Angela Hackelton v. Mark J. Malloy, M.D., Dennis Yelvington, M.D. et al.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ANGELIA HACKELTON, ESTATE OF LOIS RAY, DECEASED

APPELLANT

V.

MARK J. MALLOY, ET AL.

APPELLEES

CA 04-358

June 23, 2004

APPEAL FROM THE CIRCUIT COURT OF MONROE COUNTY

[NO. CIV. 97-104]

HONORABLE HARVEY L. YATES,

JUDGE

APPEAL REINSTATED

                                                                                                              Per Curiam

On April 28, 2004, this court dismissed the appeal in the above-styled case based on the motion of appellee Dr. Dennis Yelvington. Appellee's motion was predicated on Rule 5 of the Arkansas Rules of Appellate Procedure - Civil and the contention that the record on appeal had not been lodged on time with this court. Rule 5(a) provides:

The record on appeal shall be filed with the clerk of the Arkansas Supreme Court and docketed therein within 90 days from the filing of the first notice of appeal, unless the time is extended by order the circuit court as hereinafter provided.

Appellee contended that the "first" notice of appeal filed by the appellant became effective on November 28, 2003, and that the record, lodged on April 2, 2004, was untimely as not meeting the ninety-day deadline. However, the notice of appeal appellant refers to was filed prior to the entry of final judgment. The final judgment in this case was not entered until February 2, 2004.

Rule 4(a) of the Arkansas Rules of Appellate Procedure - Civil provides that a notice of appeal filed after the circuit court announces its decision but before the entry of final judgment shall be treated as filed on the day after the judgment was entered. Thus, the premature notice of appeal appellee has relied upon is deemed to have been filed on February 3, 2004. The filing of the record on April 2 was within the ninety-day filing period. Consequently, we improvidently granted appellee's motion to dismiss. Therefore, we recall the mandate and reinstate the appeal.

We note that the appellant has filed a motion asking this court to reconsider our April 28 dismissal of the appeal. Appellee has responded to the motion asserting that it is time-barred under Rule 2-3 of the Rules of the Supreme Court and Court of Appeals. However, this court, sua sponte, discovered its error and took action by voting to reinstate the appeal within days of the dismissal and prior to the filing of appellant's motion to reconsider. This opinion merely formalizes our previous determination.

It is so ordered.