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DANNY LEWIS AND TAMI LEWIS v. DANNY JEWELL; CHARLOTTE JEWELL; AND CHANDLER INSURANCE AGENCY, INC.
Case Number: 2020 Ark. App. 184
Judge: ROBERT J. GLADWIN
Court: ARKANSAS COURT OF APPEALS
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The Jewells filed a complaint alleging that appellants had defaulted on two
promissory notes and owed them approximately $20,000. Appellants filed a counterclaim
against the Jewells and alleged intentional-defamatory torts against Danny Lewis.
Appellants also filed a third-party complaint against Chandler for recovery of alleged
investments in excess of $50,000 and for income and shareholder distributions owed them.
Finally, appellants claimed that appellees stripped Danny Lewis of his Arkansas insurance
license without cause or due process. Chandler filed a counterclaim against appellants
alleging breach of fiduciary duty and fraudulent concealment.
After a jury trial, final judgment was filed on January 15, 2019, wherein the Jewells
were awarded $21,288.86 on their breach-of-contract claims and attorney’s fees of
$4,933.26. Chandler was awarded $48,510 in compensatory damages based on appellants’
“fraudulent breach of fiduciary duty.” Chandler was also awarded $38,264.87 in attorney’s
fees and expenses and $7,500 for “reasonable and necessary attorney’s fees and expenses to
be incurred in this matter for entry of judgment, postjudgment discovery, enforcement of
judgment, and any appeal which may follow.”
Appellants filed a motion to correct and amend judgment on January 21 arguing
that the judgment’s inclusion of the word “fraudulent” does not comport with the jury’s
verdict. Appellants moved that the judgment be amended by striking “fraudulent”
pursuant Arkansas Rule of Civil Procedure 52(b)(1) (2019). Appellants stated in their
motion that the attorney’s-fee award to Chandler on the breach-of-fiduciary-duty claim
should be struck. Chandler responded and argued that it was entitled to attorney’s fees as
the prevailing party and that “fraudulent” should remain in the judgment.
On March 11, the circuit court denied appellants’ motion to correct and amend the
judgment. Appellants filed a notice of appeal on March 27, and they filed an amended
notice of appeal on May 28.1
Our supreme court has held that the lack of a timely notice of appeal deprives the
appellate court of jurisdiction and is an issue the appellate court must raise sua sponte. Ellis
v. Ark. State Hwy. Comm’n, 2010 Ark. 196, 363 S.W.3d 321. Whether an appellant has
filed a timely and effective notice of appeal is always an issue before an appellate court;
absent an effective notice of appeal, we lack jurisdiction to consider the appeal and must
dismiss it. Worsham v. Day, 2017 Ark. 192, at 3–4, 519 S.W.3d 699, 701.
Rule 4 of the Arkansas Rules of Appellate Procedure–Civil, states:
(1) Upon timely filing in the circuit court of a motion for judgment
notwithstanding the verdict under Rule 50(b) of the Arkansas Rules of Civil
Procedure, a motion to amend the court’s findings of fact or to make additional
findings under Rule 52(b), a motion for a new trial under Rule 59(a), or any other
motion to vacate, alter, or amend the judgment made no later than 10 days after entry
of judgment, the time for filing a notice of appeal shall be extended for all parties.
The notice of appeal shall be filed within thirty (30) days from entry of the order
disposing of the last motion outstanding. However, if the circuit court neither
grants nor denies the motion within thirty (30) days of its filing, the motion shall be
deemed denied by operation of law as of the thirtieth day, and the notice of appeal shall be
filed within thirty (30) days from that date.
1Appellees filed a motion to dismiss appeal with this court on August 16, arguing
that appellants’ failure to file a complete record as designated in their notices of appeal
prejudiced and deprived them of their opportunity to refer this court to evidence and
testimony that is relevant to a decision on appeal. See Ark. R. App. P.–Civ. 3 (2019).
Appellants responded that a partial transcript is all that is necessary for a decision on
appeal. This court passed the motion until the case was submitted. Because we lack
jurisdiction on appeal, appellees’ motion is moot.
Ark. R. App. P.–Civ. 4(b)(1) (2019) (emphasis added).
Appellants’ motion to correct and amend judgment was filed on January 21, 2019,
which was within ten days of entry of the final judgment on January 15. When no order
was entered by February 20, the motion was deemed denied. Accordingly, appellants’
notice of appeal was due within thirty days following, which was March 22. However,
appellants did not file their notice of appeal until March 27; thus, the notice of appeal was
not timely filed, and this court lacks jurisdiction.
When the trial court fails to act within the thirty-day period under Rule 4(b)(1), it
loses jurisdiction to consider a motion to amend filed within ten days of the judgment. See
Murchison v. Safeco Ins. Co. of Ill., 367 Ark. 166, 238 S.W.3d 11 (2006); Williams v. Hudson,
320 Ark. 635, 898 S.W.2d 465 (1995). The fact that the circuit court filed an order
denying the motion after the thirty-day time period makes no difference. See Williams v.
Office of Child Support Enf’t, 2013 Ark. App. 472 (motion for new trial was deemed denied
by operation of law leaving circuit court without jurisdiction to enter an order denying the
motion four days later; notice of appeal must be filed within thirty days from the deemeddenied date).
Outcome: Accordingly, this court does not have jurisdiction, and the appeal is