294 Ark. 506-A, Cigna Ins. Co. v. Brison

• Decision Date: 21 March 1988
• Docket Number: No. 87-181,87-181
• Parties: -A CIGNA INSURANCE CO., Appellant, v. Carrie M. BRISON, Administer of the Estate of Frank Speed, Deceased, Appellee.
• Court: Arkansas Supreme Court

Page 558

746 S.W.2d 558

294 Ark. 506-A

CIGNA INSURANCE CO., Appellant, v. Carrie M. BRISON, Administer of the Estate of Frank Speed Deceased, Appellee.

No. 87-181.

Supreme Court of Arkansas.

March 21, 1988.

Elton A. Rieves, West Memphis, for appellant.

J.L. Wilson, Helena, for appellee.

[294 Ark. 506-B] HAYS, Justice.

Our decision in this case, released on February 16, 1988, was wrong. We dismissed the appeal because we regarded it as an attempt to appeal from an order denying a motion by the defendant, Cigna, to dismiss the action. We said that because the order was not final it was not appealable. Ark.R.App.P. 2; Heffner v. Harrod, 278 Ark. 188, 644 S.W.2d 579 (1983).

By petition for rehearing Cigna has pointed out that such an order is appealable, even though it does not dispose of the action, when it is entered more than ninety days after an earlier order it purports to modify. Thus, in Schueck Steel, Inc. v. McCarthy Bros Co., 289 Ark. 436, 711 S.W.2d 820 (1986), we recognized on rehearing that an order setting aside a default judgment, which ordinarily is not appealable because it is not final, becomes appealable when it is entered more than ninety days after the entry of the default judgment. ARCP 60. Maxwell v. Maxwell, 240 Ark. 29, 397 S.W.2d 788 (1966). The same reasoning applies to this case, and therefore we grant rehearing, reinstate the appeal and consider it on its merit.

As noted in our original opinion, on June 4, 1986, the circuit court entered an order dismissing the claim of the appellee against Cigna and Helena Hospital. Thirteen days later the appellee filed a motion to vacate or reconsider the order. A hearing was held on August 21, and on motion of appellee the hearing was continued until September 15, more than ninety days after the June 4 order. At this point Cigna asked that the motion be denied because it was not filed within ten days of the order, as required by ARCP, Rule 56(b), and because the court had no power to vacate its order after ninety days except in accordance with ARCP, Rule 60(c), the requirements of which were not met nor even alleged.

The motion seems to have been taken under advisement, [294 Ark. 506-C] though we find nothing in the record to that effect. However, on February 19, 1987, the circuit court ordered the reinstatement of the action as to Cigna. Cigna has appealed, and we reverse.

To decide this case on its merit we need look no farther than the fact the trial court did not act on the motion within ninety days. In Burgess v. Burgess, 286 Ark. 497, 696 S.W.2d 312 (1985), we noted that ARCP Rule 60 was intended to retain Arkansas law in effect at the time the rules were adopted. The rule incorporates three methods for correcting a judgment, decree or order after entry. Rule 60(a) deals with clerical mistakes and errors of omission. It has no relevancy here. Rule 60(b) deals with any error or mistake and authorizes the court to modify or set aside a judgment or decree order on its own motion or on the motion of a party "within ninety days of its having been filed with the clerk." Rule 60(c) deals with vacating or modifying a judgment, decree or order after ninety days. There is no contention that it applies to this case.

When the circuit court failed to modify or vacate its June 4 order within ninety days, it lost all power to act under ARCP Rule 60(b). Hayden v. Hayden, 291 Ark. 582, ...