Brinkley School District v. Terminix International Company, L.P.; Terminix International, Inc.; Servicemaster Consumer Services, Lp; And Rodney Glenn Lloyd

2019 Ark. App. 445

• Court: Court of Appeals of Arkansas
• Decided: October 2, 2019
• Status: Published

Opinion

Cite as 2019 Ark. App. 445 Digitally signed by Elizabeth Perry ARKANSAS COURT OF APPEALS No. CV-19-469 Date: 2022.07.27 13:49:11 -05'00' Adobe Acrobat version: Opinion Delivered October 2, 2019 2022.001.20169

BRINKLEY SCHOOL DISTRICT PRIMARY MOTION TO DISMISS; APPELLANT SECONDARY MOTION TO DISMISS; MOTION TO STAY V. BRIEFING SCHEDULE; MOTION FOR EXTENSION OF TIME TO TERMINIX INTERNATIONAL FILE BRIEF COMPANY, L.P.; TERMINIX INTERNATIONAL, INC.; FIRST MOTION TO DISMISS SERVICEMASTER CONSUMER GRANTED; SECOND MOTION SERVICES LP; AND RODNEY TO DISMISS GRANTED IN PART, GLENN LLOYD MOOT IN PART; MOTION TO APPELLEES STAY BRIEFING SCHEDULE MOOT; MOTION FOR EXTENSION OF TIME TO FILE BRIEF MOOT

APPEAL DISMISSED WITH PREJUDICE

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

1 Rule 4(b)(1) provides:

Upon timely filing in the circuit court of a motion for judgment notwithstanding the verdict under Rule 50(b) of the Arkansas Rules of Civil Procedure, a motion to amend the court’s findings of fact or to make additional findings under Rule 52(b), a motion for a new trial under Rule 59(a), or any other motion to vacate, alter, or amend the judgment made no later than 10 days after entry of judgment, the time for filing a notice of appeal shall be extended for all parties. The notice of appeal shall be filed within thirty (30) days from entry of the order disposing of the last motion outstanding. However, if the circuit court neither grants nor denies the motion within thirty (30) days of its filing, the motion shall be deemed denied by operation of law as of the thirtieth day, and the notice of appeal shall be filed within thirty (30) days from that date.

Ark. R. App. P.–Civ. 4(b)(1) (2018).

2 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

2 The appellees’ motion to dismiss in this court states, “Admittedly, the motion [to dismiss] as written [in the circuit court] would leave some portions of the First Amended Complaint to be litigated.” Primary Mot. to Dismiss ¶ 2. In its response, the district also makes a passing reference to the 8 November 2018 order being “interlocutory.” Resp. to Primary Mot. to Dismiss ¶ 3. We of course take these statements to mean that there may be a final-order problem. Even if there was a finality question—despite the circuit court’s statement in the November 8 order “That Plaintiff’s First Amended Complaint is dismissed” (Ex.1 to Primary Mot. to Dismiss ¶ 4)—an untimely notice of appeal trumps a final-order problem. By this we mean that a final-order concern generally does not have priority over first deciding whether a timely notice of appeal has been filed. See Sloan v. Ark. Rural Med. Practice Loan & Scholarship Bd., 369 Ark. 442, 255 S.W.3d 834 (2007). That is why we have focused on whether the school district filed a timely notice of appeal.

3 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

4 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 the Arkansas Rules of Appellate Procedure–Civil. Here are some of the core

statements from the opinion.

All of the arguments Brooke makes to our court in her appeal were contained in her motion to vacate pursuant to Rule 60(a) of our rules of civil procedure, which she filed within ten days from the date of entry of the adoption decree.

....

The notice of appeal Brooke filed was from the decree itself, but that notice was not amended when her Rule 60(a) motion to vacate was deemed denied. Consequently, we are without appellate jurisdiction to consider the arguments she raised in her motion to vacate because the deemed denial of those issues was not appealed. See Worsham v. Day, 2017 Ark. 192, 519 S.W.3d 699. We therefore dismiss her appeal.

Miller, 2017 Ark. App. 619, at 3, 535 S.W.3d at 653 (relying on Ark. R. App. P.–Civ. 4(b)).

5 The important point from Miller is that the deemed-denied rule, and the

corresponding notice-of-appeal deadline under Rule 4(b), applied to a Rule 60(a) motion

that was filed within ten days of the order that the motion challenged (as was the case here).

Then came Dale v. White, 2018 Ark. App. 172, 545 S.W.3d 812, in which this court

held that Rule 4(b)’s deemed-denied rule did not apply because the Rule 60 motion was

filed more than ten days after the order being challenged was entered.

As to Dale’s first issue on appeal concerning prejudgment and postjudgment interest, we hold that Dale failed to obtain a ruling; thus, the issue is not preserved for our review. Dale raised the argument in his Rule 60 motion filed on June 16, 2017, but the circuit court never issued a ruling on the motion. The motion was not deemed denied by operation of law as it was filed more than ten days after entry of the April 27, 2017 judgment, and Rule 60 contains no deemed-denied provision. Accordingly, there is no ruling by the circuit court from which to appeal. It is well settled that a party’s failure to obtain a ruling is a procedural bar to this court’s consideration of the issue on appeal. Accordingly, we must affirm on this point.

Id. at 5, 545 S.W.3d at 816 (internal citations omitted).

This court applied the same principle as recently as this year. See Muhammad v. Burl,

2019 Ark. App. 52, at 7 n.1, 571 S.W.3d 39, 43 n.1 (relying on Dale v. White, supra, and

Ark. R. App. P.–Civ. 4(b)(1), and stating that “[t]he December 19 [Rule 60] motion was

not filed within ten days of the November 30 dismissal order; therefore, it was not deemed

denied by operation of law because Rule 60 contains no deemed-denied provision, and

Rule 4(b)(1) of the Arkansas Rules of Appellate Procedure–Civil would apply only if the

motion had been filed within ten days.”).

We acknowledge that the district was permitted to amend its initial Rule 60(a)

motion, but the amendment cannot operate to extend the deadlines set by Ark. R. App.

P.–Civ. 4(b)(1), once Rule 4(b) has been invoked (as it was here). See Williams v. Hudson,

6 320 Ark. 635, 637–38, 898 S.W.2d 465, 466–67 (1995). See also Centennial Bank v. Tribuilt

Constr. Grp., LLC, 2011 Ark. 245, at 6, 388 S.W.3d 897, 900 (citing Williams, supra, with

approval and stating, “Although a motion is not within the ambit of Rule 15, this court has

stated that a posttrial motion can be amended, and that such amendment relates back to the

original document filed.”).

Put another way, we are not persuaded that the district may rely on the amended Rule

60 postjudgment motion to argue that (1) it had ninety days from the November 8 dismissal

to get a court order either granting or denying the sought-after relief—which it received on

February 4—and (2) then had thirty additional days to appeal the February 4 postjudgment

order. First, it seems incompatible to hold that an amended postjudgment motion may

operate although the parent motion was deemed denied well before the amended motion

was filed. This is especially so given that an amended postjudgment motion “relates back”

to its parent. See Williams, supra; Centennial Bank, supra. Second, if Rule 60’s ninety-day

time period could somehow subvert Rule 4(b)(1)’s deemed-denied provision—and the

corresponding requirement that a notice of appeal must be filed within thirty days of the

deemed-denied date—then why include Rule 60 motions under Rule 4(b)’s ambit in the

first place? But Rule 60 motions have been within Rule 4(b)’s reach since 2001. See, e.g.,

Addition to Reporter’s Note, February Amendment 2001, Ark. R. App. P.–Civ. 4(b)(1)

(“Under the amended rule, timely motions under Rules 50(b), 52(b), and 59(a) extend the

time, as does ‘any other motion to vacate, alter, or amend the judgment made no later than

10 days after entry of judgment.’ For example, a motion to set aside the judgment pursuant

7 to Rule 60 extends the time for filing the notice of appeal, so long as it is made no later

than 10 days after the judgment is entered.”).

Despite all this, there is some tangential support for the district’s argument that it

should benefit from Rule 60’s ninety-day time period. In Murchison v. Safeco Insurance Co.,

367 Ark. 166, 238 S.W.3d 11 (2006), after holding that the appeal had to be dismissed on

the basis of the deemed-denial of a Rule 60(a) motion under Ark. R. App. P.–Civil 4 and

an untimely notice of appeal relative to the deemed-denied date, the supreme court analyzed

the jurisdictional issue in terms of Rule 60(a)’s ninety-day time period, though it did not

permit the appeal to continue. (Two justices would have stopped at the Rule 4 analysis.)

Two years later, the supreme court decided Henson v. Wyatt, 373 Ark. 315, 283

S.W.3d 593 (2008), which cited Murchison and again dismissed the appeal because of the

deemed-denied rule in Ark. R. App. P.–Civ. 4. As in Murchison, the supreme court in

Henson, after its Rule 4(b)(1) discussion, implied that Rule 60’s ninety-day time period

might rescue an otherwise untimely appeal. In another post-Murchison case, City of Centerton

v. City of Bentonville, 375 Ark. 8, 289 S.W.3d 53 (2008), the supreme court analyzed the

timeliness of an appeal involving a motion to amend the judgment based solely on Ark. R.

App. P.–Civ. 4(b). Rule 60’s ninety-day time period was not mentioned. There is no

indication in the opinion that either the parties or the court characterized the motion as

being one filed pursuant to Rule 60. All we know from the opinion is that “Centerton

filed a posttrial motion to amend the judgment on October 14, 2007,” and the appeal was

dismissed pursuant to Rule 4(b) and Murchison. Id. at 9, 289 S.W.3d at 54. But had the

8 supreme court chosen to apply Rule 60’s ninety-day time period, then the appeal would

have been timely based on the recited facts.

These decisions lend some support to the district’s point that we should allow this

appeal under Rule 60’s ninety-day time period because (1) the district filed an amended

Rule 60(a) motion before ninety days expired from the date that the November order of

dismissal was entered; (2) the February 4 order denying the amended motion was entered

within ninety days of the November 8 order; and (3) the district’s February 14 and 20

notices of appeal were filed within thirty days after the order denying the amended motion

was entered.

But the effect of an amended postjudgment motion after the original one had already

been deemed denied was not at the core of those cases. Moreover, the Rule 60 dicta in

Murchison and Henson has had little influence. Since those two cases were decided, many

cases have not analyzed the timeliness of a notice of appeal using Rule 60’s ninety-day time

period when the case also involved a Rule 60(a) motion that came within Rule 4(b)’s time

period. Instead, this court and our supreme court have rather steadfastly followed the rule

(either directly or by implication) that appeal deadlines associated with a

postorder/judgment motion that is filed within ten days of the order being challenged

proceeds in accordance with Ark. R. App. P.–Civ. 4(b), and not under Rule 60’s ninety-

day period.

In addition to the cases we have already mentioned, this court in Davis v. Arkansas

Blue Cross & Blue Shield, 2010 Ark. App. 348, at 5, dismissed an appeal for the following

reason: “Although appellant did not specify whether his motion to set aside was brought

9 under Rule 59 or Rule 60 of the Arkansas Rules of Civil Procedure, appellant’s motion was

one to vacate the trial court’s dismissal order, and it was filed within ten days after the entry

of judgment. Therefore, appellant’s motion falls within the deemed-denied provision of

Rule 4(b)(1).” In Davis, we cited Murchison’s Rule 4 holding as authority for the dismissal.

But Murchison’s and Henson’s statements regarding the potential applicability of Rule 60’s

ninety-day time period were not addressed. Another example like Davis appeared one year

later in Reimer v. Ragsdale, 2011 Ark. App. 81. There we held that the notice of appeal filed

from the denial of a Rule 60 motion came too late under Rule 4(b)(1). It is worth noting

that, as in Davis, this court in Reimer cited Murchison as authority for the dismissal but did

not address whether Rule 60’s ninety-day time period applied and, if so, whether it would

have made the untimely appeal a timely one. Indeed, this court has very recently decided

two cases where relief was sought under Rules 59 and Rule 60. Again we followed Rule

4(b)(1). Rule 60’s ninety-day period was not mentioned in either case. See, e.g., McCauley

v. Cornejo, 2019 Ark. App. 28; Harrelson v. King, 2018 Ark. App. 42, 538 S.W.3d 885

(applying Rule 4(b) and the deemed-denied rule to motions that sought relief under Rule

59 and Rule 60 of the Arkansas Rules of Civil Procedure).

Given the history of Rule 4(b) and the cases that have addressed it, we hold that

Rule 60 does not avoid or suspend Rule 4(b)’s provisions, once the latter rule has been

triggered by the filing of any motion to alter, amend, or vacate an order or judgment within

ten days of the order or judgment’s entry, as calculated by Ark. R. Civ. P. 6. Moreover,

amending a motion to alter, amend, or vacate an order or judgment already on file does not

avoid or suspend Rule 4(b)’s timing/deadline provisions. See Williams, 320 Ark. at 637–38,

10 898 S.W.2d at 466–67; Centennial Bank, 2011 Ark. 245, at 6, 388 S.W.3d at 900. This is

especially so when the filing of an amended postjudgment motion is an attempt to breathe

life into a parent motion that has already been deemed denied by operation of law.

The district did not file a notice of appeal within thirty days from the entry of the

November 8 order of dismissal itself. Ark. R. App. P.–Civ. 4(a). The district did not file a

notice of appeal within thirty days of the deemed-denied date of its November 15 Rule

60(a) motion. Ark. R. App. P.–Civ. 4(b). Regarding the amended Rule 60(a) motion that

was filed more than one month after the deemed denial of the parent motion, the district

did not “avoid” Rule 4(b)’s deadlines by filing it. Finally, even if the amended motion did

not relate back to its parent, Rule 60’s internal ninety-day time period does not govern over

Rule 4(b)’s provisions, once Rule 4 has been triggered. All this means that the district’s

February 14 and 20 notices of appeal were untimely and did not preserve any issue for

appeal.

Finally, because the time to file a notice of appeal from either the circuit court’s 8

November 2018 or 4 February 2019 orders has long since passed, the appeal is dismissed

with prejudice. See Seay v. C.A.R. Trans. Brokerage Co., 366 Ark. 527, 531, 237 S.W.3d

48, 51 (2006) (dismissing appeal “with prejudice” pursuant to Ark. R. App. P.–Civ. 4(b)(1)

because a timely notice of appeal was not filed). See also Megan Hargraves, Common

Procedural and Jurisdictional Pitfalls to Avoid in Practicing Before the Arkansas Supreme Court, 33

U. Ark. L. Rev. 119, 120–21 (Winter 2011) (citing Seay and warning that “[i]t is critical

for practitioners to ensure that they file all notices of appeal in a timely fashion because an

untimely appeal must be dismissed with prejudice”); Gooch v. Davis, 2018 Ark. App. 587,

11 567 S.W.3d 66 (appeal dismissed with prejudice); Chelstrom v. Chelstrom, 2018 Ark. App.

208 (same); Skyridge Estates, LLC v. Ellis, 2018 Ark. App. 182 (same); Ford v. Milojkovic,

2018 Ark. App. 26 (same); Ballard v. Ally Financial, Inc., 2016 Ark. App. 539, 505 S.W.3d

247 (dismissing appeal with prejudice and distinguishing dismissals without prejudice in

National Home Centers, Inc. v. Coleman, 370 Ark. 119, 257 S.W.3d 862 (2007), and Labry v.

Metropolitan National Bank, 2012 Ark. App. 189, because those cases were appeals from

nonfinal orders, and a final, appealable order had never been entered).

We now dispose of the remaining three motions. The motion to dismiss that was

filed solely by appellee ServiceMaster adopted the appellees’ main motion and then raised

two additional grounds for dismissal based on Rules 3 and 6 of the Arkansas Rules of

Appellate Procedure–Civil. ServiceMaster’s separate motion is granted in part and moot in

part. It is granted to the extent it seeks a dismissal based on the arguments made in the first

motion, which ServiceMaster adopted in its separate motion. The motion is moot to the

extent that we deem it unnecessary to decide the additional arguments for dismissal raised

under Rules 3 and 6.

The dismissal of this appeal moots the two remaining motions, one of which asked

that the briefing schedule be stayed until the motions to dismiss were decided; the other

asked for an extension of time to file the appellant’s brief.

* * *

The motion to dismiss filed by Terminix International Company, L.P., Terminix

International, Inc., ServiceMaster Consumer Services, LP, and Rodney Glenn Lloyd is

granted. The separate motion to dismiss filed by ServiceMaster Consumer Services LP is

12 granted in part, moot in part. Brinkley School District’s motion for an extension of time to

file appellant’s brief, and its motion to stay the briefing schedule, are both moot.

Appeal dismissed with prejudice.

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.