ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION III

LUCRETIA WILLIAMS, JOHN

SORRENSON & WILLIAM B. BRADY

APPELLANTS

V.

BLISSARD MANAGEMENT &

REALTY, INC.

APPELLEE

CA 02-1339

September 3, 2003

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

SEVENTH DIVISION [CV02-399]

HONORABLE JOHN B.

PLEGGE, CIRCUIT JUDGE

AFFIRMED

John F. Stroud, Jr., Chief Judge

The underlying substantive issues of this case, which are not germane to the issues before this court on appeal, concern the propriety of the election of the 2002 Board of Administration of the Timberidge Horizontal Property Regime, a condominium. Appellee was a party to the lawsuit only because it served as the off-site property manager for Timberidge.

A hearing was held on the underlying substantive issues on May 24, 2002. On June 4, 2002, the trial judge signed an order prepared as a result of the May 24 hearing. This order, which was not filed of record until June 17, found in favor of appellants, holding that the 2002 Board of Administration was properly elected, ordering appellee to remain as the property manager until June 1, 2002, at which time appellee was to relinquish all records, money and other items to appellant Lucretia Williams, and directing both sides to file motions for attorney's fees within twenty days of the entry of the order. It is apparent from a letter dated July 24, 2002, from appellants' previous counsel to appellant William Brady, who is now acting as counsel for appellants, that appellants' previous counsel had drafted the order from the May 24 hearing that was signed by the trial judge and filed of record on June 17. This is corroborated by a letter from appellee's counsel dated June 14, 2002, to the trial judge, noting that appellants' counsel had prepared a precedent for an order from the May 24 hearing that he had approved and had previously mailed to the trial judge.

No notice of appeal from the order entered on June 17 was filed by July 17, 2002, as required by Rule 4(a) of the Rules of Appellate Procedure - Civil. On July 22, 2002, appellants filed a motion entitled "Motion for Extension of Time for Filing Notice of Appeal and Motion to Correct Judgment and Order." In this motion, appellants assert that they did not receive notice of entry of the judgment and order and that all issues, particularly the counterclaim, cross-complaint, and third-party issues were not resolved; therefore the judgment was not final. A hearing on this motion was held on August 14, 2002; appellants' motion was denied in an order signed on August 28, 2002, and filed of record on August 29, 2002. Appellants filed a notice of appeal from the denial of their motion on September 13, 2002.

Appellants advance four arguments on appeal: (1) the trial court did not properly apply Rule 4(b)(3) of the Rules of Appellate Procedure to the facts of their case; (2) the trial court did not properly apply Rule 60(a) of the Arkansas Rules of Civil Procedure to the facts of their case; (3) the trial court "conditioned" appellants' right of appeal in a manner contrary to the appellate rules; (4) the trial court erred in awarding attorney's fees to appellee under the facts of this case. We affirm.

Appellants first contend that the trial court did not properly apply Rule 4(b)(3) of the Rules of Appellate Procedure - Civil to the facts of their case. The standard of review of the denial of a motion to extend the time to file a notice of appeal is abuse of discretion. Arnold v. Camden News Publishing Co., ___ Ark. ___, ___ S.W.3d ___ (June 12, 2003). Subsection (a) of Rule 4 provides that "a notice of appeal shall be filed within thirty days of the entry of the judgment, decree, or order appealed from." Subsection (b)(3) of this rule provides one of the bases for extension of the thirty-day rule and states:

Our supreme court recently addressed the issue of denying a motion to extend the time to file a notice of appeal in Arnold v. Camden News, supra. In that case, counsel for appellees had prepared a precedent and mailed it to both the court and to appellant's

counsel; appellant's counsel informed the trial court that he had no comments on the precedent. The decree was signed by the judge and filed of record on November 27, 2000. Appellant's counsel contends that he did not learn of the entry of the order until January 26, 2001; appellant did not move to extend the time to file her notice of appeal pursuant to Rule 4(b)(3) of the Arkansas Rules of Appellate Procedure - Civil until February 8, 2001. The motion was denied by the trial court on the basis that the integrity of the thirty-day rule must be protected and that "the burden of diligence is on all parties to stay informed about the status of a case as a matter of Arkansas case law." ___ Ark. at ___, ___ S.W.3d at ___. Our supreme court affirmed the denial of the motion to file a belated notice of appeal, holding that appellant should have been aware that the order could have been entered at any time after appellant's counsel had informed the trial court that there were no comments on the precedent submitted by appellees. Although acknowledging that Rule 4 does not speak of a party's obligation to use diligence, the supreme court held that it was "only logical and reasonable that parties assume some modicum of obligation to exercise diligence in keeping up with the status of their case, particularly when they know that a precedent had been submitted and approved by both sets of counsel and is simply waiting approval by the court." ___ Ark. at ___, ___ S.W.3d ___ (emphasis in original).

In the present case, the order that was entered was drafted by appellants' counsel and approved by appellee's counsel. However, the same line of reasoning applied by the supreme court in Arnold v. Camden News, supra, must be employed in this case. Appellants, or at least counsel for appellants, were aware that a precedent had been submitted, and, in accordance with Arnold, were obligated to exercise some modicum of diligence in determining the ongoing status of the case. We cannot say that the trial judge abused his discretion in denying appellants' motion to file a belated notice of appeal.

We also must discuss an order that purportedly awarded additional attorney's fees to appellee after the order from the May 24 hearing was filed of record on June 17. Though not found in the record because appellants did not designate it for inclusion, appellants' September 13, 2002 notice of appeal asserts that this order awarding additional attorney's fees was filed on June 28, 2002. A letter in the record dated July 1, 2002, from appellee's counsel, enclosing copies of the order awarding attorney's fees and costs, supports this assertion, although the enclosures themselves were also not made part of the record.

Throughout the litigation, appellee had requested and received attorney's fees. In an order filed of record on March 8, 2002, regarding a hearing that had been held on February 12, the trial court awarded appellee attorney's fees in the amount of $2625.00 and took a request for $500.25 in further compensation under advisement. After the hearing on May 24, appellee filed a motion for additional attorney's fees on May 31, 2002, stating that it was willing to waive its previous request for further compensation, which the trial court had taken under advisement, in return for being awarded the balance of attorney's fees it had incurred since the February 12 hearing. Appellants did not respond to this motion. In a June 14, 2002 letter to the trial judge, appellee's counsel provided a proposed order for the trial judge's review in response to appellee's May 31 motion for additional attorney's fees. This letter was copied to appellant Brady and appellants' former counsel. The order granting an award of additional attorney's fees was purportedly signed on June 28.

This order awarding additional attorney's fees did not extend appellants' time for filing a notice of appeal from the order filed of record on June 17. The award of attorney's fees is a collateral matter, and collateral matters are left within the trial court's jurisdiction even though an appeal has been docketed. See Ives Trucking Co. v. Pro Transp., 341 Ark. 735, 19 S.W.3d 600 (2000). All of the substantive issues had been resolved in favor of appellants at the May 24 hearing; therefore, the order entered on June 17 was a final and appealable order. When the order granting additional attorney's fees to appellee was entered on June 28, appellants would have had thirty days from the entry of that order to appeal that award. However, there is no indication that appellants filed a notice of appeal from that order, although the thirty days still had not run for that order on July 22 when they filed a motion to file a belated notice of appeal with regard to the June 17 order. Because a notice of appeal was not filed for the June 28 order addressing the collateral issue of attorney's fees, we have no jurisdiction to hear an appeal concerning the additional award of attorney's fees in the June 28 order.

Appellants next argue that the trial court did not properly apply Rule 60(a) of the Arkansas Rules of Civil Procedure to the facts of their case. This rule provides: "To correct errors or mistakes or to prevent the miscarriage of justice, the court may modify or vacate a judgment, order or decree on motion of the court or any party, with prior notice to all parties, within ninety days of its having been filed with the clerk." We hold that Rule 60(a) is inapplicable to the facts of this case. There was no error or mistake; therefore, there was no need to modify or vacate the judgment.

Appellants also argue that the trial court conditioned their right of appeal in a manner contrary to the appellate rules of this court. After denying appellants' motion for extension of time to file a notice of appeal and motion to correct judgment and order, the trial judge attempted to ascertain what issues appellants desired to appeal. Appellants' counsel stated that if they wanted to "waste [their] money appealing [they] ought to be allowed to," to which the trial judge answered that if they wanted to waste their money, he would allow appellants to appeal the order refusing to extend the time for filing the original notice of appeal, with the understanding that if appellants lost the appeal, they would be responsible for all of the costs and attorney's fees for the defendants. Appellants contend that this statement "conditioned" their right to appeal; we disagree. The remarks, although somewhat imprudent, did not limit appellants' right to appeal. The appeal was pursued and has now been fully adjudicated by this court; therefore, this argument cannot provide a basis for reversal.

In appellants' last point on appeal, they argue that the trial court erred in awarding attorney's fees to appellee under the facts of this case. Because we affirm the trial court's denial of appellants' motion for extension of time to file a notice of appeal for the reasons set forth above, we need not address this issue. Nevertheless, even if we had considered appellants' last point of appeal, we would still be unable to reach the merits of this argument because the abstract does not indicate that the arguments now made by appellants were ever made to the trial court. Arguments that were not raised below will not be considered for the first time on appeal. Arkansas Blue Cross & Blue Shield v. Hicks, 349 Ark. 269, 78 S.W.3d 58 (2002).

Affirmed.

Neal and Crabtree, JJ., agree.