William P. Dalton, Louis Kovanda, and Eugene Moats v. First State Bank of Warren
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SUPREME COURT OF ARKANSAS
No. 08-822 and 08-899
Opinion Delivered October 9, 2008
W ILLIAM P. D ALTO N , LO U IS
KOVANDA, AND EUGENE MOATS,
APPELLANTS,
PETITION FOR REHEARING ON
MOTIONS TO DISMISS AND RULE
ON CLERK.
VS.
FIRST STATE BANK OF WARREN,
APPELLEE,
PETITION FOR REHEARING ON
MOTION TO DISMISS DENIED;
MOTION FOR RULE ON CLERK
MOOT; SUBSTITUTED OPINION
ISSUED.
PER CURIAM
Appellee First State Bank of Warren requests that the Court dismiss this appeal because
the record was not lodged in a timely fashion.
In Appellee’s suit to enforce a guarantee of a loan by Appellant, the circuit court
granted summary judgment on January 17, 2008, reserving its decision on attorney fees until
a separate judgment regarding the issue could be determined on April 23, 2008. Appellant
filed its first notice of appeal on February 13, 2008, and a second notice of appeal on April 28,
2008. The record was tendered on June 11, 2008.
Appellee argues that failure to file the record within ninety days of the filing of the first
appeal requires dismissal, citing Mitchell v. City of Mountain View, 304 Ark. 585, 803 S.W.2d
556 (1991), and Arkansas Rule of Appellate Procedure-Civil 5(a) and (c).
Appellant, in its answer to motion to dismiss, argues that our court wants one appeal
per case, not piecemeal appeals. Appellant further argues in its supporting brief that the first
notice of appeal was premature because the trial court had not entered a final judgment on
all issues, including that of attorney fees, and that the record was, indeed, timely lodged within
ninety days of Appellant’s second notice of appeal.
Appellee points to Stacks v. Marks, 354 Ark. 594, 127 S.W.3d 483 (2003), for the
proposition that a summary judgment is a final, appealable order. Appellee also argues that
the second judgment for attorney fees and the second notice of appeal are both collateral to
the judgment order.
The Stacks case was before this court on motion to dismiss an appeal of entry of
summary judgment. In Stacks, a motion for attorney fees was filed after the trial court entered
summary judgment. The first notice of appeal was not filed in a timely manner after the entry
of summary judgment, but was timely filed after the post-judgment award of fees, costs, and
interest. However, the post-judgment award made no mention of the summary judgment.
Therefore, we granted the motion to dismiss due to the lack of a timely notice of appeal after
the summary judgment.
Here, the summary judgment was entered, and the first notice of appeal followed in
a timely fashion. No argument is made that an extension of time was requested. However,
summary judgment is not an intermediate order under Rule 2(b), but rather a final, appealable
order which may bring up for review any intermediate order involving the merits and
necessarily affecting the judgment. Stacks, supra (citing Rule 2(b) (2003)). Here, the trial
court noted in the summary judgment order that attorney fees were to be determined at a
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later date. In Stacks, the court established that motions for and orders granting attorney fees
are collateral to the court’s judgment on the merits and will not bring up an earlier granted
summary judgment for review.
We therefore hold pursuant to Rule 5(a) that failure to lodge the record within ninety
days from the first notice of appeal is fatal when no extension of time has been requested and
granted.
Motion to dismiss granted.
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