mistakes would not only render meaningless the “at any time” language in provision (a), but such a construction would also conflict with the common-law rule discussed above.

As previously noted, the Lords rely heavily on this court’s decisions in Phillips and Ross. These two decisions are distinguishable, since neither one involved clerical mistakes. While neither case controls the situation now before us, both opinions contain errant language that requires overruling, and we do so in this decision.

We first address Phillips, and again point out that it did not involve clerical mistakes; instead, it concerned a trial court’s belated granting of a plaintiff’s request for new trial. The Phillips court held the. trial court lost jurisdiction to grant a new trial because it failed to comply with the dictates of Ark. R. App. P. - Civil 4(b)(1)⁴. The defendant in Phillips also argued that, because Ark. R. Civ. P. 60(b) authorized a trial court to act within ninety days to prevent the miscarriage of justice, the trial court had power to grant a Rule 59 new trial motion, so long as it did so within the ninety-day limitation period contained in Rule 60(b). This court rejected this argument. The Phillips court stated that the Rule 60 miscarriage of justice language governed mistakes, errors, and fraud in obtaining the judgment, which are distinct and apart from those grounds substantially affecting the material rights of a party set out in Rule 59. While unnecessary to the decision, the Phillips opinion added, “the reference to certain miscarriages of justice in rule 60(b) is a reference to those clerical errors or mistakes described in rule 60(a).” 305 Ark. at 367, 807 S.W.2d at 925. This sentence simply is a misstatement of how provisions (a) and (b) relate to one another. As already discussed, provision (b) makes no mention of “clerical mistakes,” and clearly the mistakes or errors or the prevention of the miscarriage of justice in (b) must be made within ninety days from entry of the trial court’s decree or order. “Clerical mistakes” under provision (a) can be corrected at any time. In sum, while Phillips does contain some unfortunate dictum that requires overruling, the case turned on facts and issues simply not applicable here.

We next discuss Ross, where our court cited and relied on the errant language of Phillips in reaching its decision. Again, Ross did not involve a clerical mistake. There, plaintiff Jerry Ross initiated suit against defendants Troy Osbourne and Clay Vanoven for negligence, and later joined Southern Farm Bureau Insurance Co., alleging the insurance company would be liable under Ross’s underinsured motorist coverage. Ross setded his claims with Osbourne and Vanoven, and an order was entered dismissing all claims with prejudice. Later, it was realized that the effect of the order included the dismissal of Ross’s claim against Southern Farm Bureau. Although ninety days had passed since the trial court’s original order of dismissal, a “corrected order of dismissal with prejudice,” dismissing only Osbourne and Vanoven was entered. The Ross court held the trial court lost jurisdiction to amend its dismissal order since the ninety-day limitation period provided under Rule 60(b) had elapsed. The court further stated that, while it harbored some doubt whether Ross’s error in this case could be characterized as “clerical,” this court, citing Phillips, stated the ninety-day requirement in Rule 60(b) also applies to “clerical errors.”

This court’s holding in Ross was correct, but it is because the error there was not a clerical one as provided in Rule 60(a); instead, the error was a nonclerical one, which was subject to the ninety-day limitation in Rule 60(b). Simply put, when the trial court entered its original order of dismissal, it made no mention or adjudication of Ross’s claim against Southern Farm Bureau. Such a situation is in stark contrast with the facts now before us where the chancellor entered his correct findings of facts and conclusions of law at the same time he filed his decree, wherein he had mistakenly transposed the parties’ names.

In conclusion, here there was neither a motion for new trial under Rule 59, as in Phillips, nor an erroneous dismissal of any party, as in Ross. The mistake here was indisputably a clerical error. Our courts have always had the inherent authority to enter an order nunc pro tunc to correct such mistakes and to make the record speak the truth. Therefore, the chancellor’s amended decree correcting the original decree was proper and his ruling is affirmed. To the extent the language in Phillips and Ross indicates otherwise, that language is overruled.

BROWN, J., concurs.

1 In his amended decree, the chancellor refers to Rule 59(a) of the Rules of Civil Procedure as authority to correct typographical errors, but it is clear Rule 59(a) is not applicable for such purposes and Rule 60(a) is the rule at issue.

2 The Mazzantis also cite the case of VanCamp v. VanCamp, 333 Ark. 320, 969 S.W.2d 184 (1994), in support of their argument, but, as the Lords point out,'this court in VanCamp upheld the trial court’s original decree because the parties had previously contractually bound themselves to post-majority child support to send their children to college, and this court held their contract was binding and enforceable as any other contract. Rule 60 was not utilized in reaching a decision in this divorce case. Instead, the VanCamp court, applying settled contract law in divorce cases, concluded that opposing parties both had to assent to any changes before any contract could be modified.

3 This court chose not to adopt provision (b) of the Federal Rules of Procedure, finding the federal rule would be an unwelcome departure from existing Arkansas law and detract from the stability of final judgments. In this vein, the court explained that the distinction between intrinsic and extrinsic fraud as a basis for relief from a judgment is considered an important and desirable one. See Reporter’s Notes to Arkansas Rule 60.

4 At the time of the Phillips decision, the provisions dealing with filing motions for new trial and filing notices of appeal were contained in Rule 4(c) of the Rules of Appellate Procedure