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 ...