{ "id": 3507860, "name": "Damiyan Lamar WATSON v. Gloria June CONNORS", "name_abbreviation": "Watson v. Connors", "decision_date": "2008-01-10", "docket_number": "07-208", "first_page": "56", "last_page": "62", "citations": [ { "type": "official", "cite": "372 Ark. 56" }, { "type": "parallel", "cite": "270 S.W.3d 826" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "342 Ark. 681", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1342416 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/342/0681-01" ] }, { "cite": "370 U.S. 626", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6169566 ], "year": 1962, "pin_cites": [ { "page": "633" } ], "opinion_index": 0, "case_paths": [ "/us/370/0626-01" ] }, { "cite": "200 S.W.3d 400", "category": "reporters:state_regional", "reporter": "S.W.3d", "year": 2005, "pin_cites": [ { "parenthetical": "noting that, even though a court is mandatorily required to grant an extension of time to file a notice of appeal when the attorney has not received notice of the entry of the ordered appealed from, the rule \"[did] not, however, relieve an attorney of acting diligently\"" } ], "opinion_index": 0 }, { "cite": "360 Ark. 222", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5461008 ], "year": 2005, "pin_cites": [ { "parenthetical": "noting that, even though a court is mandatorily required to grant an extension of time to file a notice of appeal when the attorney has not received notice of the entry of the ordered appealed from, the rule \"[did] not, however, relieve an attorney of acting diligently\"" } ], "opinion_index": 0, "case_paths": [ "/ark/360/0222-01" ] }, { "cite": "353 Ark. 201", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1155513 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/353/0201-01" ] }, { "cite": "195 S.W.3d 903", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 3713203 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/ark/359/0234-01" ] }, { "cite": "368 Ark. 641", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3799956 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/ark/368/0641-01" ] }, { "cite": "224 S.W 959", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1920, "opinion_index": 0 }, { "cite": "145 Ark. 502", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1586203 ], "year": 1920, "opinion_index": 0, "case_paths": [ "/ark/145/0502-01" ] }, { "cite": "264 Ark. 69", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1668866 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "74", "parenthetical": "citing Awbrey v. Hoopes, 145 Ark. 502, 224 S.W 959 (1920)" }, { "page": "45", "parenthetical": "citing Awbrey v. Hoopes, 145 Ark. 502, 224 S.W 959 (1920)" } ], "opinion_index": 0, "case_paths": [ "/ark/264/0069-01" ] }, { "cite": "222 Ark. 892", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1652847 ], "weight": 2, "year": 1954, "pin_cites": [ { "page": "895" }, { "page": "911" } ], "opinion_index": 0, "case_paths": [ "/ark/222/0892-01" ] }, { "cite": "80 Ark. App. 416", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142166 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "421", "parenthetical": "Rule 60(a" }, { "page": "442", "parenthetical": "Rule 60(a" } ], "opinion_index": 0, "case_paths": [ "/ark-app/80/0416-01" ] }, { "cite": "339 Ark. 25", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 130698 ], "weight": 7, "year": 1999, "pin_cites": [ { "page": "28" }, { "page": "78", "parenthetical": "emphasis added" }, { "page": "29" }, { "page": "79", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/ark/339/0025-01" ] }, { "cite": "26 Ark. App. 283", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141616 ], "weight": 3, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark-app/26/0283-01" ] }, { "cite": "271 Ark. 572", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1756118 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/271/0572-01" ] }, { "cite": "362 Ark. 329", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3559817 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/ark/362/0329-01" ] }, { "cite": "346 Ark. 259", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1111303 ], "weight": 15, "year": 2001, "pin_cites": [ { "page": "263" }, { "page": "161" }, { "page": "261-62" }, { "page": "160" }, { "page": "262" }, { "page": "160" }, { "page": "263" }, { "page": "160-61" }, { "page": "263" }, { "page": "161", "parenthetical": "emphasis added" }, { "page": "261" }, { "page": "159", "parenthetical": "holding that, because the matter involved relief from a judgment or order issued in 1999, the 1999 version of Ark. R. Civ. P. 60 applied" } ], "opinion_index": 0, "case_paths": [ "/ark/346/0259-01" ] } ], "analysis": { "cardinality": 708, "char_count": 14967, "ocr_confidence": 0.777, "pagerank": { "raw": 2.3071517362908235e-07, "percentile": 0.7880339741815063 }, "sha256": "63ee4f459933ddac11e9dd26f478b9efdc199fe61566d8133b5f00491960ed6d", "simhash": "1:81aeb67bda656641", "word_count": 2585 }, "last_updated": "2023-07-14T22:33:19.424661+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Damiyan Lamar WATSON v. Gloria June CONNORS" ], "opinions": [ { "text": "Tpm Glaze, Justice.\nThis appeal asks whether an order of dismissal entered pursuant to Ark. R. Civ. P. 41(b) \u2014 but entered without notice to the parties \u2014 constitutes a \u201cclerical error\u201d that can be corrected at any time pursuant to Ark. R. Civ. P. 60(b).\nAppellant Damiyan Watson and Appellee Gloria Connors were involved in an automobile accident on January 19, 2001. After filing his initial complaint, Watson took a voluntary nonsuit of the action on September 16, 2002. On August 19, 2003, Watson filed another complaint against Connors, and Connors filed her answer on September 9, 2003. No further action was taken in the case, and on March 3, 2005, the Pulaski County Circuit Court entered an order dismissing the case \u201cfor lack of action in accordance with Rule 41(b) of the Arkansas Rules of Civil Procedure, all requirements thereof having been accomplished.\u201d\nOn November 6, 2006, Watson filed a motion to set aside the order of dismissal, alleging that he did not learn of the order of dismissal until he requested a trial setting. He further contended that, although the order recited that compliance had been had with Rule 41(b), the record on file with the Pulaski County Circuit Clerk\u2019s office contained no indication that the court had sent notice to the parties of the pending dismissal. Because of the court\u2019s failure to provide such notice, Watson argued that the case should be reinstated pursuant to Ark. R. Civ. P. 60(b). Connors responded on November 13, 2006, denying that Rule 60(b) could afford Watson any relief.\nThe trial court entered an order on November 29, 2006, denying Watson\u2019s motion to set aside the dismissal. In its order, the court found that, pursuant to Rule 60(b), it lacked jurisdiction to modify or vacate the earlier order. Citing Wal-Mart Stores, Inc. v. Taylor, 346 Ark. 259, 57 S.W.3d 158 (2001), the court found that \u201cwhere an order is entered by a court in error, such entry is not considered a clerical error, and the court loses the authority to modify or vacate that order after ninety days.\u201d Watson filed this appeal on December 13, 2006, and continues his argument that the trial court should have set aside the Rule 41 dismissal.\nIt is within the discretion of the circuit court to determine whether it has jurisdiction under Rule 60 to set aside a judgment, and the question on appeal becomes whether there has been an abuse of that discretion. See New Holland Credit Co. v. Hill, 362 Ark. 329, 208 S.W.3d 191 (2005); Burns v. Madden, 271 Ark. 572, 609 S.W.2d 55 (1980); Hendrix v. Hendrix, 26 Ark. App. 283, 764 S.W.2d 472 (1989).\nAs stated above, the trial court dismissed Watson\u2019s complaint for want of prosecution pursuant to Ark. R. Civ. P. 41(b), which provides as follows:\nIn any case in which there has been ... no action shown on the record for the past 12 months, the court shall cause notice to be mailed to the attorneys of record, and to any party not represented by an attorney, that the case will be dismissed for want of prosecution unless on a stated day application is made, upon a showing of good cause, to continue the case on the court\u2019s docket. A dismissal under this subdivision is without prejudice to a future action by the plaintiff unless the action has been previously dismissed, whether voluntarily or involuntarily, in which event such dismissal operates as an adjudication on the merits.\nAt issue here is whether the court\u2019s failure to send the notice required by Rule 41(b) constituted a \u201cclerical error\u201d as contemplated by Ark. R. Civ. P. 60(b), such that the court could have corrected that error \u201cat any time.\u201d Rule 60(b) provides, in pertinent part, that, \u201c[notwithstanding subdivision (a) of this rule, the court may at any time, with prior notice to all parties, correct clerical mistakes in judgments, decrees, orders, or other parts of the record and errors therein arising from oversight or omission.\u201d (Emphasis added.)\nWatson argues that the Rule 41(b) dismissal without notice constituted either a \u201cclerical error\u201d or an \u201cerror[ ] . . . arising from oversight or omission.\u201d A \u201cclerical error,\u201d according to Black\u2019s Law Dictionary, is an \u201cerror resulting from a minor mistake or inadvertence, especially] in writing or copying something on the record, and not from judicial reasoning or determination.\u201d Black\u2019s Law Dictionary 581 (8th ed. 2004). Black\u2019s provides some examples of clerical errors, listing errors such as \u201comitting an appendix from a document; typing an incorrect number; mistranscribing a word; and failing to \u00cdog a call.\u201d Id.\nThis court has held that \u201cwhere an order is entered by the court in error, it is not a clerical error.\u201d Wal-Mart Stores, Inc. v. Taylor, 346 Ark. 259, 263, 57 S.W.3d 158, 161 (2001). In Taylor, the plaintiff, Taylor, brought a personal-injury case in 1991 in St. Francis County Circuit Court, where the matter was assigned to a judge and given the docket number CIV91-75. Taylor later obtained a dismissal without prejudice during trial in June of 1996. When Taylor refiled her complaint five months later, it was assigned to a different judge with a docket number of CIV96-358. Despite the matter being assigned to a different court, the St. Francis County Clerk\u2019s office generated a notice under CIV91-75 that there had been no action in the case for more than twelve months. For some reason, the clerk\u2019s office later generated an identical notice, but this one reflected the CIV96-358 docket number and gave Taylor ten days to show why the case should not be dismissed. Taylor, 346 Ark. at 261-62, 57 S.W.3d at 160. Nothing happened within that ten days, and the court dismissed CIV96-358. Seventeen months after the dismissal, Taylor filed a motion to vacate the order of dismissal. The trial court granted the motion and reinstated the case, and Wal-Mart appealed, arguing that Taylor\u2019s motion to vacate the order of dismissal was untimely Id. at 262, 57 S.W.3d at 160.\nOn appeal, this court pointed out that Rule 60 had been modified in 2000 to reflect this court\u2019s holding in Lord v. Mazzanti, 339 Ark. 25, 2 S.W.3d 76 (1999), wherein the court held that \u201cclerical mistakes\u201d under then-existing subdivision (a) could be corrected at any time. In the amendment to Rule 60, the discussion of \u201cclerical errors\u201d was moved from paragraph (a) to paragraph (b), and the discussion of vacation or modification of judgments and orders to prevent the miscarriage of justice was moved from paragraph (b) to paragraph (a). Taylor, 346 Ark. at 263, 57 S.W.3d at 160-61. The court then wrote as follows:\nIn the case before us, Taylor did not attempt to vacate the order of dismissal until seventeen months had passed. This is significant because if the error is not clerical, but rather an error by the court, then the trial court was without jurisdiction to entertain the motion and enter the order reinstating the case in 1999. The first issue we must decide then is whether the error was a clerical error or misprision. In Mazzanti, supra, this court held that under then-existing Ark. R. Civ. P. 60(a), a clerical error could be corrected at any time, even after ninety days have passed. It does not appear the error in this case was a clerical error or misprision.\nId. at 263, 57 S.W.3d at 161 (emphasis added).\nIn the present appeal, Watson argues that Taylor is inapplicable to his situation, because it was decided under the pre-Mazzanti version of Rule 60. See Taylor, 346 Ark. at 261, 57 S.W.3d at 159 (holding that, because the matter involved relief from a judgment or order issued in 1999, the 1999 version of Ark. R. Civ. P. 60 applied). Watson urges that the result in this case would have been different had this dismissal taken place before the 2000 amendment. However, the language permitting a clerical error to be corrected \u201cat any time\u201d appears in both the 1999 version of the rule, see Ark. R. Civ. P. 60(a) (1999), and in versions of the rule after 2000. See, e.g., Ark. R. Civ. P. 60(b) (2007). The Addition to the Reporter\u2019s Notes concerning the 2000 amendment makes the purpose of the amendment clear:\nThis amendment is consistent with Lord v. Mazzanti, supra. As amended, subdivision (a) is a slightly modified version of former subdivision (b). It states the general rule that the court may, with prior notice to all parties, modify a judgment, decree or order within 90 days of its filing with the clerk to \u201ccorrect errors or mistakes or to prevent the miscarriage of justice.\u201d Revised subdivision (b) expressly states an exception for \u201cclerical mistakes\u201d and errors \u201carising from oversight or omission,\u201d which may be corrected at any time with prior notice to all parties.\nThus, the language in Taylor stating that \u201cwhere an order is entered by the court in error, it is not a clerical error,\u201d was not affected by the amendment to Rule 60. The effect of the rule is the same; it is only clerical errors that may be corrected at any time. Stated another way, when the error is not a clerical error, it cannot be corrected \u201cat any time,\u201d but must be corrected within the ninety days provided in Rule 60(a), which allows for corrections of \u201cerrors or mistakes or to prevent the miscarriage of justice.\u201d\nOur conclusion is bolstered by the fact that, in Lord v. Mazzanti, this court noted that the then-Rule 60(a) (now Rule 60(b)) was \u201cmerely a restatement of Arkansas\u2019s well-settled law, empowering a trial court to enter nuncpro tunc judgments to cause the record to speak the truth.\u201d Lord v. Mazzanti, 339 Ark. at 28, 2 S.W.3d at 78 (emphasis added). The Lord court further commented that the rule embodies \u201ca trial court\u2019s power to correct mistakes or errors ... to make the record speak the truth, but not to make it speak what it did not speak but ought to have spoken.\u201d Id. at 29, 2 S.W.3d at 79 (emphasis added). In this case, to \u201ccorrect\u201d the trial court\u2019s error in the manner Watson suggests would be making the record speak what it did not speak but ought to have spoken. Cf. Fritzinger v. Beene, 80 Ark. App. 416, 421, 97 S.W.3d 440, 442 (2003) (Rule 60(a), as amended in 2000, allows the trial court not only to correct errors or mistakes, but also to \u201cprevent the miscarriage ofjustice,\u201d a phrase that is not limited to clerical errors; a \u201ctrial court has broad authority to correct non-clerical errors or mistakes so as to prevent the miscarriage ofjustice\u201d within ninety days).\nMoreover, to the extent that Watson argues that the failure to notify him of the order of dismissal \u201ceffectively dispossessed [him] of any opportunity to contest the entry of the order until the existence of the dismissal order was made known\u201d to him, it should be pointed out that every party and attorney bears a degree of responsibility for keeping up with the posture of his or her case. This court has held that it is \u201cwell settled that a judgment will not be vacated where the party against whom it is rendered totally fails to show legal diligence.\u201d See Anderson v. Melton, 222 Ark. 892, 895, 263 S.W.2d 909, 911 (1954). A party\u2019s lack of diligence is \u201csignificant ... to our consideration of the question of abuse of discretion.\u201d See Jetton v. Fawcett, 264 Ark. 69, 74, 568 S.W.2d 42, 45 (1978) (citing Awbrey v. Hoopes, 145 Ark. 502, 224 S.W 959 (1920)).\nIt is true that the language of Rule 41(b) provides that a court \u201cshall cause notice to be mailed to the attorneys of records,\u201d and we have consistently construed the word \u201cshall\u201d to mean mandatory compliance. See, e.g., Aikens v. State, 368 Ark. 641, 195 S.W.3d 903 (2007); Ray & Sons Masonry Contractors, Inc. v. U.S. Fid. & Guar. Co., 353 Ark. 201, 114 S.W.3d 189 (2003). However, we have also stated that, even in the face of language mandating that a court \u201cshall\u201d take a given action, an attorney is nonetheless not relieved of acting diligently. See ARKCO Corp. v. Askew, 360 Ark. 222, 200 S.W.3d 400 (2005) (noting that, even though a court is mandatorily required to grant an extension of time to file a notice of appeal when the attorney has not received notice of the entry of the ordered appealed from, the rule \u201c[did] not, however, relieve an attorney of acting diligently\u201d).\nHere, after the filing of the complaint, Watson and his counsel failed to contact the court for a status update or a trial setting, or, apparently, for any other reason for over three years. (The complaint was filed on August 19, 2003, and the motion to set aside the order of dismissal was filed on November 6, 2006.) This court will not countenance Watson\u2019s lack of diligence by allowing him to set aside an order of dismissal in a case in which, by all appearances, he had no interest for over three years, especially when the error is not one that could be corrected \u201cat any time\u201d under Rule 60(b).\nAlthough Watson complains of the \u201cobvious\u201d \u201cunfairness of the circumstances,\u201d the Supreme Court has held that the \u201cadequacy of notice and hearing respecting proceedings that may affect a party\u2019s rights turns, to a considerable extent, on the knowledge which the circumstances show such party may be taken to have of the consequences of his own conduct.\u201d Link v. Wabash Railroad Co., 370 U.S. 626, 633 (1962). Here, Watson took no interest or action in his case for over three years. Because Watson and his attorney should have been aware of the circumstances (and of the possibility that the case might be dismissed pursuant to Rule 41(b) for failure to prosecute), it cannot be said that the trial court abused its discretion in denying Watson\u2019s motion to set aside the order of dismissal.\nIn her response to Watson\u2019s motion to set aside the order of dismissal, Connors asserted that she learned of the dismissal on October 27,2005, when she called to request a trial setting. Upon being informed that the court had dismissed the case some seven months earlier, Connors\u2019s attorney closed the file on her case on November 3,2005.\nWatson attached affidavits from his attorney and two paralegals at the attorney\u2019s law firm; all of the affidavits averred that no one had ever received correspondence from the court indicating an intent to dismiss the matter pursuant to Rule 41.\nThe 1999 version of Rule 60(a) provided, in pertinent part, that \u201c[\u00bf\u00a1ierical mistakes in judgments, orders, or other parts of the records and errors therein arising from oversight or omission may be corrected by the court at any time on its own motion or on the motion of any party and after such notice, if any, as the court orders.\u201d (Emphasis added.)\nWatson briefly raises a due-process argument in his brief; however, he did not raise this argument in his pleadings before the trial court, and he is accordingly barred from raising it now. See Qualls v. White, 342 Ark. 681, 30 S.W.3d 735 (2000).", "type": "majority", "author": "Tpm Glaze, Justice." } ], "attorneys": [ "Eubanks, Baker & Schulze, by: J.G. \u201cGerry\u201d Schulze, for appellant.", "Matthews, Sanders & Sayes, by: Doralee I. Chandler and Roy Gene Sanders, for appellee." ], "corrections": "", "head_matter": "Damiyan Lamar WATSON v. Gloria June CONNORS\n07-208\n270 S.W.3d 826\nSupreme Court of Arkansas\nOpinion delivered January 10, 2008\nEubanks, Baker & Schulze, by: J.G. \u201cGerry\u201d Schulze, for appellant.\nMatthews, Sanders & Sayes, by: Doralee I. Chandler and Roy Gene Sanders, for appellee." }, "file_name": "0056-01", "first_page_order": 80, "last_page_order": 86 }