Virgil Hausman, Dorothy Hausman, Dwain Hausman, and Vernon Hausman v. Dale Throesch, Tonya Throesch, Thomas Throesch, Teresa Throesch, Paul Throesch, and Mary Throesch
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ARKANSAS COURT OF APPEALS
DIVISIONS II & III
No. CA08-478
VIRGIL HAUSMAN, DOROTHY
HAUSMAN, DWAIN HAUSMAN, and
VERNON HAUSMAN,
APPELLANTS
Opinion Delivered 10
DECEMBER 2008
APPEAL FROM THE RANDOLPH
COUNTY CIRCUIT COURT
[NO. CV-2005-30]
V.
DALE THROESCH, TONYA THROESCH,
THOMAS THROESCH, TERESA
THROESCH, PAUL THROESCH, and
MARY THROESCH,
APPELLEES
THE HONORABLE PHILIP SMITH,
JUDGE
DISMISSED
D.P. MARSHALL JR., Judge
1.
JURISDICTION
– AFTER POSTJUDGM ENT M OTION DEEM ED DENIED, NOTICE OF APPEAL FILED
AFTER THIRTY- DAY DEADLINE – APPELLATE COURT LACKED JURISDICTION.– Appellants’ filing of
Rule 52 motion tolled the time for filing their notice of appeal; but after the circuit court neither
granted nor denied the motion within thirty days, the motion was deemed denied; appellants then
had an additional thirty days to file a notice of appeal; because appellants did not their notice until
well after their thirty-day deadline had passed, the appellate court did not have jurisdiction and was
required to dismiss the appeal.
2.
JURISDICTION – APPEAL COULD NOT BE SALVAGED UNDER ARK. R. CIV. P. 60 – CIRCUIT COURT
DID NOT REDUCE ITS BENCH RULING TO WRITING.– The appellate court did not have jurisdiction
under Arkansas Rule of Civil Procedure 60(a); the circuit court held a hearing on appellants’
motion within ninety days of entering its original order and ruled from the bench at that hearing;
however, the court did not reduce its bench ruling to writing, and enter its amended order, within
the ninety-day period of jurisdiction provided by Rule 60(a); appellants’ appeal, therefore, could
not be salvaged by looking to Rule 60 and the amended order.
Roy E. Meeks, for appellants.
Don R. Brown, for appellees.
Does a servient landowner ever have the right to change, without the easement
holder’s permission, the location of an established easement if the landowner provides
an alternate route? We cannot answer that interesting legal question for want of
appellate jurisdiction.
The Hausmans plowed up a road that ran through the middle of their field. The
Throeschs had an implied easement to use that road to get to their adjoining field. The
Hausmans moved the road to the edge of their field so that they could level and better
utilize their land for growing rice. The circuit court found that the Hausmans had no
legal right to either move the easement or insist that the Throeschs use an alternate
route.
The court entered a final order resolving all the issues.
It directed the
Hausmans to rebuild the road in its original location. The Hausmans filed a post-trial
motion under Rule of Civil Procedure 52. They asked the court to amend its findings,
or to make additional findings, about the specifications for rebuilding the original road.
The court held a hearing on the motion. Ruling from the bench, the court modified its
original order slightly. The court later entered an amended order, which embodied its
original order and its oral ruling making the change in specifications. The Hausmans
appeal the amended order.
“Timely filing of a notice of appeal is jurisdictional, and we are required to raise
the issue of subject-matter jurisdiction on our own motion.” Stacks v. Marks, 354
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Ark. 594, 599, 127 S.W.3d 483, 485 (2003). The time-line of filings and events
illuminates the jurisdictional issue:
14 September 2007:
Court entered original order*
19 September 2007:
Hausmans filed Rule 52 motion
29 October 2007:
Court held hearing on Rule 52 motion and
made an oral ruling
4 January 2008:
Court entered amended order
22 January 2008:
Hausmans filed notice of appeal
The Hausmans’ Rule of Civil Procedure 52 motion for amended or additional
findings was timely. Ark. R. App. P.–Civ. 4(b)(1). It therefore tolled their time to file
a notice of appeal from the original final order. Ibid. But the circuit court neither
granted nor denied the motion within thirty days. Thus the motion was deemed denied
by operation of law on 19 October 2007. Ibid. The circuit court lost jurisdiction on
that date because it had entered no decision of record on the motion within the thirtyday period. Ark. State Highway Commission v. Ayres, 311 Ark. 212, 214, 842
S.W.2d 853, 854 (1992). T he Hausmans then had thirty days to file their notice of
appeal.
Ark. R. App. P.–Civ. 4(b)(1).
The Hausmans did not file their notice,
*
The signature page of this order is missing from the addendum and the record. The parties
assume and premise their arguments, however, on the circuit court’s entry of a signed order on 14
September 2007.
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however, until 22 January 2008—well after their thirty-day deadline had passed. We
therefore do not have jurisdiction and must dismiss this appeal.
Seay v. C.A.R.
Transportation Brokerage Co., 366 Ark. 527, 530–31, 237 S.W.3d 48, 51 (2006).
Even if we construe the Hausmans’ motion as arising under Rule of Civil
Procedure 60(a), thus expanding the circuit court’s window to amend its final order
to ninety days, we still do not have jurisdiction. The court held its late October 2007
hearing on the Hausmans’ motion within ninety days of entering the original order.
The court ruled from the bench at the end of that hearing.
But “[p]ursuant to
Administrative Order 2(b)(2), an oral order announced from the bench does not
become effective until reduced to writing and filed.” Community Bank of North Ark.
v. Tri-State Propane, 89 Ark. App. 272, 279, 203 S.W.3d 124, 128 (2005). The court
did not reduce its bench ruling to writing, and enter its amended order, within the
ninety-day period of jurisdiction provided by Rule 60(a). The Hausmans’ appeal,
therefore, cannot be salvaged by looking to Rule 60 and the amended order.
Dismissed.
ROBBINS , BIRD, GLOVER, and HEFFLEY, JJ., agree.
BAKER, J., dissents.
KAREN R. BAKER, Judge, dissenting. The majority interprets the phrase “if the court neither
grants nor denies the motion within 30 days of the date on which it is filed or treated as filed, it shall be
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deemed denied as of the 30th day” to require a trial court to memorialize its action in writing and file an
order of record or lose its jurisdiction. This language appears in Rule 52(b) of the Arkansas Rules of Civil
Procedure addressing the amendment of findings and the judgment and in Arkansas Rule of Appellate
Procedure –Civil 4(b)(1) regarding the extension of time for filing a notice of appeal. The plain language
of the rule merely provides that if the trial court fails to act, the motion will be deemed denied for purposes
of determining the timeliness of an appeal. The provision contains no restriction regarding the method or
means by which the court may act. The majority’s interpretation restricts the trial court’s inherent authority
to protect the integrity of the proceedings and to safeguard the rights of the litigants before it.
In this case, the record contains no written order granting the Rule 52(b) motion; however, the
court held a hearing forty days after the written motion was filed and modified the original order. No party
objected to the trial court’s jurisdiction at either the trial level or on appeal.
Two principles lead me to the conclusion that the trial court had jurisdiction to enter the amended
order. Each of these principles is premised upon the trial court’s inherent authority to protect the integrity
of the proceedings and to safeguard the rights of the litigants before it. Reid v. Frazee, 72 Ark. App. 474,
41 S.W.3d 397 (2001); City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990).
First, as an appellate court, we are required to presume that a trial court’s findings are correct in
the absence of a record to the contrary. See, e.g., Turner v. Brandt, 100 Ark. App. 350, ___ S.W.3d
___ (2007); Argo v. Buck, 59 Ark. App. 182, 954 S.W.2d 949 (1997). In cases falling within the usual
powers of the court the rule is that, where the record is silent with respect to any fact necessary to give the
court jurisdiction, it will be presumed that the court acted within its jurisdiction. Oliver v. Routh, 184 S.W.
843 (1916) (distinguishing usual from special powers in probate court). Furthermore, when the record is
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silent regarding the trial judge’s findings, the appellate court presumes that the trial judge made all the
findings necessary to support the action taken. Coon v. State, 76 Ark. App. 250, 65 S.W.3d 889 (2001).
When applying this presumption, we should be mindful of the inherent authority of the trial court to control
court records. Ward v. State, 369 Ark. 313, 253 S.W.3d 927 (2007).
Neither Rule 52(b) nor Rule 4 limits the trial court’s ability to act by requiring the court’s action be
in writing or that a written memorialization of the action be filed with the clerk. Applying our general
deference to the trial court’s inherent authority, we should presume that it acted within its jurisdiction absent
evidence to the contrary. In the case before us, the record is silent as to when the trial court granted the
Rule 52(b) motion. Accordingly, we should presume that the trial court acted within its jurisdiction when
it granted the motion and when it held the hearing.
Second, once the trial court reasserted its active contemplation of the case, the “deemed denied”
provision of Rule 4(b)(1) can no longer be applicable. See First Nat’l Bank of Lewisville v. Mayberry,
366 Ark. 39, 233 S.W.3d 152 (2006) (holding that because the motion to vacate was not filed within ten
days of the order appealed from it did not fall within the “deemed denied” provision of Rule 4(b)(1);
accordingly the motion was still pending and, with no Rule 54(b) certification, court had no jurisdiction to
entertain appeal until there was a final, appealable order). Once the trial court granted the Rule 52(b)
motion, the deemed denied provisions of either rule could no longer be applied to the motion. Furthermore,
once the trial court asserted its jurisdiction pursuant to Rule 52(b), its jurisdiction continues. Nothing in
Rule 52(b) limits the court’s jurisdiction once it reasserts it by granting the motion. Any limitation is
inconsistent with the trial court’s inherent authority.
We must presume that the trial court in this case granted the Rule 52(b) motion because the trial
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court held a hearing pursuant to the motion and nothing in the record demonstrates that the trial court
granted the motion outside of the thirty days. This case is unlike cases where a trial court granted or denied
a new trial after the thirty days and the grant or denial in the record was itself evidence that the trial court
acted outside of its jurisdiction. See McCoy v. Moore, 338 Ark. 740, 1 S.W.3d 11 (1999); Ark. State
Highway Comm’n v. Ayres, 311 Ark. 212, 842 S.W.2d 853 (1992).
The majority’s interpretation essentially rewrites Rule 52(b) to require that the court enter a written
order granting the motion within thirty days of the filing of the motion or forfeit its jurisdiction. It is
inappropriate for us to interpret Rule 52(b) as limiting the trial court’s inherent authority without a clear
expression of that intent within the rule itself or by the supreme court. Accordingly, I would find that the trial
court had jurisdiction to enter its modified order and reach the merits of the case.
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