Michael Hayes v. Sandra Otto, Judson Candler Kidd and Ralph Herbert

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

MICHAEL HAYES

APPELLANT

V.

SANDRA OTTO; JUDSON CANDLER KIDD; RALPH HERBERT

APPELLEES

CA05-184

September 21, 2005

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CV 2004-4984]

HON. MARION ANDREW HUMPHREY

CIRCUIT JUDGE

APPEAL DISMISSED

Josephine Linker Hart, Judge

In this one-brief case, Michael Hayes has attempted to challenge the award of $250 in attorney fees in conjunction with the dismissal of an abuse-of-process suit that he had filed in Pulaski County Circuit Court. The fees were awarded by the trial court under Arkansas Code Annotated section 16-22-309 (Repl. 1999), as a case that lacked a justiciable issue. The trial court dismissed Hayes's complaint for failure to state facts upon which relief could be granted, in accordance with Rule 12(b)(6) of the Arkansas Rules of Civil Procedure, and for lack of subject matter jurisdiction. Hayes raises numerous points for reversal; however, we must dismiss this case because his notice of appeal was not timely filed.

The order dismissing Hayes's complaint was entered on July 27, 2004. Hayes timely filed a motion pursuant to Rule 52 of the Arkansas Rules of Civil Procedure seeking to "amend" the order of dismissal by striking the attorney fee award. The motion was not acted upon within thirty days, as required by Rule 52(b)(1), and therefore was deemed denied on September 9, 2004. Hayes did not file his notice of appeal until November 23, 2004. Accordingly, the notice of appeal was untimely because Hayes failed to file a notice of

appeal within thirty days as required by Rule 4 of the Arkansas Rules of Appellate Procedure-Civil. We are mindful that the trial court did file an order that purported to dispose of Hayes's motion. However, that order was a nullity in that the trial court loses jurisdiction to act on the motion after thirty days, when the motion is deemed denied. State v. Markham, ___ Ark. ___, ___ S.W.3d ___ (Oct. 7, 2004).

Appeal dismissed.

Neal and Vaught, JJ., agree.