Lloyd Vickroy v. Brad Schaufler

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION I

LLOYD VICKROY

APPELLANT

V.

BRAD SCHAUFLER

APPELLEE

CA 01-938

MARCH 13, 2002

APPEAL FROM THE FULTON COUNTY CIRCUIT COURT

[NO. CIV-2000-6-2]

HONORABLE JOHN NORMAN HARKEY, CIRCUIT JUDGE

APPEAL DISMISSED

The appellant, Lloyd Vickroy, filed a pro se complaint in the Fulton County Circuit Court seeking one million dollars in compensatory damages and an additional one million dollars in punitive damages from the appellee, Brad Schaufler, for violating appellant's First and Fourteenth Amendment rights and the right of free passage upon the interstate. The circuit court entered an order in favor of appellee on December 19, 2000. On appeal, appellant claims that the circuit court abused its discretion by not finding that appellee unlawfully violated appellant's right of free passage, right to be free of unreasonable search and seizure, and right to be free from false arrest. We dismiss.

On August 14, 1999, at approximately 10:28 p.m., appellant drove out of the driveway of Ms. Berry, an elderly widow. Eighteen months earlier, Berry had contacted the sheriff's office, spoken with appellee, a deputy, and requested that the sheriff's office make

a special effort to watch her home and property. While in his patrol car on the evening of August 14, 1999, appellee observed appellant as he exited Berry's property. Appellee began to follow appellant and noticed mechanical problems with the lighting on appellant's truck. At that time, appellee called the dispatcher and requested a check on the ownership of the truck. Then, appellee stopped appellant in his vehicle.

Appellee walked from his patrol car to appellant's truck window. Appellee explained that Berry had been having problems with burglars and asked appellant for his driver's license, which appellant provided. After appellee confirmed the name on the license, he returned it to appellant and said, "that's all I need from you." According to appellant, the entire stop took about five minutes from the time appellee walked up to the truck until appellee returned to his patrol car. Appellant did not get out of his truck; appellee did not search appellant or his truck; and appellee did not issue appellant a citation.

We do not reach the merits of appellant's arguments on appeal as we are without jurisdiction to do so. Arkansas Rule of Appellate Procedure 4(b)(1) (2001) provides for an extension of time for the filing of a notice of appeal as follows: (1) 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.

Appellant filed a motion for reconsideration on December 22, 2000, three days after the lower court entered its order in favor of appellee. The circuit court held a hearing on the motion to reconsider on May 22, 2001, and entered an order denying the motion on July 25, 2001. Appellant filed his notice of appeal on August 6, 2001.

We treat appellant's motion for reconsideration as a Rule 4 filing. See Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997); Arkansas Dep't of Human Servs. v. Thomas, 71 Ark. App. 348, 33 S.W.3d 514 (2000); Guthrie v. Twin City Bank, 51 Ark. App. 201, 913 S.W.2d 792 (1995). Therefore, the "deemed denied" provision of Rule 4 of the Arkansas Rules of Appellate Procedure would apply. Here, the trial court failed to act upon appellant's motion to reconsider within thirty days of its filing. Thus, the motion for reconsideration was deemed denied by operation of law as of the thirtieth day, and appellant's notice of appeal was due within thirty days from that date. Clearly, appellant failed to file a timely notice of appeal as it was filed on August 6, 2001. The failure to file a timely notice of appeal deprives this court of jurisdiction. Williams v. Hudson, 320 Ark. 635, 898 S.W.2d 465 (1995); Schaeffer v. City of Russellville, 52 Ark. App. 184, 916 S.W.2d 134 (1996). Being without jurisdiction, we must dismiss this case.

Robbins and Roaf, JJ., agree.