PATRICK R. BRINEY AND COLLEEN M. BRINEY APPELLANTS
MICHAEL BAUER APPELLEE
FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72CV-17-2682]
HONORABLE JOHN C. THREET, JUDGE.
Law Firm, by: David G. Nixon, Paige E. Young, and Paul E.
Gregory, for appellants.
Cox & Estes, PLLC, by: S. Lance Cox, for appellee.
PHILLIP T. WHITEAKER, Judge.
Patrick and Colleen Briney appeal the Washington County
Circuit Court's granting of a motion for default judgment
on the counterclaim of appellee Michael Bauer. Specifically,
the Brineys contend the court abused its discretion in
finding they inexcusably failed to file a timely answer to
the counterclaim, and in striking their answer to the
counterclaim. We affirm.
provide the following summary of the proceedings for purposes
of our analysis. The Brineys filed a complaint and a first
amended complaint against Bauer, alleging breach of contract,
fraud, and constructive fraud. Bauer filed a timely answer. He
also filed a counterclaim against the Brineys, alleging
breach of contract, conversion, and unjust enrichment, and
requesting injunctive relief. Both the answer and the
counterclaim were filed on January 2, 2018. The Brineys filed
their answer to the counterclaim on February 6, 2018, at
12:56 p.m., and at 3:38 p.m. that day, they filed a motion to
extend their time to file an answer to the counterclaim.
Bauer filed a motion for default judgment, and he filed a
motion to strike the Brineys' answer to his counterclaim
because it was untimely filed. After a hearing on the
motions, the circuit court entered an order on April 18,
2018. The court found that the Brineys' motion to extend
the time to file an answer to Bauer's counterclaim was
untimely and was therefore denied; the circuit court granted
Bauer's motions for default judgment and to strike the
Brineys' answer to his counterclaim. On May 2, 2018, the
Brineys filed a motion for relief from judgment and order,
requesting that under Rule 60(a) of the Arkansas Rules of
Civil Procedure the circuit court vacate the April 18 order
and allow their answer to be filed timely. The circuit court
did not rule on this motion. The Brineys filed their notice
of appeal on June 29, 2018.
first determine if we have jurisdiction to hear this appeal.
Bauer asserts the Brineys' notice of appeal was untimely
filed. We disagree. The court entered the order from which
this appeal ensues on April 18, 2018, a Wednesday. On May 2,
2018, the Brineys filed a motion for relief from judgment
pursuant to Rule 60(a) of the Arkansas Rules of Civil
Procedure, which was not ruled on by the circuit
court. Thus, the Brineys filed their Rule 60
motion fourteen days after the filing of the court's
order. The question is whether this filing was timely under
our rules. We conclude that it was.
reaching this conclusion, we consider both Rule 4(b)(1) of
the Arkansas Rules of Appellate Procedure-Civil and Rule 6(a)
of the Arkansas Rules of Civil Procedure. Rule 4(b)(1)
provides that if a party files a motion to vacate, alter, or
amend the judgment within ten days after entry of the
judgment, the time for filing a notice of appeal shall be
extended for all parties; if the motion is neither granted
nor denied within thirty days of its filing, the motion shall
be deemed denied by operation of law on the thirtieth day,
and the notice of appeal is to be filed within thirty days
from the date the motion was deemed denied. Rule 6(a)
provides that in computing the time period, the day the order
is entered is not counted, but the last day of the period is
counted, and when the period prescribed is less than fourteen
days, intermediate Saturdays, Sundays, and legal holidays
shall be excluded from the computation.
these rules to the procedural history presented, the Brineys
filed a timely appeal. The day the order in question was
entered, April 18, 2018, is not included in the calculation,
and two Saturdays and two Sundays are also excluded. The
motion was filed on May 2, the tenth day. Thirty days later,
on June 1, the motion was deemed denied. The Brineys filed
their notice of appeal on June 29, making it timely.
Standard of Review
standard of review for considering whether a motion for
enlargement of time should have been granted and whether a
default judgment was properly granted is whether the circuit
court abused its discretion. Layman v. Bone, 333
Ark. 121, 967 S.W.2d 561 (1998).
Brineys argue the circuit court abused its discretion because
it stated on the record that it did not have an option or
choice but to deny their motion for extension of time, as the
answer to the counterclaim was filed outside the allotted
time and because there was not a mistake, inadvertence,
surprise, excusable neglect, or other good cause to not file
for an extension within the timeframe. The Brineys contend
the court then compounded its error because the order states
only that their motion for extension of time was untimely and
failed to make a written ruling on whether there was a valid
reason for the late filing, such as mistake, inadvertence,
surprise, excusable neglect, or other good cause. Thus, the
Brineys argue that the circuit court misconstrued Arkansas
Rule of Civil Procedure 6(b)(2), which resulted in an abuse
of discretion in denying them a trial on the merits of
Bauer's counterclaim, and that ...