GARY DYE AND LINDA DYE, INDIVIDUALLY AND ON BEHALF OF PERSONS SIMILARLY SITUATE DAPPELLANTS
DIAMANTE, A PRIVATE MEMBERSHIP GOLF CLUB, LLC APPELLEE
FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63CV-12-90]
HONORABLE GARY ARNOLD, JUDGE.
RECALLED IN CASE NO. CV-14-618; CLERK DIRECTED TO AMEND
MANDATE TO REFLECT THAT EACH PARTY IS TO BEAR ITS OWN COSTS;
CIRCUIT COURT'S ORDER OF APRIL 14, 2016, REVERSED AND
A. Armogida, for appellant.
Law Firm, a Professional Association, by: Richard T. Donovan
and Betsy Turner; and McMillan, McCorkle & Curry, LLP,
by: J. Philip McCorkle, for appellee.
F. WYNNE, Associate Justice.
an appeal from a posttrial order of the Saline County Circuit
Court granting a judgment in the amount of $5, 091.05 to
appellee Diamante, a Private Membership Golf Club, LLC, based
on a mandate from this court awarding appellate costs in an
interlocutory appeal. For the reasons set out below, we
recall the mandate in case CV-14-618 and direct our clerk to
amend the mandate to provide that each party is to bear its
own costs in that appeal. Furthermore, because we conclude
that the circuit court lacked jurisdiction under Arkansas
Rule of Civil Procedure 60 to enter the order from which the
Dyes appeal, we reverse and dismiss that order.
class action, subdivision property owners, through class
representatives Gary and Linda Dye, sought declaratory
judgment that certain "tie-in rights" (such as golf
club membership and monthly dues) were unenforceable. In May
2015, this court issued an opinion in an interlocutory appeal
by Diamante of the circuit court's denial of its motion
to compel arbitration with the unnamed class members.
Diamante, LLC v. Dye, 2015 Ark. 243, 464 S.W.3d 459.
In that opinion, this court reversed and remanded case number
CV-14-618 as follows:
In Bank of the Ozarks v. Walker, 2014 Ark. 223, 434
S.W.3d 357, we held that before we can consider whether a
circuit court's order concerning the grant or denial of a
motion to arbitrate on the basis of a contract defense [such
as waiver], the order must first expressly find that there
was a valid agreement to arbitrate. When no such findings are
made, we reverse and remand the case to the circuit court to
make those findings. Id.; see GGNSC Holdings,
LLC v. Chappel, 2014 Ark. 545, 453 S.W.3d 645. We
therefore reverse and remand this case to the circuit court
to rule on whether there was a valid agreement to arbitrate
between Diamante and the unnamed class members.
Diamante, LLC v. Dye, 2015 Ark. 243, at 8, 464
S.W.3d 459, 464. The mandate issued on June 16, 2015,
pursuant to that opinion stated, "It is also ordered
that the appellees [the Dyes] shall pay [Diamante] $5, 091.05
for costs in the appeal." This assessment of costs was
included by the clerk of this court as a routine matter
pursuant to Rule 6-7(b) of the Rules of the Supreme Court,
which provides that the appellant may recover costs upon
reversal. Following the issuance of the mandate, the Dyes
filed a motion regarding costs and a motion to recall and
amend the mandate, seeking to have this court reconsider the
assessment of costs against them; both motions were denied.
The present appeal provides an opportunity for us to
reconsider those motions.
remand, in an order entered on September 14, 2015, the
circuit court made the required findings and again denied
the motion to compel arbitration of unnamed class members. On
November 24, 2015, Diamante filed a motion for judgment for
costs based on this court's mandate ordering the Dyes to
pay Diamante $5, 091.05 for costs in the appeal. Attached as
exhibits were Diamante's demand letter to the Dyes'
counsel, a motion by the Dyes to this court to recall and
amend the mandate, and this court's order denying the
motion. The Dyes responded, pointing out that Diamante was
not the prevailing party on remand and arguing that it would
be inequitable to assess costs against the Dyes individually
when the interlocutory appeal did not relate to them
individually and they responded solely because of their role
as class representatives of the unnamed class members. On
December 22, 2015, the circuit court denied Diamante's
motion for costs. In January 2016, Diamante filed a motion
for reconsideration, arguing that the circuit court had no
authority to do anything but enforce an appellate court's
mandate. Linda Dye filed a response. On March 21, 2016, the
Saline County Circuit Clerk issued a writ of garnishment of
Linda Dye's funds to the Bank of the Ozarks as garnishee.
In an order entered on April 14, 2016, the circuit court
granted reconsideration and granted Diamante's motion for
judgment for costs of $5, 091.05. This appeal followed.
appeal, Dye argues the following points: (1 & 2) the
circuit court erred by failing to recognize that its December
2015 order denying Diamante's motion for judgment for
costs had become final under Rule 60 after ninety days and
that it lacked jurisdiction to enter the April 2016 order;
(3) even if the circuit court did have jurisdiction, it erred
by (i) ignoring its own threshold ruling that there was no
valid arbitration agreement and (ii) granting appellate costs
without applying its threshold ruling and the appellate rules
on taxation of costs; and (4) regardless of whether the April
14 order is reversed and vacated, the circuit court erred by
permitting writs of garnishment to be issued when there had
been no judgment entered.
appeal presents an unusual situation. While Rule 6-7 of the
Rules of the Arkansas Supreme Court does not speak in terms
of "prevailing party, " it is clear that its intent
is to having the prevailing party recover costs of the appeal
from the other side. When a case is reversed and remanded for
the threshold finding of whether there existed a valid
agreement to arbitrate, as happened in this case, the appeal
does not present a clear prevailing party; it is
distinguishable from a case in which an appellate court
determines that an appellant is entitled to a reversal. Dye
is correct that Diamante was not a prevailing party in the
2015 interlocutory appeal and should not have been awarded
appeal costs. On the other hand, the circuit court is without
authority to deviate from this court's mandate.
Dolphin v. Wilson, 335 Ark. 113, 983 S.W.2d 113
(1998). The mandate is the official notice of action of the
appellate court, directed to the court below, advising that
court of the action taken by the appellate court, and
directing the lower court to have the appellate court's
judgment duly recognized, obeyed, and executed. Ingle v.
Ark. Dep't of Human Servs., 2014 Ark. 471, at 5-6,
449 S.W.3d 283, 287. Under the mandate rule, "an
inferior court has no power or authority to deviate from the
mandate issued by an appellate court." Id.
the specific and unusual circumstances presented, we exercise
our discretion to reconsider the Dyes' motions to this
court regarding costs awarded in the appellate mandate. We
recall the mandate with directions to the clerk of this court
to amend it to provide that each party is to bear its own
costs in the appeal. Further, we must address the order from
which Dye appeals. We hold that the circuit court was without
jurisdiction to enter its April 2016 order granting
reconsideration and awarding judgment for costs. The trial
court loses jurisdiction to set aside or modify an order
under Rule 60 if it does not do so within ninety days of the
entry of the original order, even though petitioner's
motion may have been filed prior to expiration of that
period. Henson v. Wyatt, 373 Ark. 315, 317, 283
S.W.3d 593, 595 (2008). Here, the circuit court ruled outside
of the ninety-day limitation, and no clerical error or other
ground for setting aside a judgment was alleged. See
Ark. R. Civ. P. 60(b), (c). Accordingly, we reverse and
dismiss the circuit court's order of April 14, 2016. Our
recall and amendment of the mandate clarifies the
jurisdictional issues that the parties raise, and we decline
to address those arguments further.
recalled in case no. CV-14-618; clerk directed to amend
mandate to reflect that each party is to bear its own costs;
circuit court's ...