Gooden v. State, 329 Ark. 485, 950 S.W.2d 461 (1997)

Sept. 11, 1997 · Arkansas Supreme Court · CR 97-123

329 Ark. 485, 950 S.W.2d 461

Richard O. GOODEN, Jr. v. STATE of Arkansas

CR 97-123

950 S.W.2d 461

Supreme Court of Arkansas

Opinion delivered September 11, 1997

[Petition for rehearing denied October 16, 1997.]

Kenneth G. Fuchs, for appellant.

Marcus Vaden, Deputy Prosecuting Att’y, for appellee.

Ray Thornton, Justice.

This case arises from an order of contempt out of Faulkner County. The Faulkner County Circuit Court denied appellant’s motion to recall and vacate an order that set aside a previously issued order holding Faulkner County in contempt of court. It is from that denial that appellant brings this appeal.

Appellant, Richard Gooden, seeks a review of the February 27, 1996, action of the Faulkner County circuit court in setting aside its order of February 26, 1996, which had imposed a penalty of $200.00 per day on Faulkner County to run from February 23, 1996, until such time as Faulkner County paid appellant the sum of $22, 309.35. The court had previously ordered that sum to be paid on or before February 23, 1996.¹

On June 19, 1996, 112 days later, appellant filed his motion to set aside the February 27 order. We have determined that the challenge to the February 27 order was not filed within the ninety-day limitation period of Ark. R. Civ. P. 60, and therefore was not timely.

Appellant alleges that Faulkner County perpetrated fraud on the court by representing itself as the State in several filed documents. It appears that the authority of the prosecuting attorney of Faulkner County was addressed to the court as Faulkner County, which is a political subdivision of the State of Arkansas. Appellant does not argue that the limitations period was tolled by fraudulent concealment; furthermore, there are no allegations of factual circumstances that could be interpreted as fraud. See, Ark. R. Civ. P. 60(c)(4). Under our rules, the trial court did not err in declining to set aside the February 27 judgment.

Appeal dismissed.

1 While the earlier order is not before us for review, the record shows that the $22, 309.35 had not been paid on February 23, and that on that date a Faulkner County prosecuting attorney had filed a notice of appeal, and also requested a stay. These pleadings were brought to the attention of the trial court promptly after the entry of the February 26 order, and the trial court set aside the February 26 order on the next day, February 27. The record also indicates that the $22, 309.35 has been paid.