                                 Cite as 2014 Ark. App. 89


                ARKANSAS COURT OF APPEALS
                                      DIVISION IV
                                      No. CV-13-574



                                                 Opinion Delivered   February 12, 2014

 PETROHAWK ENERGY          APPEAL FROM THE VAN BUREN
 CORPORATION               COUNTY CIRCUIT COURT
                 APPELLANT [NO. CV-09-108]

 V.                                              HONORABLE MICHAEL A.
                                                 MAGGIO, JUDGE
 BRONSON BUTLER and HAMIL
 WELL SERVICE, LLC            REVERSED AND DISMISSED
                    APPELLEES

                          BRANDON J. HARRISON, Judge

       Clinton Walker was hurt while working on a gas well. He sued Bronson Butler,

Hamil Well Service, LLC, and Petrohawk Energy Corporation for damages. Walker

eventually settled his claims against Butler and Hamil, and the circuit court dismissed those

claims with prejudice in 2011. Later, on Petrohawk’s motion, the court entered summary

judgment against Walker and dismissed his claims against Petrohawk with prejudice.

       After Walker sued, but before he settled his claims against Butler and Hamil, Butler

and Hamil cross-claimed against Petrohawk for breach of contract. They alleged that

Petrohawk should have assumed the defense of Walker’s personal-injury action because a

contract called the “Master Service Contract” required Petrohawk to indemnify Butler

and Hamil. Petrohawk then cross-claimed against Butler and Hamil for indemnity under

the same contract. Butler and Hamil moved for summary judgment on their cross-claim.


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The circuit court held a hearing on the motion, but instead of ruling on the motion’s

merits, the court dismissed the entire case without prejudice in May 2012.

       Petrohawk, Butler, and Hamil agree that they did not know that a dismissal was

imminent because they did not receive a March 2012 email—a communication that the

court’s assistant sent only to Walker’s lawyer and which heralded the dismissal for lack of

prosecution.    An order of dismissal was entered two months after the email.             No

defendant refiled any cross-claim.      Instead, almost eight months after the May 2012

dismissal, the circuit court set the dismissal order aside and reinstated Butler’s and Hamil’s

cross-claim against Petrohawk. It did so at Butler and Hamil’s express request. Here is the

whole of the court’s order that reinstated part of the case after the dismissal:

              The Court finds that its Order of Dismissal entered May 3, 2012, was
       entered in error. Said Order is hereby recalled and the case remains open
       pending resolution of the claims by Defendants/Cross-Claimants Butler and
       Hamil against Cross-Defendant Petrohawk Energy Corporation.

The court explained this decision in a separate order that denied Petrohawk’s motion to

modify or vacate the judgment: “the parties both agreed that the case should be reopened

to dispose of the motion for summary judgment on the cross-claim.”

       With the case partially reinstated, the circuit court entered summary judgment for

Butler and Hamil on their cross-claim against Petrohawk. Petrohawk has appealed that

summary-judgment order and the court’s denial of its motion to alter or vacate the

judgment.

       This history brings us to the points at issue in this appeal. Petrohawk, relying on

Arkansas Rule of Civil Procedure 60(a), argues that the circuit court lacked the power to

enter judgment on Butler and Hamil’s cross-claim because, even if Petrohawk had agreed
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to reopen the case, “the agreement did not confer subject-matter jurisdiction on the

circuit court.” We don’t agree that subject-matter jurisdiction is technically at issue—a

point we’ll develop further below—but Petrohawk’s essential point is that the parties

cannot agree to neutralize Rule 60(a)’s ninety-day deadline. Petrohawk also argues that

the court erred in granting summary judgment because a genuine issue of material fact

exists on the sole proximate cause of Walker’s injuries and whether the settlement with

Walker occurred under compulsion. We will not address the merits of the summary-

judgment order because this case turns on the threshold question of whether the circuit

court could have, in light of Rule 60(a)’s time bar, reinstated the cross-claim and entered

judgment on it, whatever its substantive merit may be.

       Hamil argues that Petrohawk’s Rule-60 argument is tardy and should not be

considered on appeal. The tardiness strand is that Petrohawk did not argue Rule 60(a)’s

ninety-day deadline when the court reinstated the cross-claim against it after the

apparently mistaken dismissal of the entire case. Hamil is correct that Petrohawk did not

argue Rule 60’s time bar until the postjudgment phase of the case.          And as Hamil

correctly notes, the circuit court’s order reinstating the case was a final order that

Petrohawk has not appealed. See New Holland Credit Co. v. Hill, 362 Ark. 329, 331, 208

S.W.3d 191, 193 (2005) (“When an order setting aside a judgment is entered by a circuit

court more than ninety days after the judgment was originally filed, it is a final and

appealable order.”) (overruled on other grounds by Muccio v. Hunt, 2012 Ark. 416); see also

Wal-Mart Stores, Inc. v. Taylor, 346 Ark. 259, 57 S.W.3d 158 (2001) (allowing an appeal




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taken within thirty days of an order that vacated a court’s Rule 41(b) dismissal occurring

seventeen months prior in the case).

       Whether the circuit court had jurisdiction to enter a judgment on a claim that had

been dismissed, and then reinstated after Rule 60’s ninety-day deadline, is a question of

law that we review de novo. See Crews v. Deere & Co., 2013 Ark. 67. We do not reverse

any related findings of fact unless they are clearly erroneous. Id. Furthermore, under

Rule 60, there are some instances where the circuit court may modify or set aside its order

beyond the ninety-day period, but if none of these exceptions apply, the court cannot act

outside the time period and any attempt to do so is invalid. Global Econ. Res., Inc. v.

Swaminathan, 2011 Ark. App. 349, 389 S.W.3d 631 (citing Jordan v. Circuit Court of Lee

Cnty., 366 Ark. 326, 235 S.W.3d 487 (2006)). “[A] court that acts . . . in excess of its

jurisdiction produces a result that is void and cannot be enforced.” Jonesboro Healthcare

Ctr., LLC v. Eaton-Moery Envtl. Servs., Inc., 2011 Ark. 501, at 9, 385 S.W.3d 797, 802.

       Do the procedural facts in this case defeat the application of Rule 60(a)’s ninety-

day period? They do not. Though the rule has been applied using different terminology,

our supreme court has applied Rule 60’s ninety-day deadline as if the failure to follow it

was as detrimental to a case as a subject-matter jurisdiction defect. Ware v. Gardner, 309

Ark. 148, 827 S.W.2d 657 (1992). A circuit court’s inability to vacate an order after

ninety days has passed (absent an exception) is not a subject-matter jurisdiction issue.

Edwards v. Edwards, 2009 Ark. 580, 357 S.W.3d 445 (2009) (explaining what subject-

matter jurisdiction means). Rule 60(a)’s deadline is more properly a rule-imposed time

period in which a court must act. But like a true subject-matter defect, if a circuit court

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erroneously grants a motion after ninety days have passed, then it lacks the power to

proceed further and the court’s action past the deadline may be challenged for the first

time on appeal. Ware, 309 Ark. at 148, 827 S.W.2d at 657; Story v. Spencer, 41 Ark. App.

27, 847 S.W.2d 48 (1993).

        Hamil also argues that the circuit court could have reopened the case after ninety

days had passed because the dismissal order was a “clerical mistake” or “misprision of the

clerk”—and the parties agreed to reopen the case as to the cross-claim against Petrohawk.

        Rule 60(a)’s deadline was missed by many months. But Rule 60(b) permits a

circuit court to act outside the deadline if it acts to correct clerical mistakes arising from

oversight or omission. Ark. R. Civ. P. 60(b) (2013). Contrary to Hamil’s argument,

however, our supreme court has held that a Rule 41(b) dismissal is not a “clerical error”

under Rule 60(b). Crews v. Deere & Co., 2013 Ark. 67, at 4. This is true even when the

parties do not receive correct notice of the dismissal or even learn about its entry for years

after the fact. Watson v. Connors, 372 Ark. 56, 270 S.W.3d 826 (2008). On this record,

the circuit court had no authority under Rule 60(b) to reopen the case and reinstate the

cross-claim.

        We move to subsection (c) of the rule. Rule 60(c)(3) allows a circuit court to

vacate an order after ninety days for misprisions of the clerk. A clerical misprision occurs

when a court clerk’s mistake or fraud is apparent from the record. Hyden v. Cir. Ct. of

Pulaski Cnty., 371 Ark. 152, 264 S.W.3d 493 (2007). Hamil does not point us to any

such mistake by the court clerk. Nor do we see a reason to apply Rule 60(c)(3) in this

case.

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       The circuit court simply lost the power to vacate its order that dismissed the entire

case because the reinstatement order was entered more than ninety days after the Rule 41

dismissal had occurred—and no Rule 60(b) or (c) exceptions apply. Because the May

2012 order reinstating the case was infected from its inception, the subsequent summary

judgment against Petrohawk must also be vacated as a matter of law and the reinstated case

dismissed.

       Reversed and dismissed.

       GLOVER and WYNNE, JJ., agree.

       Friday, Eldredge & Clark, LLP, by: James M. Simpson and Tory H. Lewis, for

appellant.

       Daily & Woods, P.L.L.C., by: Douglas M. Carson, for appellees.




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