Virginia C. Reed d/b/a Western Heritage Auction v. Daren Ward

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION IV

CA01-489

NOVEMBER 28, 2001

VIRGINIA C. REED, d/b/a AN APPEAL FROM THE WASHINGTON WESTERN HERITAGE AUCTION COUNTY CIRCUIT COURT

APPELLANT [CIV99-911]

v.

DAREN WARD HON. KIM MARTIN SMITH,

APPELLEE CIRCUIT JUDGE

REVERSED AND REMANDED

Appellant sued Donald Reed and appellee, Daren Ward, for conversion, seeking damages in the sum of $41,056.91 plus punitive damages, costs, and attorney fees. On July 26, 2000, after appellee filed his answer, his attorney, John P. Robinson, withdrew, citing lack of communication and cooperation on the part of appellee. On July 27, 2000, Robinson was relieved as counsel by court order. The order required that "all future communications and pleadings [be] forwarded to Daren Ward directly at his address."

On September 19, 2000, appellant served appellee a notice to take deposition on October 17, 2000. The following day, appellant prepared and served requests for production of documents upon appellee. Appellee neither appeared for the deposition nor answered the requests. On October 18, 2000, appellant mailed appellee requests for admission of fact and served them in accordance with Rule 5 and 6(d) of the Arkansas Rules of Civil Procedure.

Appellee did not answer the requests for admission within thirty days after service; thus, on November 29, 2000, appellant subsequently filed a motion requesting that the matters contained in the requests for admission be deemed admitted and praying for summary judgment. On December 4, 2000, appellee responded to the requests for admission of fact and filed, on December 11, 2000, a motion asking the court to excuse him for his late responses. On December 22, 2000, a hearing was had on said motion, and the trial court allowed the late responses, finding excusable neglect. Thus, appellant's motion for the requests to be deemed admitted and motion for summary judgment were denied. A jury trial resulted in a judgment for appellee.

On appeal, appellant contends that the trial court abused its discretion in allowing the appellee to file his answers regarding the requests for admission of fact some forty-two days after he was provided service.1 We agree, and consequently, reverse andremand.

Appellee points to the fact that his responses to the requests for admission of fact were filed immediately upon his hiring a new attorney, and occurred the first work day following the appellee's actual receipt of the plaintiff's requests for admission. Hence, he contends that the trial court did not abuse its discretion in allowing him to submit his response to appellant's requests for admission and denying appellant's motion for summary judgment.

Rule 36(a) of the Arkansas Rules of Civil Procedure, in pertinent part, provides that:

A party may serve upon any other party a written request for admission. . . . The matter is admitted unless, within 30 days after service of the request, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney.

The policy of our court has been to require compliance with the rules governing responses to requests for admission. See Barnett Rest. Supply, Inc. v. Vance, 279 Ark. 222, 650 S.W.2d 568 (1983)(citing Stocker v. Hall, 269 Ark. 468, 602 S.W.2d 662 (1980)). However, Rule 6(b)(2) of the Arkansas Rules of Civil Procedure does provide for extensions of time to respond in instances of excusable neglect. Id. It is within the discretion of the trial court to permit acceptance of late responses when there is a justifiable reason for the delay, and the plaintiff is not amply prejudiced by the delay in defendant's response. Belcher v. Bowling, 22 Ark. App. 248, 738 S.W.2d 804 (1987).

Here, we hold there is no excusable neglect. Appellee testified that he was in and out of town on business trips; that he was in for maybe a day at a time and he usually didnot check his mail; and that he did not see the requests for admission until after the thirty-day time period. He stated that once he discovered the requests, on the next business day, he hired another attorney who immediately filed a response. However, appellee was on notice that, once his counsel was relieved, all future correspondence regarding his case would be sent to his home address. After appellee's counsel was relieved, the requests for admission and all other correspondence were sent to appellee's home address as ordered by the court. The court, in the hearing, stated as follows:

I take into consideration that he was unrepresented in this matter and failed to show for a deposition, although notice was given . . . [a]lthough this is not an excuse in itself, he is bound as Mr. Estes notes to the same rules as an attorney would be to choose to go unrepresented . . . based on the testimony, I [the court] believe that he [appellee] didn't see them and if he did, he would have answered them and I am going to take into consideration that this is a highly contested case as to the amount of everything on that truck and whether he had any knowledge of it, and as a result, I think that in the interest of justice, this matter needs to be heard on the merits by a jury and I believe that he has shown me excusable neglect in answering it late.

Daren Ward testified that he was in and out of town, did not have time to check his mail, just placed it on the counter, and that he did not see a letter from appellant's counsel. The fact that appellee proclaims he did not see the correspondence from appellant does not rise to the level of excusable neglect. We therefore reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

PITTMAN and VAUGHT, JJ., agree.

1 We note that appellant's argument is couched in terms of an appeal from the denial of her summary judgment motion. The general rule is that the denial of a motion for summary judgment is neither reviewable nor appealable. See Hodges v. Hukabee, 333 Ark. 247, 968 S.W.2d 619 (1998); Ozarks Unlimited Resources Coop., Inc. v. Daniels, 333 Ark. 214, 969 S.W.2d 169 (1998); Nucor Holding Corp. v. Rankines, 326 Ark. 217, 931 S.W.2d 426 (1996). However, an appeal may properly be taken from a procedural ruling on which the denial of a motion for summary judgment is based. BPS, Inc. v. Parker, 345 Ark. 381, 47 S.W.3d 858 (2001); Danco Constr. Co. v. City of Fort Smith, 268 Ark. 1053, 598 S.W.2d 437 (Ark. App.1980). In the present case, the trial court's finding of excusable neglect prevented appellant from relying on the matters contained in the requests for admissions and was a final disposition of that issue; it is therefore appealable. Danco Constr. Co. v. City of Fort Smith, supra.