This decision today from the Arkansas Court of Appeals (Virgil v. Morgan, 2013 Ark. App. 675)
purports to distinguish Muccio v. Hunt, 2012 Ark. 416, holding that a Rule 59 motion for new trial raised no valid Rule 59 grounds, and was really a motion to reconsider a prior grant of partial summary judgment. Therefore, the post-verdict motion did not extend the deadline to file a notice of appeal, the notice was untimely, the appellate court lacked jurisdiction, and the appeal was dismissed.
In Muccio, the appellees argued that a “motion for reconsideration” was not a valid motion to extend the notice of appeal time, and that there could be no motion for new trial from a grant of summary judgment (citing New Holland Credit Co., LLC v. Hill, 362 Ark. 329, 336, 208 S.W.3d 191, 196 (2005) (which was overruled by Muccio). In Muccio, the appellees also argued the “motion for reconsideration” did not raise any valid grounds for relief under Rule 59. The decision in Muccio:
Muccio and Virgil agree on one point – “Courts should not be guided blindly by titles but should look to the substance of motions to ascertain what they seek.” Muccio at 3, citing Cornett, 293 Ark. At 111, 737 S.W.2d at 160, Virgil at 6.(Contra Breeden v. Nebraska Methodist Hospital, 257 Neb. 371 (1999) holding a motion to reconsider grant of summary judgment was not a motion for new trial and did not extend notice of appeal, reasoning that mislabeling the pleading caused confusion and it is not the duty of the court to decipher from ambiguous pleadings the relief requested).
But other than the point of agreement about substance over form, the decisions in Muccio and Virgil are irreconcilable. In Muccio, the Arkansas Supreme Court refused to dismiss the appeal based on the timing of the notice of appeal extended by an improper post-trial motion. But in Virgil, the Arkansas Court of Appeals dismissed the appeal based on the same argument.
Based on these conflicting decisions, the safest course is to:
1) Avoid post-trial motions. They are rarely granted, and they will not preserve any issue that was not already preserved. (It is well settled that our appellate courts will not consider an argument made for the first time in a post-trial motion. Quattlebaum v. McCarver, et al., 2013 Ark. App. 376.)
2) If you must file a post-trial motion, make certain it specifically tracks the grounds for relief in Rule 59. And call it a Rule 59 (or Rule 60) motion — not a “motion for reconsideration.”
3) Consider filing a notice of appeal within 30 days of the judgment, even if you file a Rule 59 motion. Then when the Rule 59 motion is denied, or deemed denied, file a second notice of appeal. If your opponent contends the first notice of appeal denies the trial court jurisdiction to entertain the Rule 59 motion, remind them that jurisdiction does not transfer to the appellate court until the record is lodged. Vanderpool v. Fidelity & Cas. Ins. Co., 327 Ark. 407 (1997).
If you represent an appellee in a case where there are any post-trial motions and the notice of appeal is filed more than 30 days after the judgment, consider whether the post-trial motion in substance validly extends the notice of appeal time, and whether a motion to dismiss is proper.