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Briney v. Bauer

Court of Appeals of Arkansas, Division II

April 17, 2019

Patrick R. BRINEY and Colleen M. Briney, Appellants
v.
Michael BAUER, Appellee

Page 632

          APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72CV-17-2682], HONORABLE JOHN C. THREET, JUDGE

         Nixon Law Firm, by: David G. Nixon, Fayetteville, Paige E. Young, and Paul E. Gregory, for appellants.

          Cox, Cox & Estes, PLLC, by: S. Lance Cox, for appellee.

         OPINION

         PHILLIP T. WHITEAKER, Judge

          Appellants 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.

         We 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.[1] 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.[2]

          I. Jurisdictional Question

         We must 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.[3] 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.

         In reaching this conclusion, we consider both

Page 633

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.

          Applying 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.

          II. Stan ...


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