ROBERT J. GLADWIN, Judge.
The issue before us is whether the trial court abused its discretion in setting aside its dismissal order pursuant to Arkansas Rule of Civil Procedure 60 (2010). We hold that, under a strict application of Rule 60, to set aside the order was an abuse of discretion and reverse the trial court's ruling.
Appellees John and Tasha Sims filed a complaint for breach of contract against John Pinto and appellant Brandy Pinto in Saline County Circuit Court on November 5, 2008. Appellees sought damages against the Pintos related to a residential-construction contract wherein the Pintos agreed to manage the construction of the appellees' house. Appellees alleged in their complaint that they paid the Pintos $60,000 to purchase building materials and subcontract for labor to build the house and that the Pintos failed to pay for the labor or materials.
On January 20, 2009, John Pinto's attorney filed a motion to be relieved from representing both John and Brandy Pinto.
Because there was no longer an attorney of record for either party and no recent activity in the case, the trial court sent the parties a letter in December 2009 indicating that the case would be dismissed if there was not a notification in writing prior to December 30, 2009. On December 17, 2009, David C. Hawkey filed an entry of appearance on behalf of appellees. However, "due to inactivity herein and after notice no objection being offered," an order of dismissal without prejudice was signed and filed on December 30, 2009. Neither party was notified of the dismissal order.
On February 25, 2010, appellees filed a motion for summary judgment based on the admissions of the Pintos, and a hearing was set for April 28, 2010. On May 4, 2010, the case was transferred from second division to fourth division in Saline County Circuit Court.
In order to enforce the judgment, appellees filed a writ of garnishment on appellant Brandy Pinto's employer. On October 5, 2010, the trial court filed an order
The trial court entered an order on November 23, 2010, granting appellant's motion to set aside its order of October 5, 2010, wherein the trial court had vacated its December 30, 2009 dismissal order. However, the trial court entered a new order setting aside the December 30, 2009 dismissal order, describing it as an accidental dismissal. The order states in part:
The trial court's order cites McGibbony v. McGibbony, 12 Ark.App. 141, 671 S.W.2d 212 (1984), and Harrison v. Bradford, 9 Ark.App. 156, 655 S.W.2d 466 (1983), and is premised on its inherent power to enter orders correcting its judgments to make them speak the truth and to reflect its actions accurately.
Appellant filed a motion for reconsideration on December 6, 2010, and the trial court denied it by order filed December 10, 2010. This appeal timely followed.
Arkansas Rule of Civil Procedure 60 provides in pertinent part as follows:
Ark. R. Civ. P. 60(a), (b) & (c)(3)-(4).
It is within the discretion of the circuit court to determine whether it has jurisdiction under Rule 60 to set aside a
Appellant contends that the trial court erred in setting aside its dismissal order of December 30, 2009, arguing that Rule 60 is inapplicable. Appellant maintains that Rule 60(a) does not apply, as the matter before the trial court was clearly outside the ninety-day time limitation. Further, she claims that Rule 60(b) does not apply because there is no evidence of clerical mistake, oversight, or omission. Finally, she argues that Rule 60(c) is inapplicable without further expansion of her argument.
She cites Francis v. Protective Life Ins. Co., 371 Ark. 285, 265 S.W.3d 117 (2007), wherein the Arkansas Supreme Court explained that Rule 60 and case law provide that a circuit court can, at any time, correct clerical mistakes in order to make the record speak now what was actually done then. "This court has defined a true clerical error, one that may be corrected by nunc pro tunc order, as `essentially one that arises not from an exercise of the court's judicial discretion but from a mistake on the part of its officers (or perhaps someone else).' Luckes v. Luckes, 262 Ark. 770, 772, 561 S.W.2d 300, 302 (1978)." Id. at 293, 265 S.W.3d at 123.
Appellant also cites Harrison, supra, where this court did not allow a trial court to modify a divorce decree under Rule 60:
Harrison, 9 Ark.App. at 158, 655 S.W.2d at 468.
Appellant claims that there is no clerical error in the instant case to be corrected under Rule 60(b). She argues that the dismissal order was signed by the presiding judge and was filed of record with the circuit clerk. She contends that if appellees thought the dismissal order was entered as a result of an error or mistake, they had ninety days to present a motion to set aside the court's order under Rule 60(a). She asserts that, outside the ninety-day limitation, mistakes can only be corrected if they are clerical errors, which are caused by mistakes of the officers of the court who incorrectly record what actually took place before the court. She claims that the signing of the December 30, 2009 dismissal order was the action taken by the trial court and that it was not a mistake in recording, or inadvertence or mistake by an officer of the court in recording what actually happened. Therefore, she contends that the December 30, 2009 order cannot be set aside and that the trial court erred in so doing.
We agree. No matter how we torture the facts to fit within the remedy provided under Rule 60, we cannot in good conscience hold that Rule 60 is applicable herein. The Arkansas Supreme Court has
Appellees cite Gholson v. State, 2009 Ark.App. 373, 308 S.W.3d 189, a criminal case that was erroneously dismissed by a nolle prosequi order then continued to hearing on the State's petition to revoke. On appeal, we stated that an order entered in error does not speak the truth, and courts have the power to enter an amended judgment and commitment order nunc pro tunc to correct an erroneous judgment. Id. There, a nolle prosequi order resulted from a mistake by an officer of the court, the prosecutor, by presenting the case to the trial judge as one of many ripe for dismissal after having no activity for a year. Id. After the case was dismissed, all parties proceeded as if the petition to revoke was pending because they were unaware of the nolle prosequi order. Id. We found no error in the trial court's setting aside of the nolle prosequi order. Id. Similar to the State's argument in Gholson, appellees assert that it was not an abuse of discretion for the trial court to set aside the accidental dismissal because substantial evidence indicates that nobody involved with the case was aware that a dismissal was filed on December 30, 2009.
Appellant contends that the distinguishing factor between the instant case and Gholson is that it was never the intention of the circuit judge to dismiss the criminal case against the defendant in Gholson, but it was the intention of the circuit court to dismiss the case at hand if no action was taken by the parties to prevent it. The trial court's error in overlooking the entry of appearance was not clerical in nature, and we agree that appellees had ninety days to ask the trial court to set aside the dismissal order based on the trial court's mistake.
Finally, appellees contend that the trial court properly set aside the accidental dismissal pursuant to Rule 60(c)(3) as a misprision of the clerk. They assert that the clerk continued to accept pleadings from them even after the dismissal order had been filed; that two letters were accepted within ninety days from the dismissal order; a motion for summary judgment was filed; the case was transferred on May 4, 2010; an affidavit of service was filed on May 7, 2010; a summary-judgment order was filed on June 4, 2010; and the clerk never realized that activity was being taken in a closed case. Appellees argue that the clerk's failure to close the case resulted in constructive fraud on the part of the clerk against them. Appellees contend that constructive fraud is a breach of a legal or equitable duty, which, irrespective of the moral guilt or the valid reason, the law declares fraudulent because of its tendency to deceive others, and intent to deceive is not an essential element of constructive fraud. Davis v. Davis, 291 Ark. 473, 725 S.W.2d 845
We disagree with appellees' contention regarding misprision. The trial court signed a dismissal order prior to any alleged wrongdoing on the circuit clerk's part. Because of the trial court's mistake, relief from that judgment could only have been found through Rule 60(a), within ninety days of entry of the dismissal order. To vacate the trial court's order after ninety days based on the circuit clerk's failure to close the case after the dismissal order was filed would be a misapplication of the rule.
Reversed.
WYNNE and GRUBER, JJ., agree.