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Reichert v. Smith

Court of Appeals of Arkansas, Division I

June 1, 2016

MICHAEL REICHERT, APPELLANT
v.
AMY SMITH, APPELLEE

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTEENTH DIVISION [NO. 60DR-14-3088] HONORABLE VANN SMITH, JUDGE

Kris M. Boyd and J.P. Longacre, for appellant.

Wagoner Law Firm, P.A., by: Jack Wagoner III and Harrison Kemp, for appellee.

BRANDON J. HARRISON, Judge

Michael Reichert appeals the Pulaski County Circuit Court's denial of his motion to reconsider the court's denial of his motion for relief pursuant to Rule 60 of the Arkansas Rules of Civil Procedure. We dismiss the appeal.

On 16 July 2014, Amy Smith filed a petition for an order of protection and alleged that she had been abused and threatened by Reichert. After a hearing, the circuit court entered a two-year order of protection against Reichert on 12 August 2014. Ninety days later, on 10 November 2014, Reichert filed a motion pursuant to Rule 60, alleging that Smith perpetrated misrepresentation and fraud on the court and asking that the order of protection be dismissed. No action was taken on this motion until 5 May 2015, when the circuit court issued an order denying the Rule 60 motion. Twenty-four days later, on 29 May 2015, Reichert moved the court to reconsider the denial of his Rule 60 motion. The circuit court denied the motion for reconsideration on 29 June 2015, and Reichert filed a notice of appeal on 28 July 2015.

On 12 January 2016, Smith moved this court to dismiss Reichert's appeal for lack of jurisdiction. Smith argues that (1) Reichert did not file a notice of appeal within thirty days from the date that the order of protection was issued, nor did he file a postjudgment motion within ten days after the order of protection had been filed, so the time to file a notice of appeal from that order was not extended; and (2) Reichert did not file a notice of appeal within thirty days from the date that the Rule 60 motion was denied, nor did he file a postjudgment motion within ten days of the denial of the Rule 60 motion, so the time to file a notice of appeal from that denial was not extended.

The final question, according to Smith, is whether Reichert can independently appeal the order denying his motion for reconsideration. She acknowledges that there is no Arkansas case law on point but cites the Georgia Court of Appeals to support the argument that Reichert cannot appeal the denial of his motion to reconsider. See Savage v. Newsome, 326 S.E.2d 5, 5 (Ga.Ct.App. 1985) ("It is well established that the denial of a motion for reconsideration of an appealable order or judgment is not itself appealable and does not extend the time for filing a notice of appeal."). The bottom line is that Smith wants this court to dismiss the appeal for lack of jurisdiction because Reichert failed to preserve a right to appeal from both the order of protection and the order denying his Rule 60 motion.

Reichert believes that his motion to reconsider was essentially a second Rule 60 motion. He argues that because orders of protection are equitable in nature and provide injunctive relief-and because a circuit court retains continuing jurisdiction to modify an order of protection-the circuit court should have reviewed both of his Rule 60 motions "as motions to which the Rule's 90-day limitation did not apply."

Because we determine our jurisdiction to hear an appeal, we do not rely entirely on the parties' analysis of the issue. Here is our view on the issue. Reichert's motion was titled "Motion for Reconsideration of Order Denying Rule 60 Motion for Relief of Judgement [sic] or Decree." In it, Reichert argued that the circuit court failed to address two allegations in his Rule 60 motion and that the order of protection should be dismissed due to a flaw in Smith's petition for order of protection. In his July 28 notice of appeal, Reichert stated that he was appealing the June 2015 denial of his motion for reconsideration and "all of this Court's rulings and Orders that shaped the Order."

Rule 4 of the Arkansas Rules of Appellate Procedure–Civil provides in pertinent part as follows:

(a) Time for Filing Notice of Appeal. Except as otherwise provided in subdivision (b) and (c) of this rule, a notice of appeal shall be filed within (30) days from the entry of the judgment, decree or order appealed from.
. . . .
(b) Extension of Time for Filing Notice ...

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