John P. Branch v. Vexter F. Luther

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION I

JOHN P. BRANCH

APPELLANT

V.

VEXTER F. LUTHER

APPELLEE

CA01-16

September 26, 2001

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. CIV 2000-565]

HON. JOE M. FITZHUGH,

CIRCUIT JUDGE

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

This is an appeal from the circuit court's dismissal of an appeal from municipal court. The circuit court dismissed the appeal because it was not timely filed in the district in which the municipal court judgment arose.1 Appellant raises five points for reversal. We affirm in part and reverse in part.

This case began when appellee filed a small-claims complaint against appellant in Fort Smith Municipal Court, alleging breach of a roofing contract. Appellant raised no objection to personal jurisdiction and appeared in municipal court. Appellant asserts that he

orally questioned venue in municipal court, but was told by the municipal judge to file an answer. There is, however, no indication in the record that venue was challenged, and the municipal court entered judgment for appellee on January 20, 2000.

For the sake of clarity, we will set out the relevant events in an outline format as follows:

January 20, 2000 Judgment entered in Fort Smith Municipal Court.

February 16, 2000 Appellant appeals municipal court judgment to the Sebastian County Circuit Court, Greenwood District, rather than to the Fort Smith District.

April 18, 2000 Appellant returns to Fort Smith Municipal Court and files a Rule 60 motion to set aside the municipal court judgment entered on January 20 on the grounds that service was defective, venue was improper, and that appellant had earlier objected to venue in the municipal court proceedings. Appellee responded, asserting that appellee waived all objections to venue and personal jurisdiction at the municipal court hearing.

May 8, 2000 Circuit Court, Greenwood District, finds that appellant filed his appeal in the wrong district and dismisses appeal for lack of jurisdiction. No appeal was taken from this order of dismissal.

June 14, 2000 Fort Smith Municipal Court enters an order denying appellant's motion to vacate and set aside its earlier judgment. In an accompanying letter opinion, the municipal judge notes that any failure of personal jurisdiction or venue at the initial hearing was waived because there was no objection to either jurisdiction or venue.

June 22, 2000 Appellee files motion for fees in Fort Smith Municipal Court.

July 3, 2000 Municipal court grants motion for fees.

July 11, 2000 Appellant appeals all municipal court judgments to the Sebastian County Circuit Court, Fort Smith District.

September 25, 2000 Sebastian County Circuit Court, Fort Smith District, dismisses appellant's appeal from municipal court as untimely.

The determinative issue in this case is whether appellant's appeal to the Sebastian County Circuit Court, Fort Smith District, was timely. In deciding this issue, we are aware that there are actually three municipal court orders involved. Pursuant to Rule 9 of the Arkansas Inferior Court Rules, appellant was required to file his appeal from the original municipal court order within thirty days. That would have been on or about February 19, 2000. Appellant missed that deadline by approximately five months. Furthermore, as discussed below, we do not think that appellant's subsequent Rule 60 motion revived his appeal from the original order.

A timely appeal was had from the second municipal court order, i.e., the denial of the Rule 60 motion entered on June 14, 2000. However, the circuit court's dismissal of the appeal from this order was not erroneous or prejudicial. First, appellant's Rule 60 motion did not extend his time for appealing from the January 20 municipal court order because the filing of a Rule 60 motion does not extend the time for filing an appeal. See Shivey v. Shivey, 337 Ark. 262, 987 S.W.2d 719 (1999). Second, the municipal court lacked jurisdiction to grant the Rule 60 motion in any event. As appellant notes, Rule 60 has a ninety-day time limit. However, that doesn't mean appellant has ninety days to file the motion, it means he has ninety days to have it acted on. If a change is to be made in a judgment, decree or order under Rule 60(b), it must be done within ninety days or not at all, and it was the responsibility of counsel to see to it that any modification of the order wasentered within ninety days. Cigna Insurance Co. v. Brisson, 294 Ark. 504, 744 S.W.2d 716 (1988). Here, although appellant filed his Rule 60 motion before the expiration of the ninety-day period, it was not acted on until well after the ninety-day period had expired. Consequently, the municipal judge had no jurisdiction to grant the Rule 60 motion at the time he denied it, and we therefore hold that the circuit judge did not err in dismissing the appeal from that order.

The third municipal court order was directed at the fee award. An award of attorney's fees is a collateral matter that cannot bring the earlier order on the merits up for review. See Ives Trucking Co. v. Pro Transportation, Inc., 341 Ark. 735, 19 S.W.3d 600 (2000). Much of appellant's argument on this point in circuit court was conditioned on the municipal court's asserted lack of venue or personal jurisdiction. These arguments are foreclosed by appellant's failure to demonstrate that he did, in fact, object to the asserted lack of personal jurisdiction and venue in the municipal court proceeding, which constitutes a waiver of those issues, see Blankenship v. Office of Child Support Enforcement, 58 Ark. App. 260, 952 S.W.2d 173 (1997), and his failure to take a timely appeal from the original proceeding in municipal court. See McCourt Manufacturing Co. v. Credit Bureau, 319 Ark. 23, 888 S.W.2d 650 (1994); see also Wordlaw v. Laster, 323 Ark. 30, 912 S.W.2d 924 (1996). However, appellant did argue in response to appellee's motion for attorney's fees that the fee request was unsupported by the evidence, and a timely appeal was taken from the order granting that motion. Therefore, we reverse and remand on this point with instructions thatthe circuit court should confine its review to whether the fee award was supported by the evidence.

Affirmed in part; reversed and remanded in part.

Roaf, J., agrees.

Hart, J., concurs.

1 Sebastian County has two county seats and two county courthouses: Fort Smith and Greenwood. Pursuant to Rule 9(a) of the Arkansas Inferior Court Rules, civil appeals from inferior courts to circuit court must be filed in the particular circuit court having jurisdiction of the appeal.