Sargent v. Springer
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Cite as 2010 Ark. 43
SUPREME COURT OF ARKANSAS
No.
ALAN SARGENT,
10-27
Opinion Delivered
APPELLANT,
VS.
WILLIAM SPRINGER,
APPELLEE,
January 28, 2010
MOTION FOR RULE ON CLERK
AND MOTION FOR EXTENSION
OF TIME TO FILE RECORD ON
APPEAL
GRANTED.
PER CURIAM
Alan Sargent, by his attorney, Michael R. Lipscomb, has filed a motion for rule on the
clerk asserting that the clerk erred in refusing to lodge his record on appeal. Sargent appeals
from an order granting summary judgment in favor of appellee, William Springer. That order
was entered on September 23, 2009, by the circuit court. Sargent then filed a motion to
reconsider on October 15, 2009. That motion was denied on October 19, 2009.
Sargent filed a notice of appeal on October 21, 2009. The notice of appeal was filed
within the requisite thirty days under Ark. R. App. P.—Civil 4(a)(2009). Sargent filed his
record with the clerk on January 6, 2010. This falls within the ninety-day time limit imposed
by Ark. R. App. P.—Civil 5(a)(2009). In his motion for rule on clerk, Sargent states that the
clerk would not file the record on appeal because the motion to reconsider had not been filed
within ten days of the ruling as required by Ark. R. Civ. P. 59(b)(2009).
Cite as 2010 Ark. 43
It is true that Sargent’s motion to reconsider was not timely under Ark. R. Civ. P.
59(b), which requires such a motion to be filed within ten days after the entry of judgment.
However, Sargent was not required to file the motion to reconsider in order to preserve his
challenge to the order granting summary judgment. Ark. R. Civ. P. 59(f) (“A party who has
preserved for appeal an error that could be the basis for granting a new trial is not required
to make a motion for new trial as a prerequisite for appellate review of that issue.”).
Because Sargent’s notice of appeal and tendering of the record were both timely, we
direct the Supreme Court Clerk to file the record in this case and to set a briefing schedule.
Motion for rule on clerk granted.
Sargent also filed a motion for extension of time to file the record on appeal. Because
his motion for rule on clerk has been granted, his motion for extension of time is moot.
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