Billy Joe Moody v. Farm Bureau Mutual Insurance Company of Arkansas, Inc., et al.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

BILLY JOE MOODY

APPELLANT

V.

FARM BUREAU MUTUAL INSURANCE COMPANY OF ARKANSAS, INC., ET AL.

APPELLEES

CA 05-910

March 8, 2006

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CV 01-5816]

HONORABLE BARRY ALAN SIMS

JUDGE

AFFIRMED

Terry Crabtree, Judge

The appellant Billy Joe Moody filed a complaint against the appellees in June 2001 alleging causes of action for breach of contract, promissory estoppel, fraud and deceit, and tortious interference with contractual relationships and business expectancies. We previously dismissed a former appeal for the lack of a final and appealable order because the order of summary judgment only disposed of the breach-of-contract claim, but not the other causes of action. Moody v. Farm Mutual Insurance Co., unpub. opin. (Dec. 1, 2004).

On February 28, 2005, after our mandate had been issued, the trial court entered two orders purporting to dispose of all the claims. On April 7, 2005, appellant filed a motion to extend the time for filing a notice of appeal from the two orders based on the contention that he had not received notice that the orders had been entered. After a hearing, the trial court denied this motion, and appellant now appeals that decision. We affirm.

A review of the record reveals the following sequence of events. On December 16, 2004,

attorney William Waddell, who represents appellees Southern Farm Bureau Casualty Insurance Company, Southern Farm Bureau Life Insurance Company, and Farm Bureau Mutual Insurance Company, transmitted a proposed order of summary judgment disposing of the claims made agains this clients. On December 28, 2004, appellant's attorney wrote the court objecting to the form of the order. Counsel complained that the proposed order did not accurately reflect the court's previous ruling and made findings that went beyond the "reasons argued" in the motions for summary judgment. Counsel thus asked the court for permission to file an amended response to the motions for summary judgment.

On February 21, 2005, attorney Richard Watts submitted a proposed order of summary judgment as to his clients, appellees Arkansas Farm Bureau Federation, Inc., and Sebastian County Farm Bureau, Inc. On February 24, 2005, appellant's counsel wrote a letter to the trial court objecting to the entry of this order for the same reasons he objected to the order submitted by attorney Waddell. Again, counsel asked to be allowed the opportunity to file a supplemental response to the motions for summary judgment. As stated earlier, the trial court entered both summary- judgment orders on February 28, 2005.

At the hearing on appellant's motion to extend the time for filing the notice of appeal, Brooks Gill, appellant's attorney, testified that he had not received an email, fax, or mail delivery notifying him that the orders had been entered. He said that the first indication he had of the summary-judgment orders being entered was in an email from attorney Waddell dated April 6, 2005, in which Waddell inquired if appellant had elected not to appeal the orders. Gill said that, upon receiving this email, he unsuccessfully tried to reach Waddell by phone, but that he was able to speak with Watts who informed him that the orders had indeed been entered. After this conversation, Watts faxed a copy of an email purportedly sent to Gill by Waddell, and copied to Watts, dated February 28, 2005, advising Gill that an order of summary judgment had been entered that day as to the appellees that were Waddell's clients. In the email, Waddell further advised that he assumed an order had also been entered as to the appellees that were Watts's clients.

In his testimony, Gill stated that he had not received the February 28, 2005 email from Waddell. He further testified that he had instructed his former secretary to check the clerk's office in January 2005 to see if any order had been entered. To his knowledge, his secretary had checked at least twice during the month of January. Gill testified that the attorneys in the office did not have separate email addresses and that his legal assistant, Amy Hollinger, was responsible for checking the email each morning. Gill said that his wife, attorney Jo Carol Gill, picked up the firm's mail every morning from their post office box.

Amy Hollinger, who had been a legal secretary for eight years, testified that she checks the emails every day, or at least every other day. Her practice was to print a copy of an email to give to the appropriate attorney in the firm, and she said "then I cut and paste the electronic copy into a file folder." She said that she had reviewed the emails from the saved files in February and March of 2005 and that she found no emails from either Waddell or Watts during that period of time. Hollinger stated that there had been complaints from several people that the firm had not received emails that had been sent. She also testified that their internet provider had installed a spam blocker to intercept junk mail. When this service was new, she often checked the website where the blocked emails had been sent, but she said that she no longer checks that site very often. She explained that the spam website deletes the junk mail after several days, so she could not say whether any emails from Waddell or Watts had been intercepted by the spam blocker. She could not recall a time when the spam blocker incorrectly captured an official email. She added that the hard drive on the computer had not been reviewed.

Attorney Jo Carol Gill testified that she retrieved the firm's mail from the post office every day. She said that she and her husband discussed their cases and that she was aware that her husband was anticipating a response from the court concerning his request to file supplemental responses to the motions for summary judgment. Ms. Gill testified that she saw no mail from the court or the clerk's office in February or March 2005. She said that it was common for the firm to send and receive documents via email.

Attorney Watts testified that he had sent an email to both Waddell and Gill on March 1, 2005, advising them that he had received a copy of the signed order pertaining to his clients in the mail the day before. This email, a copy of which was introduced into evidence, carried forward the email of February 28 that had been sent by Waddell to Gill and Watts.

At the conclusion of the hearing, the trial court denied without comment appellant's motion to extend the time for filing the notice of appeal. Appellant contends that the trial court erred in denying the motion because his attorney did not receive notice that the orders had been entered and because his attorney exercised due diligence in following the status of the case.

Rule 4(b)(3) of the Rules of Appellate Procedure - Civil provides:

Upon a showing of failure to receive notice of the judgment, decree, or order from which appeal is sought and a determination that no party would be prejudiced, the circuit court shall, upon motion filed within 180 days of entry of the judgment, decree, or order, extend the time for filing the notice of appeal for a period of 14 days from the day of entry of the extension order.

In conjunction with this rule, our law imposes a duty on lawyers and litigants to exercise reasonable diligence to keep up with the status of their case. Arnold v. Camden News Publishing Co., 353 Ark. 522, 110 S.W.3d 268 (2003). In January 2004, Rule 4(b)(3) was amended to read that the circuit court "shall" rather than "may" extend the time for filing the notice of appeal when it is shown that there was a failure to receive notice of the judgment. However, in the case of Arkco Corp. v. Askew, ___ Ark. ___, ___ S.W.3d ___ (Jan. 5, 2005), the supreme court held that the amendment to the rule did not affect the requirement for lawyers to exercise due diligence in keeping up with the docket.

The standard for reviewing the denial of a motion to extend the time to file a notice of appeal is whether the trial court abused its discretion. Arnold v. Camden News Publishing Co., supra. Therefore, a trial court's refusal to grant the motion will not be reversed unless an abuse of discretion is shown. Id. An abuse of discretion means a discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. Id.

The record indicates that emails were sent to appellant's counsel by both attorneys Waddell and Watts within days of the entry of the orders that gave notice that the orders had been entered. Even if we could say that appellant's counsel received neither email, we could not conclude that counsel acted with due diligence in keeping up with the status of the case. Appellant's counsel was aware that two orders had been submitted to the court as of February 21, yet for over a month, counsel neglected to ascertain whether the court had entered the orders. Under these circumstances, we find no abuse of discretion in the denial of the extension motion.

Affirmed.

Pittman, C.J., and Glover, J., agree.