Bolin v. Griggs

Sandra Lee BOLIN and Nathan A. Bolin v.
William L. GRIGGS, M.D., and Robert S.
Heusinkveld, M.D.

95-1286                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
              Opinion delivered September 23, 1996
         Dissenting opinion delivered September 23, 1996


     Robert L. Brown, Justice, dissenting.
     The case involves two identical orders of summary judgment --
one signed by the trial court on May 16, 1995, and filed on that
same date, and the second signed by the trial court on May 15,
1995, and filed on May 19, 1995.  The Bolins, as appellants, filed
their notice of appeal on June 16, 1995, which is timely only if
the order filed on May 19, 1995, is valid.  On January 16, 1996, we
remanded the case for correction of the record for the purpose of
having the trial court determine which of the two orders of summary
judgment is the valid order.  On June 5, 1996, the trial court
entered an order which appears to state that both orders are valid.
     This court first denied a motion for rule on the clerk on July
8, 1996, on the basis that the notice of appeal was untimely, and
now a motion for reconsideration has been filed. I would grant the
motion for reconsideration and the motion for rule on the clerk. 
First, I can find no law that illuminates which order takes
priority under these circumstances.  Secondly, I perceive no
manipulation at work here.  This is not a case where an identical
order was filed later in order to extend the period of appeal. 
Rather, here the May 19 order was actually signed by the trial
court a day earlier than the May 16 order.
     It is entirely reasonable to conclude that when the identical
May 19 order was entered, it superseded and took precedence over
the order filed three days earlier.  Again, we have no case law on
this point.  If the trial court is unable to give guidance as to
which of its orders takes precedence, how is the appellants'
counsel to know?  I respectfully dissent.
     Roaf, J., joins.