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                 SUPREME COURT OF ARKANSAS
                                      No.   CV-16-455

                                 Opinion Delivered: February 16, 2017
GARY DYE AND LINDA DYE,
INDIVIDUALLY AND ON BEHALF OF
PERSONS SIMILARLY SITUATED
                      APPELLANTS APPEAL FROM THE SALINE
                                 COUNTY CIRCUIT COURT
V.                               [NO. 63CV-12-90]

DIAMANTE, A PRIVATE MEMBERSHIP HONORABLE GARY ARNOLD,
GOLF CLUB, LLC                  JUDGE
                       APPELLEE
                                MANDATE RECALLED IN CASE
                                NO. CV-14-618; CLERK DIRECTED
                                TO AMEND MANDATE TO
                                REFLECT THAT EACH PARTY IS
                                TO BEAR ITS OWN COSTS;
                                CIRCUIT COURT’S ORDER OF
                                APRIL 14, 2016, REVERSED AND
                                DISMISSED.


                             ROBIN F. WYNNE, Associate Justice


        This is an appeal from a posttrial order of the Saline County Circuit Court granting

 a judgment in the amount of $5,091.05 to appellee Diamante, a Private Membership Golf

 Club, LLC, based on a mandate from this court awarding appellate costs in an interlocutory

 appeal. For the reasons set out below, we recall the mandate in case CV-14-618 and direct

 our clerk to amend the mandate to provide that each party is to bear its own costs in that

 appeal. Furthermore, because we conclude that the circuit court lacked jurisdiction under

 Arkansas Rule of Civil Procedure 60 to enter the order from which the Dyes appeal, we

 reverse and dismiss that order.
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       In this class action, subdivision property owners, through class representatives Gary

and Linda Dye, sought declaratory judgment that certain “tie-in rights” (such as golf club

membership and monthly dues) were unenforceable. In May 2015, this court issued an

opinion in an interlocutory appeal by Diamante of the circuit court’s denial of its motion to

compel arbitration with the unnamed class members. Diamante, LLC v. Dye, 2015 Ark.

243, 464 S.W.3d 459. In that opinion, this court reversed and remanded case number CV-

14-618 as follows:

              In Bank of the Ozarks v. Walker, 2014 Ark. 223, 434 S.W.3d 357, we held that
       before we can consider whether a circuit court’s order concerning the grant or denial
       of a motion to arbitrate on the basis of a contract defense [such as waiver], the order
       must first expressly find that there was a valid agreement to arbitrate. When no such
       findings are made, we reverse and remand the case to the circuit court to make those
       findings. Id.; see GGNSC Holdings, LLC v. Chappel, 2014 Ark. 545, 453 S.W.3d 645.
       We therefore reverse and remand this case to the circuit court to rule on whether
       there was a valid agreement to arbitrate between Diamante and the unnamed class
       members.

Diamante, LLC v. Dye, 2015 Ark. 243, at 8, 464 S.W.3d 459, 464. The mandate issued on

June 16, 2015, pursuant to that opinion stated, “It is also ordered that the appellees [the

Dyes] shall pay [Diamante] $5,091.05 for costs in the appeal.” This assessment of costs was

included by the clerk of this court as a routine matter pursuant to Rule 6-7(b) of the Rules

of the Supreme Court, which provides that the appellant may recover costs upon reversal.

Following the issuance of the mandate, the Dyes filed a motion regarding costs and a motion

to recall and amend the mandate, seeking to have this court reconsider the assessment of

costs against them; both motions were denied. The present appeal provides an opportunity

for us to reconsider those motions.




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       On remand, in an order entered on September 14, 2015, the circuit court made the

required findings1 and again denied the motion to compel arbitration of unnamed class

members. On November 24, 2015, Diamante filed a motion for judgment for costs based

on this court’s mandate ordering the Dyes to pay Diamante $5,091.05 for costs in the appeal.

Attached as exhibits were Diamante’s demand letter to the Dyes’ counsel, a motion by the

Dyes to this court to recall and amend the mandate, and this court’s order denying the

motion. The Dyes responded, pointing out that Diamante was not the prevailing party on

remand and arguing that it would be inequitable to assess costs against the Dyes individually

when the interlocutory appeal did not relate to them individually and they responded solely

because of their role as class representatives of the unnamed class members. On December

22, 2015, the circuit court denied Diamante’s motion for costs. In January 2016, Diamante

filed a motion for reconsideration, arguing that the circuit court had no authority to do

anything but enforce an appellate court’s mandate. Linda Dye2 filed a response. On March

21, 2016, the Saline County Circuit Clerk issued a writ of garnishment of Linda Dye’s funds

to the Bank of the Ozarks as garnishee. In an order entered on April 14, 2016, the circuit

court granted reconsideration and granted Diamante’s motion for judgment for costs of

$5,091.05. This appeal followed.

       On appeal, Dye argues the following points: (1 & 2) the circuit court erred by failing

to recognize that its December 2015 order denying Diamante’s motion for judgment for

costs had become final under Rule 60 after ninety days and that it lacked jurisdiction to



       1
           Specifically, the circuit court found that there was no valid arbitration agreement.
       2
           Mr. Dye has passed away.

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enter the April 2016 order; (3) even if the circuit court did have jurisdiction, it erred by (i)

ignoring its own threshold ruling that there was no valid arbitration agreement and (ii)

granting appellate costs without applying its threshold ruling and the appellate rules on

taxation of costs; and (4) regardless of whether the April 14 order is reversed and vacated,

the circuit court erred by permitting writs of garnishment to be issued when there had been

no judgment entered.

       This appeal presents an unusual situation. While Rule 6-7 of the Rules of the

Arkansas Supreme Court does not speak in terms of “prevailing party,” it is clear that its

intent is to having the prevailing party recover costs of the appeal from the other side. When

a case is reversed and remanded for the threshold finding of whether there existed a valid

agreement to arbitrate, as happened in this case, the appeal does not present a clear prevailing

party; it is distinguishable from a case in which an appellate court determines that an

appellant is entitled to a reversal. Dye is correct that Diamante was not a prevailing party

in the 2015 interlocutory appeal and should not have been awarded appeal costs. On the

other hand, the circuit court is without authority to deviate from this court’s mandate.

Dolphin v. Wilson, 335 Ark. 113, 983 S.W.2d 113 (1998). The mandate is the official notice

of action of the appellate court, directed to the court below, advising that court of the action

taken by the appellate court, and directing the lower court to have the appellate court’s

judgment duly recognized, obeyed, and executed. Ingle v. Ark. Dep’t of Human Servs., 2014

Ark. 471, at 5–6, 449 S.W.3d 283, 287. Under the mandate rule, “an inferior court has no

power or authority to deviate from the mandate issued by an appellate court.” Id.




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       Under the specific and unusual circumstances presented, we exercise our discretion

to reconsider the Dyes’ motions to this court regarding costs awarded in the appellate

mandate. We recall the mandate with directions to the clerk of this court to amend it to

provide that each party is to bear its own costs in the appeal. Further, we must address the

order from which Dye appeals. We hold that the circuit court was without jurisdiction to

enter its April 2016 order granting reconsideration and awarding judgment for costs. The

trial court loses jurisdiction to set aside or modify an order under Rule 60 if it does not do

so within ninety days of the entry of the original order, even though petitioner’s motion

may have been filed prior to expiration of that period. Henson v. Wyatt, 373 Ark. 315, 317,

283 S.W.3d 593, 595 (2008). Here, the circuit court ruled outside of the ninety-day

limitation, and no clerical error or other ground for setting aside a judgment was alleged.

See Ark. R. Civ. P. 60(b), (c). Accordingly, we reverse and dismiss the circuit court’s order

of April 14, 2016. Our recall and amendment of the mandate clarifies the jurisdictional

issues that the parties raise, and we decline to address those arguments further.

       Mandate recalled in case no. CV-14-618; clerk directed to amend mandate to reflect

that each party is to bear its own costs; circuit court’s order of April 14, 2016, reversed and

dismissed.

       Special Justice DAVID STERLING joins.

       GOODSON, J., concurs in part and dissents in part.

       WOOD, J., not participating.

       COURTNEY HUDSON GOODSON, Justice, concurring in part and dissenting

in part. I agree with the majority’s decision to reverse and dismiss the circuit court’s April


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14, 2016 order based on a lack of jurisdiction, and I therefore concur with that portion of

the opinion. However, I must respectfully dissent from the decision to recall our mandate

awarding appellate costs to appellee.

        This appeal stems from this court’s opinion in case number CV-14-618 reversing

and remanding the circuit court’s order denying appellee’s motion to compel arbitration

against unnamed class members. Diamante, LLC v. Dye, 2015 Ark. 243, 464 S.W.3d 459.

In that opinion, we instructed the circuit court to resolve the threshold issue of whether

there was a valid agreement to arbitrate. Our mandate, which was issued on June 16, 2015,

awarded $5,091.05 in costs to appellee. Appellants then filed a motion regarding costs,

asking this court to reconsider the award, which we denied on July 23, 2015. Appellants

also filed a motion to recall and amend the mandate, which we denied on November 5,

2015.

        On remand, the circuit court determined that there was no valid agreement to

arbitrate and again denied appellee’s motion to compel arbitration. Appellee did not appeal

that ruling and subsequently attempted to obtain a judgment from the circuit court for the

$5,091.05 in appellate costs. Appellee was ultimately successful in obtaining a judgment for

the costs over appellants’ objection, which led to the present appeal.

        As the majority notes, the appellate costs were assessed as a routine matter pursuant

to Arkansas Supreme Court Rule 6-7(b), which states that the appellant may recover a set

amount of briefing costs and other costs associated with preparing the record and filing the

appeal. I agree that appellants should not have been awarded appeal costs under the

circumstances in this case, where we reversed and remanded for the circuit court to make a


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threshold finding. However, we previously rejected two separate requests by appellants to

reconsider our award of costs, including a motion by appellants to recall the mandate. Now,

more than one year later, the majority has decided to issue an unsolicited recall of the

mandate for costs.

       We have repeatedly held that this court will recall a mandate only in extraordinary

circumstances. See, e.g., Wertz v. State, 2016 Ark. 249, 493 S.W.3d 772; Ward v. State, 2015

Ark. 62, 455 S.W.3d 830; Nooner v. State, 2014 Ark. 296, 438 S.W.3d 233. Extraordinary

circumstances are typically found only in criminal cases, such as those involving the death

penalty or a defect in the appellate process, Wertz, supra, or in cases where a party wishes to

file a petition for a writ of certiorari with the United States Supreme Court pursuant to

Arkansas Supreme Court Rule 5-3. I submit that this case does not present extraordinary

circumstances that justify recalling the mandate, and I am concerned about the dangerous

precedent that is being set by the majority. I therefore dissent from that part of the opinion

that recalls the mandate.

       I further note that, while the majority’s decision did not address appellants’ argument

regarding the writ of garnishment filed on March 21, 2016, any alleged error with respect

to that order is not properly before us in this appeal. Appellants’ notice of appeal was not

timely filed with respect to the writ of garnishment, nor did the notice of appeal designate

the writ as an order being appealed. Accordingly, we have no jurisdiction to address

appellants’ arguments regarding this issue. Ark. R. App. P.–Civ. 4(a).

       James A. Armogida, for appellant.

      Rose Law Firm, a Professional Association, by: Richard T. Donovan and Betsy Turner;
and McMillan, McCorkle & Curry, LLP, by: J. Philip McCorkle, for appellee.

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