Jerry L. Ross v. Southern Farm Bureau Casualty Insurance Co.

Jerry L. ROSS v. SOUTHERN FARM BUREAU
CASUALTY INS. CO.

97-995                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered May 14, 1998


1.   Civil procedure -- Ark. R. Civ. P. 60(a) -- power of trial
     court to set aside or modify order. -- Under Ark. R. Civ. P.
     60(a), the trial court has the power, at any time, to correct
     clerical mistakes in judgments, orders or other parts of the
     record and errors therein arising from oversight or omission;
     however, Rule 60(b) states that a trial court may set aside or
     modify an order only if it does so within ninety days of the
     entry of the original order.  

2.   Civil procedure -- Ark. R. Civ. P. 60(b) -- ninety-day limit
     applies to clerical errors. -- The reference to "miscarriage
     of justice" in Ark. R. Civ. P. 60(b) is to those clerical
     errors or mistakes described in Rule 60(a), and the supreme
     court applies a ninety-day limit; thus, the ninety-day
     requirement in Rule 60(b) applies to clerical errors.

3.   Civil procedure -- unclear whether error was clerical --
     ninety-day limit on modification by trial court applicable. --
     There was some doubt whether the error in this case could
     properly be characterized by the parties as "clerical";
     whether it was a clerical error or some other type of
     oversight, Ark. R. Civ. P. 60(b)'s ninety-day limit on
     modification applied, and the trial court lost jurisdiction to
     amend the order of dismissal ninety days after the order was
     entered; the case was reversed and dismissed.


     Appeal from Lee Circuit Court; Harvey L. Yates, Judge;
reversed and remanded.
     Bulter, Hicky & Long, by: Rita Reed Harris, for appellant.
     Easley, Hicky, Cline & Hudson, by:  Michael B. Easley and
Daggett, Van Dover, Donovan & Perry, by: Robert J. Donovan, for
appellee.

     David Newbern, Justice. 
     More than ninety days after entering an order of dismissal of
a personal injury and property damage claim brought by Jerry L.
Ross, the Trial Court entered orders purporting to modify its 
dismissal order.  We hold that the Trial Court lacked jurisdiction
to modify the order.
     Mr. Ross drove a vehicle that was struck from behind by
one owned by Clay Vanoven.  Mr. Vanoven's vehicle was being driven
by Troy Osbourne with Mr. Vanoven as a passenger.  Mr. Ross sued
Mr. Osbourne for negligent operation of the vehicle, and he sued
Mr. Vanoven for negligent entrustment of his vehicle to Mr.
Osbourne.  Among the allegations were claims that Mr. Osbourne was
driving too fast and was intoxicated at the time of the accident. 
To his claim against those two defendants, Mr. Ross joined a claim
against Southern Farm Bureau Insurance Co. ("Southern Farm"),
alleging that Southern Farm would be liable on Mr. Ross's
underinsured-motorist coverage with that Company.
     Attorney Bob Donovan represented Mr. Osbourne and Mr. Vanoven. 
They agreed to settle the claim for $25,000, which was the policy
limit on the insurance covering Mr. Vanoven's vehicle.  Mr. Donovan
sent a draft of a release agreement and a draft of an order of
dismissal to Attorney Michael Easley who represented Mr. Ross.  
     On September 9, 1996, the Trial Court entered the following
order: "Upon motion of the parties it appears to the court that
this case has been settled and that the complaint of the plaintiff
should be and is hereby dismissed with prejudice.  All claims
asserted and all claims that could have been asserted are forever
barred."  The order was signed by Judge Harvey Yates and signed as
"approved" by Mr. Easley and Mr. Donovan.  Identical orders were
entered two additional times, on September 12 and 18, 1996,
apparently as the result of confusion in Mr. Donovan's law firm as
to who was responsible for filing it.
     Later it was realized that the effect of the order was to
dismiss Mr. Ross's claim for underinsured-motorist coverage against
Southern Farm.  Without giving notice to Southern Farm or its
attorney, Phil Hickey, Mr. Donovan presented a "Corrected Order of
Dismissal with Prejudice by Reason of Settlement" that provided, 

          Upon oral motion of the Defendants, Osbourne and VanOven
     pursuant to Rule 60(a), ARCP, it appears to the court that
     this case was settled by them only and that the complaint of
     the plaintiff as to Defendants Osbourne and VanOven only,
     should be and is hereby dismissed with prejudice.  All claims
     asserted and all claims that could have been asserted against
     said defendants are forever barred.
          IT IS SO ORDERED pursuant to Rule 60(c) ARCP.

That order was signed by the court and as "approved" by Mr.
Donovan.  On the following day, February 6, 1997, yet another
"Order of Dismissal With Prejudice By Reason Of Settlement" was
filed.  This one provided,

          Upon motion of the parties, it appears to the Court that
     this case has been settled, with Defendants Troy P. Osbourne
     and Clay Vanoven, and that the Complaint of the Plaintiff,
     insofar as it makes a claim against said Defendants, should be
     and is hereby dismissed with prejudice.  All claims asserted
     and all claims that could have been asserted against those
     Defendants are forever barred.
          The purpose of this Order is to amend the Order dated  
and filed September 9, 1996.

It was signed by the court and as "approved" by Mr. Easley and Mr.
Donovan.
     On April 3, 1997, Mr. Hickey moved on behalf of Southern Farm
to extend the time for filing a notice of appeal from the February
orders.  The motion was supported by his affidavit stating that he
had not received notice of those orders and had only learned of
them on or about March 21, 1997.  
     On April 10, 1997, Mr. Easley, on behalf of Mr. Ross,
apparently recognizing that the February orders were possibly
ineffective as they were entered more than ninety days after the
September 1996 order of dismissal, moved to amend corrected orders,
stating, in part, the following:

     Subsequent to September 18, 1996, and after ninety (90)
     days, the Court entered two (2) separate orders, one
     filed February 5 and the other filed February 6, 1997,
     correcting the Order of September 18, 1996.  Neither the
     February 5, 1997, nor February 6, 1997, Order proposes to
     dismiss Defendant, Southern Farm Bureau Casualty
     Insurance Company.  Plaintiff requests a third Order be
     entered nunc pro tunc to reflect that Defendant, Southern
     Farm Bureau Insurance Company is not dismissed from the
     case.

     At a hearing held on April 11, 1997, the Trial Court
considered Southern Farmþs motion to extend the time to file its
notice of appeal and the motion of Mr. Osbourne and Mr. Vanoven to
amend the February orders.  The resulting order granted Southern
Farmþs motion for an extension to file its notice of appeal.  On
April 24, 1997, Southern Farm filed its Notice of Appeal in which
it appealed the February orders.  On June 10, 1997, the Trial Court
entered an order in which it denied Mr. Rossþs Motion to Amend the
Corrected Orders, stated that Mr. Rossþs motion to correct the
September 18, 1996 order would be in accordance with Ark. R. Civ.
P. 60(a) and (b) and not (c), and set aside the February 5 and 6
orders as improper because the nintey-day period to amend or
correct the September 18 order had expired when the February orders
were entered, and thus the Trial Court lacked jurisdiction.
     On June 16, 1997, Mr. Ross filed his Notice of Appeal with
respect to the June 10, 1997 order.  
     The issue in both Mr. Ross's appeal and Southern Farm's appeal
is whether the Trial Court had lost jurisdiction to modify its
September 1996 order in view of the passage of more than ninety
days from the date it was entered.  According to Ark. R. Civ. P.
60(a), the Trial Court has the power "at any time" to correct
"clerical mistakes in judgments, orders or other parts of the
record and errors therein arising from oversight or omission." 
Rule 60(b), however, contains this language: 
     
     To correct any error or mistake or to prevent the miscarriage
     of justice, a decree or order of a circuit, chancery, or
     probate court may be modified or set aside on motion of the
     court or any party, with or without notice to any party,
     within ninety days of its having been filed with the clerk.
     
See Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997) ("[W]e
have held that a trial court loses jurisdiction to set aside or
modify an order pursuant to Ark. R. Civ. P. 60(b) if it does not do
so within ninety days of the entrance of the original order.").  
     In Phillips v. Jacobs, 305 Ark. 365, 807 S.W.2d 923 (1991), we
held that the reference to "miscarriage of justice" in Rule 60(b)
is to those clerical errors or mistakes described in Rule 60(a),
and we applied the ninety-day limit.  Thus, the ninety-day
requirement in Rule 60(b) applies to clerical errors.       
     There is some doubt whether the error in this case is properly
characterized by the parties as "clerical."  Whether it was a
clerical error or some other type of oversight, Rule 60(b)'s
ninety-day limit on modification applies, and the Trial Court lost
jurisdiction to amend the order of dismissal ninety days after the
September order was entered.            
     Reversed and dismissed.