Breckenridge v. Ashley

Melvin Mayfield, Judge,

concurring in part and dissenting in part. I dissent, in part, from the result reached by the majority in the per curiam opinion issued today in this matter. I agree that the notice of appeal in this case was not timely filed insofar as an appeal from the decree filed in this case is concerned. However, I do not agree that the notice of appeal — which states it is also appealing from the denial of the appellant’s motion for new trial — is ineffective insofar as the denial of the motion for new trial is concerned.

Here, the appellant did not file a motion for new trial as described in Arkansas Rule of Appellate Procedure 4(b) (now designated as Rules of Appellate Procedure — Civil). This is because the motion for new trial referred to in that subsection means a 'motion timely filed under Rule of Civil Procedure 59(b), which requires the motion to be filed not later than “10 days after the entry of judgment.” Compare Fuller v. State, 316 Ark. 341, 344, 872 S.W.2d 54, 55 (1994) (motion for reconsideration not analogous to a motion under Civil Procedure Rules 50(b), 52(b), or 59(b)), and Enos v. State, 313 Ark. 683, 685, 858 S.W.2d 72, 73 (1993) (motion to set aside judgment not analogous to any of the motions listed in Appellate Procedure Rule 4(b)). So, the motion for new trial in the instant case, not being filed within 10 days as required by Civil Procedure Rule 59(b), is not a motion that is referred to in Appellate Procedure Rule 4(b). Therefore, the motion did not extend the time for filing an appeal from the judgment entered November 2, 1995, and this court is correct in holding that the notice of appeal filed December 11, 1995, which was more than 30 days later, was not effective to appeal from the November 2, 1995, judgment.

However, that does not render the notice of appeal ineffective as to the order that denied the appellant’s motion for new trial. Appellate Procedure Rule 2(a)(3) provides that an appeal may be taken from an order that “grants or refuses a new trial.” See Mikkelson v. Willis, 38 Ark. App. 33, 826 S.W.2d 830 (1992), where we explained that at one time such an order was not appealable unless the notice of appeal contained an assent by the appellant that if the order of the trial court was affirmed, judgment absolute would be rendered against the appellant. We also pointed out that this condition of appealability was removed by Act 547 of 1963, first compiled as Ark. Stat. Ann. § 27-2101 (Supp. 1965), and preserved by Appellate Procedure Rule 2(a)(3). See Reporter’s Notes to Rule 2: 1.

So in the instant case, after the decree was entered by the trial court on November 2, 1995, that court denied appellant’s motion for new trial by an order entered November 14, 1995, and the appellant filed a notice of appeal from that order on December 11, 1995. This was within 30 days after the entry of the order denying new trial and, under Appellate Procedure Rules 2 and 4,1 think the appeal of that order is properly before us and should be decided on its merits.

And in answer to the obvious question of why this would not also allow the decree of November 2 to be reviewed under Appellate Procedure Rule 2(b), which provides that “an appeal from any final order also brings up for review any intermediate order involving the merits and necessarily affecting the judgment,” the answer is that the decree of November 2 is not an “intermediate order.” This was our conclusion in Mikkelson v. Willis, supra, where the appellant appealed a judgment against him which was obtained after the trial court had granted the appellee a new trial. We said the order granting the new trial had become a final order when it was not appealed; therefore, it was not an intermediate order and could not be reviewed in the appeal from the judgment entered after the new trial was granted. The same logic should apply in the instant case.

The per curiam opinion issued by the majority of this court cites the cases of Hicks v. State, 324 Ark. 450, 921 S.W.2d 604 (1996), and Webster v. State, 320 Ark. 393, 896 S.W.2d 890 (1995), as authority for this court’s action in dismissing the appeal from the trial court’s failure to grant a new trial and also as authority for dismissing the appeal from the trial court’s judgment that decided the merits of the case. From a reading of those per curiam opinions, it seems clear to me that in the Webster case no order was entered ruling upon thé motion for new trial and that the opinion simply holds that the notice of appeal filed more than 30 days after judgment was entered was too late and was of no effect. And in the Hicks case, the opinion specifically states that “the trial court did not rule on the motion for new trial” but that the notice of appeal was filed more than 30 days after the judgment was entered and it was of no effect.

Thus, the Hicks and Webster cases certainly do not constitute authority for the proposition that when the trial court enters “an order which grants or refuses a new trial” there can be no appeal from that order, and Appellate Procedure Rule 2(a)(3) certainly provides that an appeal may be taken from such an order. It is true that those cases make the statement that the motion for new trial “filed before the judgment and commitment order was entered” was “untimely and ineffective.” But those statements simply mean that such motions do not operate to extend the time for filing a notice of appeal from those judgments and commitment orders. But if those motions had met the conditions set out in Appellate Procedure Rule 4(b), (c), and (d), then the notices of appeal would have been operative to allow the appellate court to review the judgments and commitment orders.

This is very clearly explained in the Addition to Reporter’s Notes, 1988 Amendment, following Appellate Procedure Rule 4, where it is pointed out that the 1988 amendment “expands from 10 to 30 days the time period in Rule 4(d) for filing the notice of appeal when a posttrial motion has been made.” One reason for this, the Reporter’s Notes say, is because with the shorter time period contained previously in Rule 4(d), it was possible for an appellant to miss the 10-day deadline and still file a notice of appeal from the order denying the posttrial motion by complying with the 30-day period provided in Rule 4(a). This would allow the appellant to challenge the trial court’s action with respect to the post-trial motion but not the errors underlying the judgment. Cornett v. Prather, 290 Ark. 262, 718 S.W.2d 433 (1986), is cited as an example of that situation.

But the above explanation does not say that this situation can no longer occur under any circumstances. So, even if for reasons of symmetry or personal preference I wanted to hold that the trial court’s order in this case denying the appellant’s motion for new trial could not be reviewed on appeal, I would have to say that it was an order which refused to grant a motion for new trial and, under the circumstances involved here, that order is before us in this appeal, and we should not dismiss this appeal without deciding the merits of the issue presented by the denial of that motion.

Therefore, I concur in part and dissent in part from the per curiam opinion of the majority.