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Whitey's Truck Center, Inc. v. Robinson

Court of Appeals of Arkansas, Division I

March 4, 2015

WHITEY'S TRUCK CENTER, INC. APPELLANT
v.
TODD ROBINSON APPELLEE

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, THIRD DIVISION [NO. 60CV-13-1342] HONORABLE JAY MOODY, JUDGE

Ed Daniel, IV, P.A., by: Ed Daniel IV, for appellant.

Jeff Rosenzweig, for appellee.

DAVID M. GLOVER, JUDGE

Todd Robinson sued Whitey's Truck Center, alleging that Whitey's failed to properly repair his diesel truck and damaged the truck in attempting to repair it, keeping the truck over a two-year period. Whitey's denied that it had damaged the truck and counterclaimed, seeking payment for the truck repair and storage fees, alleging the fees were precipitated by an insufficient check issued by Robinson. The case was tried to a jury. Following Robinson's case in chief and at the conclusion of the trial, Whitey's moved for a directed verdict on Robinson's claims based on deceptive trade practices, conversion, and breach of contract. The trial court denied the motion regarding breach of contract but granted it on the claims for deceptive trade practices and conversion. The jury found in favor of Robinson on his breach-of-contract claim and against Whitey's on its counterclaim. On December 4, 2013, Whitey's moved for JNOV or, alternatively, for a new trial. By judgment entered on January 6, 2014, Robinson was awarded $25, 000 in damages. On January 16, 2014, Whitey's filed its notice of appeal. On January 17, 2014, Robinson responded to Whitey's motion for JNOV/new trial.

Whitey's submitted a proposed order that would have the trial court grant the motion for new trial. Robinson raised objections to it. On February 11, 2014, which was undisputedly beyond the deemed-denied deadline for doing so, the trial court entered the order granting a new trial. Robinson then also filed a notice of appeal, lodged the record in this case, and submitted an opening brief that challenged the order granting a new trial by contending that it was not timely entered. Whitey's countered by asserting that a series of winter storms swept through Arkansas between February 4 and February 11, 2014.

Our court entered a per curiam order on September 17, 2014, granting Robinson's request to realign the parties to name Whitey's as appellant and Robinson as appellee. As appellant, Whitey's raises three points of appeal: 1) the jury erred in the amount of the recovery by improperly including consequential damages as part of the award and the verdict was clearly contrary to the preponderance of the evidence, requiring reversal and remand for a new trial; 2) if this case is reversed, the entire case should be reversed, not just the damage award; and 3) extenuating circumstances resulted in the circuit court not entering the order granting a new trial until after the expiration of the thirty-day deadline. We affirm the January 6, 2014 judgment.

Point I

For ease of discussion, we first address Whitey's third point, contending that the trial court's untimely February 11, 2014 order granting a new trial should be given effect because of extenuating bad-weather circumstances. We disagree.

Rule 59(b) of the Arkansas Rules of Civil Procedure provides:

(b) Time for Motion. A motion for a new trial shall be filed not later than 10 days after the entry of judgment. A motion made before entry of judgment shall become effective and be treated as filed on the day after the judgment is entered. If the court neither grants nor denies the motion within 30 days of the date on which it is filed or treated as filed, it shall be deemed denied as of the 30th day.

(Emphasis added.)

Rule 6 of the Arkansas Rules of Civil Procedure provides in pertinent part:
(a) Computation. In computing any period of time prescribed or allowed by these rules, by order of the Court or by any applicable statute, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday, legal holiday, or other day when the clerk's office is closed, in which event the period runs until the end of the next day that the clerk's office is open. When the period of time prescribed or allowed is less than fourteen (14) days, intermediate Saturdays, Sundays, or legal holidays shall be excluded in the computation. As used in ...

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