Patsy Brewer, d/b/a Jimmy Doyle Country Club v. Alcoholic Beverage Control Division
Annotate this Case
Download PDF
EN BANC
P ER C URIAM
ARKANSAS COURT OF APPEALS
CA06-205
December 20, 2006
PATSY BREWER, d/b/a/ JIMMY
DOYLE COUNTRY CLUB
APPELLANT
AN APPEAL FROM PULASKI COUNTY
CIRCUIT COURT
[NO. CV2005-2087]
v.
ALCOHOLIC BEVERAGE CONTROL
DIVISION
APPELLEE
HONORABLE CHRISTOPHER PIAZZA
CIRCUIT JUDGE
DISMISSED
Appellee Alcoholic Beverage Control Division (ABC) found appellant guilty of
allowing minors to consume alcoholic beverages, allowing minors to be present in a private
club where no food service was available, and selling alcoholic beverages to a minor.
Appellant was fined $2500, had her permit suspended for one week, and was placed on
probation for one year. She appealed to the Pulaski County Circuit Court, which upheld the
ABC’s decision. Appellant has now appealed to this court. However, because appellant’s
notice of appeal was untimely and she failed to obtain a valid extension, we must dismiss the
appeal.
The order of the Pulaski County Circuit Court upholding the ABC’s decision was
entered on October 27, 2005. Appellant’s notice of appeal was due to be filed by Monday,
November 28, 2005. See Ark. R. App. P.--Civil 4(a) (2005) (declaring that the notice of
appeal shall be filed within thirty days from the entry of the order appealed from). However,
it was not filed until December 1, 2005. In the absence of a timely notice of appeal, this court
has no jurisdiction to hear the appeal. See generally Wandrey v. Etchison, 363 Ark. 36, ___
S.W.3d ___ (2005); Oak Hill Manor, LLC v. Ark. Health Servs. Agency, 72 Ark. App. 458,
37 S.W.3d 681 (2001).
However, there is an additional circumstance to consider in this case. On
December 27, 2005, appellant’s counsel filed a “Motion To Enlarge Time For Filing Notice
of Appeal.” He stated that, “during this time frame and to the present day,” he was under the
care of several doctors and “numerous drugs were administered...causing unavoidable delays
in tending to [counsel’s] mail to note the arrival of the signed order and delaying response
thereto ....” He also stated that, during the same period, his computer malfunctioned
“necessitating a new hard drive” and that all pleadings in the present case were lost. The trial
court, with no objection from the ABC, entered an order on December 27, 2005, retroactively
extending the time for filing the notice of appeal to December 1, 2005.
Arkansas Rule of Appellate Procedure--Civil 4(b)(3), as it was in effect in 2005,
provided in pertinent part:
Upon a showing of failure to receive notice of the judgment, decree or order from
which appeal is sought and a determination that no party would be prejudiced, the
circuit court shall, upon motion filed within 180 days of entry of the judgment, decree,
or order, extend the time for filing the notice of appeal for a period of fourteen (14)
days from the day of entry of the extension order.
2
While this rule clearly contemplates that an extension of time to file a notice of appeal may
be granted where the appellant did not receive notice of a judgment being entered, it makes
no provision for an extension in any other circumstances. See In The Matter Of The Adoption
of Revised Rules of Appellate Procedure, 321 Ark. 663, 900 S.W.2d 560 (1995), where our
supreme court included the following reporter’s note pertaining to Ark. R. App. P.--Civil 4:
Under Federal Rule 4, the trial court is empowered to extend the time for filing a
notice of appeal upon a showing of excusable neglect. No such provision is included
in [Arkansas’s] Rule 4 for the reason that Arkansas has long considered the filing of
a notice of appeal as jurisdictional and unless timely filed, there can be no appeal. The
Committee saw no need to change this settled rule of law.
Id. at 688 (citation omitted).
In the present case, appellant’s counsel did not allege that he failed to receive notice
of the judgment. Instead, twenty-seven days after the notice of appeal had been filed, counsel
moved for an extension on the ground of “unavoidable casualty,”stating the reasons
previously mentioned. Under the language of Rule 4, such reasons did not warrant an
extension.1
Because appellant’s notice of appeal was untimely and no extension was properly
granted, we have no jurisdiction of this case, and the appeal must be dismissed. See Arkco
Corp. v. Askew, 360 Ark. 222, 200 S.W.3d 444 (2004) (dismissing an appeal where the trial
court erroneously granted an extension of time to file a notice of appeal).
Dismissed.
1
The ABC’s lack of objection to the extension does not alter the outcome. The
jurisdiction of our court cannot be conferred by consent. See LaRue v. LaRue, 268 Ark.
86, 593 S.W.2d 185 (1980).
3
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.