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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, 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 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

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 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 ...


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