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Helena Regional Medical Center v. Wilson4/28/2005
n thirty (30) days of its filing, the motion shall be deemed denied by operation of law as of the thirtieth day, and the notice of appeal shall be filed within thirty (30) days from that date.
Therefore, under Rule 4(b)(1), Appellants were required to file their notice of appeal by October 22, 2003, thirty days after their motion was deemed denied. Because Appellants did not file their notice of appeal until December 11, 2003, their appeal was untimely. As this court has recognized, the timely filing of a notice of appeal is jurisdictional. U.S. Bank v. Milburn, 352 Ark. 144, 100 S.W.3d 674 (2003); Rossi v. Rossi, 319 Ark. 373, 892 S.W.2d 246 (1995). Appellants' failure to timely file a notice of appeal renders this court without jurisdiction to consider the merits of their appeal; yet, despite our lack of jurisdiction, the majority addresses the merits of Appellants' argument and remands this matter to the trial court. This is clearly in error.
Again, however, the majority avoids the procedural defect with the notice of appeal by asserting that Appellants' notice of appeal was timely filed under Ark. Code Ann. ยง 28-1-116 (1987). That section is inapplicable as we are dealing with matters of civil procedure. In any event, subsection (g) of section 28-1-116 establishes the applicability of general appellate rules. Simply because Appellants, who are defendants in a civil lawsuit filed on behalf of the estate, sought to intervene in the probate case does not mean that the rules of civil procedure should be ignored. As I previously pointed out, the purpose of the Probate Code, as recognized by this court on numerous occasions, is to allow probate judges greater flexibility in their orders regarding the administration of estates. This is so because of the unique nature of probate proceedings. There is simply nothing unique about a motion to intervene or a motion for reconsideration that would warrant the use of the more flexible standards of the Probate Code.
Based on the foregoing reasons, I must respectfully dissent.
Brown and Gunter, JJ., join.
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