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, North Little Rock;
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., Little Rock, by: Kara
B. Mikles, for appellees.
OPINION
PER
CURIAM
Page 695
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 Districts 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 courts 8 November 2018 order that
dismissed the districts first amended complaint. Nor, say
the appellees, did the district timely appeal from either the
deemed denial of the districts first Rule 60(a) postjudgment
motion, or the circuit courts express denial (by written
order) of the districts amended Rule 60(a) motion.
On
November 15, seven days after the November 8 dismissal of the
districts 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 dismissals 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
districts 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 districts original postjudgment motion
was deemed denied, the notices were filed within thirty days
of the circuit courts express denial (by written order
entered February 4) of the districts amended Rule
60(a) motion. The amended motion was filed on 30 January
2019.[2] Like
Page 696
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 courts express denial, on February
4, of the districts 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 ...