Katie Ruth Lawrence v. Arkansas Department of Human Services

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I & IV

KATIE RUTH LAWRENCE

APPELLANT

v.

ARKANSAS DEPARTMENT OF HUMAN SERVICES

APPELLEE

CA03-728

DECEMBER 3, 2003

APPEAL FROM THE POLK COUNTY CIRCUIT COURT

[JV-01-12 A& B]

HONORABLE LARRY CHANDLER, CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

The issue before us in the appeal is whether the judge abused his discretion in refusing to allow an extension of time to file an appeal of an order terminating appellant's parental rights. We find no abuse of discretion and affirm.

The attorney representing appellant acknowledged that she received copy of the order bearing no file mark prepared by the judge with a letter dated January 8, 2003, stating that the same order was being forwarded to the clerk for filing. The order was filed on January 10, 2003. The attorney did not call the clerk's office to check on the status of the order until February 11, 2003. After learning that the order was filed on January 10, appellant's counsel asked for an extension of time to file an appeal based upon the fact that she did not receive a file-marked copy. On February 18, 2003, the court held a hearing on the motion for an extension of time to file an appeal. On March 6, 2003, the trial court entered its order denying the appellant's motion for an extension, finding that although appellant's counsel had not received a file-marked copy of the order, she did have notice that the order had been drafted and tendered to the clerk for filing. The trial court also found that Rule 4(b)(3) of the Arkansas Rules of Appellate Procedure does not require that a party be furnished a file-marked copy of the order from which appeal is sought and that appellant cited no rule or authority requiring such notice.

Accordingly, the trial court concluded that appellant had received notice pursuant to Rule 4(b)(3) and refused to grant the requested extension. Appellant timely filed a notice of appeal from the order denying an extension of time to file a notice of appeal.

The standard of review for the denial of a motion to extend the time to file a notice of appeal is an abuse-of-discretion standard; the trial court's refusal to grant it, therefore, will not be reversed on appeal unless an abuse of discretion is shown. Arnold v. Camden News Pub. Co.110 S.W.3d 268, 270 to 110 S.W.3d 268, 271 (2003). An abuse of discretion means a discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. Id.; Jones v. Double "D" Props., Inc., 352 Ark. 39, 98 S.W.3d 405 (2003); Ford Motor Co. v. Nuckolls, 320 Ark. 15, 894 S.W.2d 897 (1995).

Rule 4(e) of the Arkansas Rules of Appellate Procedure, which concerns the time for filing a notice of appeal, provides that an order is "entered" when it is "filed with the clerk of the court in which the claim was tried." The date a judgment is filed with a court clerk is denoted by the clerk marking or stamping the date and the word "filed" on the document. Arkansas Dept. of Human Servs. v. Hardy, 316 Ark. 119, 122, 871 S.W.2d 352, 354 (1994); see also Shaefer v. McGhee, 284 Ark. 370, 681 S.W.2d 353 (1984). There is no grace period for filing an appeal which grants an allowance of time for items to be transported in the mail. See Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984). Cf. Ark. R. of Civ. Pro. 6(d) (allowing additional computation of time after service by mail pursuant to the rules of civil procedure).

Arkansas Rule of Appellate Procedure 4 contains no provision for a trial court to extend time for filing a notice of appeal based upon excusable neglect. It has been explained that the reason for that exclusion is that Arkansas has long considered the filing of the notice of appeal as jurisdictional and unless timely filed, there can be no appeal. See LaRue v. LaRue, 268 Ark. 86, 593 S.W.2d 185 (1980); White v. Avery, 226 Ark. 951, 295 S.W.2d 364 (1956).

The trial court's denial of the motion to extend time protected the thirty-day provision of Rule 4(b) and reinforced the premise that the burden of diligence is on all parties to stay informed about the status of a case as a matter of Arkansas case law. See Arnold v. Camden News Pub., supra. In Arnold, our supreme court affirmed the denial of the motion to file a belated notice of appeal, holding that appellant should have been aware that the order could have been entered at any time after appellant's counsel had informed the trial court that there were no comments on the precedent submitted by appellees. Although acknowledging that Rule 4 does not speak of a party's obligation to use diligence, the supreme court held that it was "only logical and reasonable that parties assume some modicum of obligation to exercise diligence in keeping up with the status of their case, particularly when they know that a precedent had been submitted and approved by both sets of counsel and is simply waiting approval by the court." ___ Ark. at ___, 110 S.W.3d at 271 (emphasis in original).

The court's reasoning in Arnold is applicable in this case where appellant had notice that the judge not only had signed the precedent, but had sent it to the clerk for filing. Courts construe their own rules using the same means as are used to construe statutes. Arnold v. Camden News Pub. Co., supra at ___, 110 S.W.3d at 272; see also Huffman v. Arkansas Judicial Discipline and Disability Comm'n, 344 Ark. 274, 42 S.W.3d 386 (2001). It is well settled that once the supreme court has interpreted its rules or statutes, that interpretation subsequently becomes a part of the rule or statute itself. Arnold, supra, ___ Ark at ___, 110 S.W.3d at 272 (emphasis in original); see also Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002); Night Clubs, Inc. v. Fort Smith Planning Comm'n, 336 Ark. 130, 984 S.W.2d 418 (1999); Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993).

Appellant also argues that no one will be prejudiced by the extension of time; however, the rule requires that there must be both a showing that no notice was received and that no party would be prejudiced by the extension of time. Because we agree with the trial judge that appellant received notice, we do not address the argument that no party would be prejudiced.

Accordingly, we find no abuse of discretion in the trial court's decision and affirm.

Stroud, C.J., and Gladwin, J., agree.