order. Upton 827 (1992).
Continued from Page 35 (molion for stay pending appeal); Phillips Construction Co. v. Cook. 34 Ark. App. 224, 808 S.W.2d 792 (1991) (motion under Rule 60{b) to set aside award of anomey's fees). See also £"os v. Slate. 313 Ark. 683, 858 S.W.2d 72 (1993) (motion to set aside judgment in criminal case is not analo· gous to any of the motions listed in Rule 4(b».
Compare Scherz v. M/lIldaca Inveslmem Corp.. 318 Ark. 595, 886 S.W.2d 631 (1994) (motion to vacate couched in terms of a mmion for new trial will be treated as such); Guthrie l'. Twin City Bank, 51 Ark. App. 201. 913 S.\V.2d 792 (1995) (motion to sel aside summary judgment characterized as a motion for new trial).
32, Williams v, Hudson, 320 Ark. 635, 898 S.W.2d 465 (1995). 33. 308 Ark. 260. 822 S.IV.2d 389 (1992). 34. The coun did note, however. that the trial judge "should have entered a formal order" denying the motions. 308 Ark. aI 261, 822 S.\V.2d at 390.
35. Eddings v. Lippe. 304 Ark. 309, 802 S.W,2d 139 (1991).
I~
estate of UplOlI. 308 Ark. 677, 828 S.W.2d
38. See. e.g.. McCraw I'. McCraw. 46 Ark. App. 236. 878 S.W.2d 3 (1994) (record was nOllendered until 116 days after appellant's notice of appeal and did not indicate that an extension had been obtained). The trial court's order grunting an eJltension of time must be entered prior to !.he expiration of the otherwise applicable period for filing the record. See, e.". Willis ,~ Sw/c, 323 Ark. 41, 912 S.W.2d 430 (1996) (extension order signed on the last day of the 9O-day period was ineffective. since it was not actually entered until the following day). 39. Sl!e e.g.. Sw.IOI.d EllIerprises, Inc.
1'. Andrews. 314 Ark. 229, 861 S.W.2d 311 (1993) (clerk properly refused to accept record tendered tWO weeks after expir.ttion of the seven month period measured from date that motion for new trial was deemed denied). To obtain an extension longer than seven months. the appellant must file a panial record in the appellate coun and show a compelling reason. such as unavoidable casually, why more lime should be granted. Morris II. Stroud. 317 Ark. 628. 883 S.W.2d [(1994): In re ESI(l/e of \Vilkinson. 311 Ark. 311, 843 S.W.2d 316 (1992).
40. See Poole (1989).
I(
Poole, 298 Ark. 550, 768 S.W.2d 544
41. 322 Ark. 820. 913 S.W.2d 758 (1995).
36. An illustrative case is Reis v. Yt'l1es, 313 Ark. 300. 854 S.W,2d 335 (1993). Judgment on a jury verdici was entered for the plaintiff, who, dissatisfied with the amount of damages, filed a timely motion for a new trial on June 29. 1992. That same day. the circuit judge mailed the panies a notice thut a hearing would be held on September 8. The judge heard the motion as scheduled and ten days Ialer entered an order granting it. 1lle defendant appealed, and the supreme coun reversed. Under Rule 4(c), !.he motion had been "deemed denied" on July 29, and under Rule 4(d) the period for filing a notice of appeal had expired on August 28, thirty days Ialer. 37. The leading case is Phillips I'. Jacobs. 305 Ark. 365, 807 S.W.2d 923 (1991). Accord, Reis I'. flues. 313 Ark. 300.854 S.W.2d 335 (1993): Arkansas Slare Highway Comm'n I'. Ayres, 3tt Ark. 212. 842 S.W.2d 853 (1992): Wal-Mars Stores. Inc. II. Isely, 308 Ark. 342. 823 S.W.2d 902 (1992). The thiny-day limit set out in Rule 4(c) applies only to motions listed in Rule 4(b) and does not apply (0 a request under Ark. R. Civ. P. 6O(a) to correci an
42. Id. at 822-23. 913 S.W.2d al 759-60. Chief Juslice Brodley Jesson. wriling for !.he three dissenters. argued that in this situation the deadline for filing the record "should be the latest date it is due for anyone appellant, rather than the earliest:' Such an approach. he added. would be consi~tent with !.he fact th,1t "there is only one record in a case.... not a separ.tte record for each appellant:' /(/. at 824. 913 S.W.2d at 760.
43. This is the rule in the feder.tl courts. £.g., Pagl' I'. Preiss"" 585 F.2d 336. 338 (81h Cir. 1978). Although there are apparently no Arkansas cases directly on point, this result is clearly consiSlenl with Rule 4(0). 44. See City of Marianna I'. Arkansas MlIIlicipal Le08/f~, 289 Ark. 473. 474A. 712 S.W.2d 305, 306 (1986) (absenl certification complying with Rule 54(bl. "no final judgment has been entered and no appeal may be taken at this stage of the proceeding"). In Corr/ell I( NadeOiI. 321 Ark. 300, 900 S.\V.2d 556 (1995), the trial coun's Rule 54(b) certification wos made more !.han a year afler!.he entry of summary judgment in favor of one of the two defendants. An appe:11 Wl\~
taken after the certificalion. long afler expirulion of the thirty-day period for filing the notice a§ to the summary judgment. The supreme coun held that it had jurisdiction and accepted the appeal. Id. at 302. 900 S. W.2d at 558. However, two other cases suggest, without squarely holding. th3lthe relcVlIm date for notice of appeal purposes is the entry ofJudgment. even if the certification comes later. ~ Albmy I'. Wideman. 312 Ark. 434, 850 S.W.2d 314 (1993): Tillio I'. Arkansas Blue Cross & BIlle Shidd. Inc.. 283 Ark. 278.675 S.W.2d 369 (1984). 45. Mllrry I'. SIlI/e Farm MUI/wl AWomobile Ins. Co .. 291 Ark. 445. 725 S.W.2d 571 (1987). This result follows from the gencmJ rule that the trial coun loses jurisdiclion when the record is filed. £orl~ I'. Bennett. 289 Ark. 448. 711 S.W,2d 829 (1986): Andrews I'. ulIIener. 229 Ark. 894. 318 S.W.2d 805 (1958). Although there is an exception for "matters that are collateral or supplernenlalto the trial court's judgment," Alexander I'. fjrst National Btmk. 278 Ark. 406, 408.646 S.W.2d 684. 686 (1983), a Rule 54(b) certification does nOt qualify in light of Mllrr)'.
46.
Kelly
I',
Kelly. 310 Ark. 244. 835 S.W.2d 869 (1992).
47. Albert)' \'. iV/deman, 312 Ark. 434. 436, 850 SW.2d 314,315 (1993). 48. £.g.. Martillez I'. Arrow Truck Sales. fnc., 865 F.2d 160 (8th Cir. 1988): mdell FillGl.cilll Corp. 1'. Palo TIre Sen/iel', Inc.. 596 F.2d 604 (3d Cir. 1979).
The Best of CLE June 24-28, 1996
Little Rock
John E. McAllister, P.E. Graduate Electrical Engineer, 34 Years Industrial Experience. Specialist in Industrial Machine Guarding and Safety. ~ ~ ~ ~
~
Born 1921. B. Sc. in Electrical Engineering 1947. 14 Years experience with General Electric Co. in engineering and industrial sales. II Years President of company involved with repair and rewinding of electric motors and the manufacture, sales, installation and serVicing of electrical control panels for industry. 9 Years President of large distributor specialiZing in the sales, manufacture, installation and servicing of all types of safety equipment for industry with major emphasis on metal forming and stamping. Registered Professional Engineer in 3 states. Curriculum vitae and references on request.
~ John E. McAllister, 9 Sierra Lane, Hot Springs Village, AR 71909·3214 Phone: (;01) 922·1709 Fax: (;0 I) 922-4177 40
The Arkansas
Lawyer
Spring
1996