Patrick R. BRINEY and Colleen M. Briney, Appellants
Michael BAUER, Appellee
FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72CV-17-2682],
HONORABLE JOHN C. THREET, JUDGE
Law Firm, by: David G. Nixon, Fayetteville, Paige E. Young,
and Paul E. Gregory, for appellants.
Cox & Estes, PLLC, by: S. Lance Cox, for appellee.
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.
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. 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.
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. 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.
reaching this conclusion, we consider both
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