TDS Erectors, Inc., Henry Electrical Contractors, Inc., and Liberty Supply, Inc. v. Jerry Estes and Estes Construction Company

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION IV

TDS ERECTORS, INC., HENRY

ELECTRICAL CONTRACTORS, INC., AND LIBERTY SUPPLY, INC.

APPELLANTS

V.

JERRY ESTES, ESTES CONSTRUCTION COMPANY

APPELLEES

CA 02-727

MARCH 12, 2003

APPEAL FROM THE LAFAYETTE COUNTY CIRCUIT COURT

[NO. E 98-103-1]

HONORABLE JOE EDWARD GRIFFIN, JUDGE

DISMISSED

This is an appeal from the denial of a motion to vacate an order of dismissal obtained by appellees. For reversal, appellants contend that the trial court erred in refusing to set aside the dismissal order. For the reasons discussed below, we must dismiss the appeal.

In August 1998, appellees, Jerry Estes and Jerry Estes Construction Co., Inc., filed a complaint to foreclose a mechanics' and materialmen's lien on lands in Lafayette County owned by defendants MKP Production Co., L.L.C., and Magnolia Gas Co., L.L.C.. Also named as defendants were Energy Income Fund, L.P., a mortgage holder, and other parties who had liens on the subject property, including appellants TDS Erectors, Inc., Henry Electrical Contractors, Inc., and Liberty Supply, Inc. The case was soon interrupted by a proceeding in bankruptcy, but it was allowed to go forward by an order of the bankruptcy

court entered in April 2000. Thereafter, on May 18, 2000, appellant, TDS Erectors, Inc., filed a motion to consolidate the case with one that was also pending in Lafayette County. A hearing was scheduled on that motion a year later on Tuesday, May 29, 2001.

On Friday, May 25, 2001, appellees filed a motion to dismiss their complaint with prejudice on the ground that their claim had been compromised and settled. The trial court entered an order to that effect the same day. On June 8, 2001, appellants joined in a motion to set aside the order of dismissal pursuant to Ark. R. Civ. P. 60(a). They contended that the trial court should have construed their answers to the appellees' complaint as stating either counterclaims or cross-claims and that the trial court made an error or mistake in dismissing the entire cause of action with prejudice. They argued that a miscarriage of justice would result if they were not allowed to proceed with their claims. The trial court denied appellants' motion to vacate on March 19, 2002. This appeal followed.

On the same grounds argued below, appellants contend on appeal that the trial court erred in denying their motion to vacate the order dismissing the cause of action. We are unable to decide the merits of appellants' argument because we lack jurisdiction to hear the appeal.

Appellants proceeded and stated grounds for relief under Ark. R. Civ. P. 60(a) in seeking to set aside the order of dismissal. Rule 60(a) provides:

Ninety-Day Limitation. To correct errors or mistakes or to prevent the miscarriage of justice, the court may modify or vacate a judgment, order or decree on motion of the court or any party, with prior notice to all parties, within ninety days of its having been filed with the clerk.

The law is clear that not only must an order be entered on a Rule 60(a) motion within ninety days of the original order, but the trial court also loses jurisdiction to act on a Rule 60(a) motion after ninety days have passed from the entry of the original order. See Wal-Mart Stores, Inc. v. Taylor, 346 Ark. 259, 57 S.W.3d 158 (2001); State v. Dawson, 343 Ark. 683, 38 S.W.3d 319 (2001); Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997); Griggs v. Cook, 315 Ark. 74, 864 S.W.2d 832 (1993); Little Rock v. Ragan, 297 Ark. 525, 763 S.W.2d 87 (1989); Guthrie v. Twin City Bank, 51 Ark. App. 201, 913 S.W.2d 792 (1995). Here, the trial court decided the motion far beyond the ninety-day limitation, at a time when it lacked jurisdiction to act on the motion. Thus, the order denying the motion to vacate was void, and any notice of appeal from that void order was of no effect. Griggs v. Cook, supra. Stated another way, because the trial court lacked jurisdiction, the appellate court also lacks jurisdiction. Pierce Addn. Homeowners Ass'n, Inc. v. City of Vilonia, 76 Ark. App. 393, 65 S.W.3d 485 (2002). Although the parties have not raised this issue, we have a duty to raise it on our own because it is a matter that goes to our jurisdiction. Price v. Garrett, 79 Ark. App. 84, 84 S.W.3d 63 (2002). We also note that appellants' grounds for setting aside the order do not fall within any of the exceptions found in Rule 60(c), under which the trial court would have been permitted to act after the ninety-day time limitation. We must dismiss the appeal.

Dismissed.

Baker and Roaf, JJ., agree.