Robinson v. Whitey's Truck Ctr Inc.

2014 Ark. App. 484

• Court: Court of Appeals of Arkansas
• Decided: September 17, 2014
• Docket: CV-14-325
• Status: Published

Opinion

Cite as 2014 Ark. App. 484

ARKANSAS COURT OF APPEALS EN BANC No. CV-14-325

Opinion Delivered SEPTEMBER 17, 2014

TODD ROBINSON APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, THIRD DIVISION APPELLANT [NO. 60-CV-13-1342]

HONORABLE JAY MOODY, JUDGE V. MOTION DENIED IN PART; GRANTED WHITEY’S TRUCK CENTER, INC. IN PART APPELLEE

PER CURIAM

Before us are appellee Whitey’s Truck Center, Inc.’s alternative motions for remand to

settle the record, to allow Whitey’s to be deemed the appellant, or for rule on clerk, together

with appellant Todd Robinson’s response. For clarification, we identify the applicable dates

cited to us by the parties:

• December 2, 2013 Jury Verdict returned in favor of Robinson. • December 4, 2013 Motion for Judgment Notwithstanding the Verdict by Whitey’s. • January 6, 2014 Judgment entered on Jury Verdict by trial court. • January 7, 2014 Effective date Motion for JNOV deemed filed under our rules and case law. • January 16, 2014 Notice of Appeal filed by Whitey’s. • February 4, 2014 Notice of Appeal filed by Robinson. • February 6, 2014 Motion for JNOV deemed denied. • February 11, 2014 Order for New Trial entered by trial court. • April 16, 2014 Record lodged by Robinson. Cite as 2014 Ark. App. 484

With a reference to the National Weather Service, Whitey’s states that beginning

February 4, 2014, Little Rock “was struck by a series of severe ice and snow storms, rendering

many roads impassable and closing, at times, public offices.” Thereafter relying on both state

and federal case authority, Whitey’s asks for the record to be settled, corrected, or supplemented

“to provide a record concerning the ability of [the trial judge] to reach his office despite the

weather conditions, as it seems unlikely he would purposely have an order entered that he knew

was untimely.” Alternatively, Whitey’s asks us to deem it the appellant based on “its timely

notice of appeal” and the lodging of the record within ninety (90) days of the filing even though

the later task was undertaken by Robinson. As a second alternative, Whitey’s asks us to issue

a rule on the clerk to allow it to lodge the record as its own.

In response, Robinson argues that Whitey’s attaches no documentation with regard to

the weather, that his case authorities do not deal with the issue of a judge’s inability to reach the

courthouse, that the “deemed denied” rule is strictly construed, and that it is premature to

determine whether Whitey’s should be the appellant.

The legal issues separating the parties are a separate matter for decision on appeal.

Procedurally, however, the parties, and we, are bound by the appellate rules as they are written

and construed. While both parties filed timely appeals, Whitey’s filed the initial notice of appeal

on January 16, 2014. Thereafter, the Order for New Trial was entered, but not until after the

Motion for JNOV was deemed denied. We deny Whitey’s request to remand to settle the

record; we grant Whitey’s alternative request that it be deemed the appellant; and we decline

the request for rule on clerk.

The clerk will set the briefing schedule.