Whitney v. Wells , 2018 Ark. 371 ( 2018 )


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  •                                    Cite as 
    2018 Ark. 371
    SUPREME COURT OF ARKANSAS.
    No.   CV-18-391
    JAMES E. WHITNEY                                Opinion Delivered December   20, 2018
    APPELLANT
    PRO SE NOTICE AND ADVISEMENT
    V.                                              (MOTION TO FILE NONCONFORMING
    BRIEF)
    WELLS, GAYDEN, LLOYD, AND                       [LINCOLN COUNTY CIRCUIT COURT,
    BROOKS                                          NO. 40CV-17-112]
    APPELLEES
    APPEAL DISMISSED; MOTION MOOT.
    JOHN DAN KEMP, Chief Justice
    Appellant James E. Whitney appeals the denial by the circuit court of his motion
    for reconsideration of an order that set a partial filing fee of $20 with respect to Whitney’s
    pro se civil complaint in tort against four persons. Now before us is Whitney’s motion
    entitled “Notice and Advisement” in which he seeks leave to file a brief on appeal that does
    not conform to the rules of this court. Because it is clear from the record that the circuit
    court did not err when it denied the motion for reconsideration, we dismiss the appeal.
    The motion to file a nonconforming brief is moot.
    The order setting the initial filing fee was entered on October 24, 2017. Whitney
    did not file his request for reconsideration until March 28, 2018. The circuit court denied
    the request because it was not timely filed pursuant to Rule 60(a) of the Arkansas Rules of
    Civil Procedure (2017). Rule 60(a) allows a party to an action to file a motion for the court
    to modify or vacate a judgment, order, or decree in a civil action to correct errors or
    mistakes or to prevent the miscarriage of justice. Gonder v. Kelley, 
    2017 Ark. 239
    , reh’g
    denied (Sept. 14, 2017). The motion must be filed within ninety days of the date the
    judgment, order, or decree was entered, unless the error was a clerical error that may be
    corrected at any time under Rule 60(b). Id. A true clerical error is “essentially one that
    arises not from an exercise of the court’s judicial discretion but from a mistake on the part
    of its officers (or perhaps someone else).” Francis v. Protective Life Ins. Co., 
    371 Ark. 285
    ,
    293, 
    265 S.W.3d 117
    , 123 (2007).
    Whitney did not ask for reconsideration of the October 24, 2017 order until 155
    days after the order had been entered. His motion fell under that part of Rule 60 that
    allows a court to modify or correct an order to prevent a miscarriage of justice.
    Accordingly, Whitney’s motion was untimely, and the circuit court was not wrong to deny
    it.
    Appeal dismissed; motion moot.
    HART, J., dissents.
    JOSEPHINE LINKER HART, Justice, dissenting. I dissent for the reasons set out in
    my dissenting opinion in Whitney v. Cruce, 
    2018 Ark. 373
    , ___ S.W.3d ___ (Hart, J.
    dissenting).
    2
    

Document Info

Docket Number: CV-18-391

Citation Numbers: 2018 Ark. 371

Judges: John Dan Kemp

Filed Date: 12/20/2018

Precedential Status: Precedential

Modified Date: 1/7/2019