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Brinkley School District v. Terminix International Company, L.P.

Court of Appeals of Arkansas

October 2, 2019

BRINKLEY SCHOOL DISTRICT APPELLANT
v.
TERMINIX INTERNATIONAL COMPANY, L.P.; TERMINIX INTERNATIONAL, INC.; SERVICEMASTER CONSUMER SERVICES LP; AND RODNEY GLENN LLOYD APPELLEES

         PRIMARY MOTION TO DISMISS; SECONDARY MOTION TO DISMISS; MOTION TO STAY BRIEFING SCHEDULE; MOTION FOR EXTENSION OF TIME TO FILE BRIEF FIRST MOTION TO DISMISS GRANTED; SECOND MOTION TO DISMISS GRANTED IN PART, MOOT IN PART; MOTION TO STAY BRIEFING SCHEDULE MOOT; MOTION FOR EXTENSION OF TIME TO FILE BRIEF MOOT

          Davidson & Associates, P.A., by: Bobby D. Davidson; and John W. Walker, P.A., by: Lawrence A. Walker, for appellant.

          Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks; and Munson, Rowlett, Moore & Boone, P.A., by: Kara B. Mikles, for appellees.

          PER CURIAM

         Four motions are before the court. This opinion decides them all. The first motion is a request by four appellees-Terminix International Company, L.P.; Terminix International, Inc.; ServiceMaster Consumer Services LP; and Rodney Glenn Lloyd-to dismiss Brinkley School District's appeal because the district did not file a timely notice of appeal from any order. We address it now.

         The appellees' motion to dismiss argues that the district did not timely appeal the circuit court's 8 November 2018 order that dismissed the district's first amended complaint. Nor, say the appellees, did the district timely appeal from either the deemed denial of the district's first Rule 60(a) postjudgment motion, or the circuit court's express denial (by written order) of the district's amended Rule 60(a) motion.

         On November 15, seven days after the November 8 dismissal of the district's first amended complaint, the district started the postjudgment-motion process by moving the circuit court to vacate the dismissal. The appellees argue that the district had to, but did not, file a notice of appeal within thirty days from either the November 8 dismissal, or within thirty days from the date that the November 15 postjudgment motion was deemed denied by operation of law. The November 15 motion was deemed denied because the district filed it within ten days of the order of dismissal's entry, and then the circuit court did not grant or deny the Rule 60(a) motion within thirty days of its filing. See Ark. R. App. P.-Civ. 4(b)(1) (2018).[1]

         Rather than filing a notice of appeal within thirty days after the November 15 postjudgment motion was deemed denied, the district's first notice came on 14 February 2019. February 14 was nearly two months after the deemed-denied date had passed on the November 15 motion. (A second notice of appeal was filed on February 20, but for our purposes today the difference between the two is immaterial.)

         Though the February 14 and 20 notices of appeal were filed more than thirty days after the district's original postjudgment motion was deemed denied, the notices were filed within thirty days of the circuit court's express denial (by written order entered February 4) of the district's amended Rule 60(a) motion. The amended motion was filed on 30 January 2019.[2] Like the original Rule 60(a) motion, the amendment sought to vacate the 8 November 2018 order of dismissal.

         The appellees contend that the February 14 and 20 notices were ineffective to appeal any order. The district disagrees. It argues that the February 14 and 20 notices were timely relative to the circuit court's express denial, on February 4, of the district's amended January 30 Rule 60(a) motion. The district relies on the premise that its amended Rule 60 motion may be considered and that it can save this appeal-although the original Rule 60(a) motion had been deemed denied for more than forty days before the amended motion was even filed, and no notice of appeal was filed within thirty days of the deemed-denied date.

         The district knows that its initial Rule 60(a) motion was deemed denied. It admitted as much in the amended Rule 60(a) motion, in which it informed the circuit court that it "failed to act [on the original motion] causing the motion to be deemed denied by operation of law[.]" Ex. 3 to Primary Mot. to Dismiss ¶¶ 5-6. In fact, as we just mentioned, when the district filed its amended Rule 60 motion on January 30, the original motion had been deemed denied for more than forty days.

         We agree that the district's November 15 postjudgment motion was deemed denied by operation of law. And because the district did not timely file a notice of appeal directly from the November 8 order of dismissal itself, as required by Ark. R. App. P.-Civ. 4(a), or within thirty days of the deemed denial of its first Rule 60(a) motion, as Ark. R. App. P.- Civ. 4(b) required, the district must rely on its amended Rule 60(a) motion. The district puts its emphasis on the amended motion because the circuit court expressly denied the amended motion on 4 February 2019, which was within ninety days of the November 8 order of dismissal, and the district's February 14 and 20 notices of appeal were filed within thirty days of the order that denied the amended Rule 60 motion.

         The tangled procedural question as we see it is this: does Ark. R. App. P.-Civ. 4(b)'s timing provisions supersede Ark. R. Civ. P. 60's ninety-day time period, when a party files a Rule 60 motion to alter, amend, or vacate a judgment within ten days of the judgment's entry (as calculated by Ark. R. Civ. P. 6)? In other words, if a notice of appeal is untimely under Rule 4(b) but timely under a Rule 60 analysis, should the appeal be dismissed? And there is a secondary question: what effect can an amended postjudgment Rule 60(a) motion have when its parent motion was deemed denied before the amended motion was even filed? For the reasons discussed below, we hold that Rule 4(b) governs over Rule 60- once Rule 4(b) has been invoked by the filing of a postjudgment motion within ten days of the challenged judgment's entry. And an amended postjudgment motion does not permit an appeal past the date that would otherwise be untimely under Rule 4(b)(1).

         The caselaw supports our decision. Consider Miller v. Moore, 2017 Ark.App. 619, 535 S.W.3d 651, in which this court addressed an appellate-jurisdiction challenge involving a Rule 60 motion. We held that jurisdiction was lacking because a notice of appeal was not filed within thirty days after the Rule 60(a) motion had been deemed denied pursuant to Rule 4(b) of ...


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