                                  Cite as 2015 Ark. App. 687

                 ARKANSAS COURT OF APPEALS
                                        DIVISION II
                                       No. CV-15-442


THE LOGAN CENTERS, INC., ET AL.                   Opinion Delivered   DECEMBER 2, 2015
                   APPELLANTS
                                                  APPEAL FROM THE ST. FRANCIS
V.                                                COUNTY CIRCUIT COURT
                                                  [NO. CV-13-49-1]

CARLA WALKER, AS                                  HONORABLE L.T. SIMES II, JUDGE
ADMINISTRATRIX OF THE ESTATE
OF ANTONIO COZART                                 REVERSED AND REMANDED
                     APPELLEE



                              DAVID M. GLOVER, Judge

       This is the second time this case has been before this court. As we explained in the

original opinion, appellee, Carla Walker, as administratrix of the estate of Antonio Cozart

(Estate), filed a complaint instituting medical-malpractice and wrongful-death actions against

appellants, The Logan Centers, Inc., et al. (Logan Centers). Logan Centers, Inc. v. Walker,

2014 Ark. App. 203. Before expiration of the time to respond to the complaint, Logan

Centers’ counsel filed a notice of appearance and motion for extension of time to respond to

the complaint pursuant to Ark. R. Civ. P. 6(b)(1). The Estate filed motions in which it

objected to any extension and sought a default judgment. Logan Centers filed an answer seven

days after the expiration of the time for filing the answer. Following a hearing on the motions,

the trial court denied Logan Centers’ motion for extension of time to respond to the

complaint, granted the Estate’s motion to strike Logan Centers’ answer, and granted default

judgment in favor of the Estate. The original appeal followed, and Logan Centers contended
                                  Cite as 2015 Ark. App. 687

that the trial court erred as a matter of law in applying the more stringent standard applicable

to Ark. R. Civ. P. 6(b)(2) rather than the “for cause shown” standard of Ark. R. Civ. P.

6(b)(1). We agreed and reversed and remanded the case to the trial court with instructions to

apply the Rule 6(b)(1) standard in deciding Logan Centers’ motion for extension.

       On remand, the trial court heard arguments on the motion and again denied the

motion for extension in an order dated February 2, 2015, finding in part that Logan Centers

never presented to the court or requested the court to rule on its motion for extension before

the expiration of the time required to answer the Estate’s complaint and that the records and

oral presentations made by Logan Centers in support of the motion for extension lacked

credible evidentiary proof. The trial court again struck Logan Centers’ answer as untimely and

reinstated its grant of a default judgment against it. The instant appeal followed.

       In this appeal, Logan Centers contends that: 1) on remand, the trial court erred in

denying Logan Centers’ timely motion for an extension of time to respond to the complaint,

and 2) the trial court erred in striking Logan Centers’ answer and entering a default judgment

under Ark. R. Civ. P. 55. We again reverse and remand this case for further proceedings

consistent with this opinion.

       Logan Centers first contends the trial court erred as a matter of law in finding that

Rule 6(b)(1) required them to present the timely filed motion for extension to the trial court

or request the court to rule on the motion before the time to answer expired. We agree.

       We employ an abuse-of-discretion standard in reviewing a trial court’s decision to

grant or deny a motion for extension of time pursuant to Ark. R. Civ. P. 6(b). Layman v.


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Bone, 333 Ark. 121, 967 S.W.2d 561 (1998). However, the proper construction of a court

rule is reviewed under a de novo standard. Pope v. Overton, 2011 Ark. 11, 376 S.W.3d 400.

       Rule 6(b)(1) of the Arkansas Rules of Civil Procedure provides,

       (b) Enlargement. When by these Rules or by a notice given thereunder or by order
       of the court an act is required or allowed to be done at or within a specified time, the
       court for cause shown may at any time in its discretion (1) with or without motion or notice,
       order the period enlarged if request therefor is made before the expiration of the period
       originally prescribed or as extended by a previous order[.]

(Emphasis added.) In our original opinion, we explained the differences in subsections (1) and

(2), and we quoted with approval a discussion concerning Rule 6(b)(1) from 4B Charles A.

Wright & Arthur R. Miller, Federal Practice and Procedure § 1165 (3d ed. 2004):

               A showing of mistake (or inadvertence, surprise, or excusable neglect) is
       necessary under Rule 6(b) only when the motion for extension of time is filed after the
       applicable filing period has already expired. When a motion is made before the filing
       period has expired, those factors need not be shown, and it is necessary only to “show
       cause” under the less stringent standard applicable to Rule 6(b)(1). There are no
       Arkansas cases differentiating between these standards, but the notes to Rule 6 indicate
       that it is virtually identical to the federal rule. With respect to the federal rules, the
       leading authority states:

                      Rule 6(b)(1)(A) gives the court wide discretion to grant a request for
              additional time that is made prior to the expiration of the period originally
              prescribed or prior to the expiration of the period as extended by a previous
              enlargement order. However, at least two courts of appeals have held that an
              extension is effective only if the court explicitly extends the time period under
              Rule 6(b); a request for a status report and the continued administration of the
              case after the expiration date are not evidence of an implied extension under
              Rule 6(b).

                     Because the district court may exercise its discretion under Rule 6(b)(1)
              only “for good cause,”[1] a party must demonstrate some justification for the


       1
        The federal rule contains the adjective “good” before cause. Our rule states for
“cause shown.”

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              issuance of the extension. However, an application for the enlargement of time under
              Rule 6(b)(1) normally will be granted in the absence of bad faith on the part of the party
              seeking relief or prejudice to the adverse party. Neither a formal motion for enlargement
              nor notice to the adverse party is expressly required by the rule.

Logan Centers, 2014 Ark. App. 203, at 3 (emphasis added). In our original opinion, after

explaining the different treatment under the rule concerning motions for extension filed after

the expiration of an applicable time period versus those filed before, we then further

explained,

               It is true that a motion to extend time to file an answer is not a substitute for
       filing an answer and does not automatically extend the time for filing an answer under
       Rule 12. But that is not the issue here. The question, instead, is whether the trial court
       erred in applying the Rule 6(b)(2) standard that requires a showing of facts constituting
       mistake, inadvertence, surprise, or excusable neglect, instead of the “show cause”
       standard of Rule 6(b)(1) that “normally will be granted in the absence of bad faith on the part
       of the party seeking relief or prejudice to the adverse party.” We hold that the Rule 6(b)(1)
       standard is applicable here, and we reverse and remand for further consistent
       proceedings.

Id. at 4 (emphasis added) (citations omitted).

       On remand, Logan Centers submitted to the trial court affidavits in support of its

request for an extension. Its counsel also filed an affidavit, laying out a detailed time line of

events that provided in part:

       a.      Jeannie Boeckmann (now Sherman) as agent for the Logan Centers was served
              with the complaint on April 23, 2014 [sic];
       b.     Ms. Sherman contacted her personal attorney, Paul Ford, as well as the
              insurance agent and the claim was reported on May 7, 2013;
       c.     Notice was received by the insurance carrier on May 9, 2013;
       d.     The insurance carrier communicated with attorney Paul Ford during the initial
              investigative process including communication with Ms. Sherman;
       e.     On May 17, 2013, after confirming no conflicts of interest, the insurance carrier
              assigned my firm as defense counsel;
       f.     On May 19, 2013, the formal assignment was received by my office;


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       g.     On May 20, 2013, I had an initial conference with Ms. Sherman and Mr. Ford
              regarding the Complaint and additional investigation and action plan;

       h.     On May 21, 2013, after I received no response to various communications sent
              to Plaintiff’s counsel regarding an extension and the proper party defendants,
              I filed a Notice of Appearance and timely Motion for Extension of Time to
              Respond to the Complaint requesting an additional twenty days and as cause
              stated that there were Defendants who were not proper and I had recently
              received the assignment and needed additional time to respond.

       In its order following remand, the trial court explained its basis for denial of the motion

as follows:

       1.     The Court finds that the defendants’ Motion for Extension of Time was filed
              on May 22, 2013. The defendants never presented to the Court or requested the Court
              to rule on its Motion for Extension before the expiration of the time required to answer
              the plaintiffs’ complaint.
       2.     The Court finds that the records and oral presentation made by the defendants in support
              of their Motion for Extension lacks credible evidentiary proof therefore, the Motion
              for Extension is denied.

(Emphasis added.) The trial court’s decision focused on a matter not even required by the

rule—the lack of a request to rule on the motion for extension that had already been timely

filed. Rule 6(b) does not require a party that has filed a timely motion for extension to then

additionally request the trial court to rule on that motion prior to the expiration of the time

to answer. Neither does the rule require an evidentiary hearing. The rule requires only the

showing of cause for requesting an extension. Therefore, to the extent the trial court based

its denial on a lack of evidence, we also find error.

       Rule 6(b)(1) requires “cause shown.” In our original opinion remanding this case, we

explained that Rule 6(b)(1) was a less stringent standard than that contained in Rule 6(b)(2);

that the “cause shown” standard of Rule 6(b)(1) “‘normally will be granted in the absence of


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bad faith on the part of the party seeking relief or prejudice to the adverse party’” (quoting

Wright & Miller’s discussion); that the Rule 6(b)(1) standard was applicable in this case; and

that we were remanding for further proceedings consistent with our opinion. We have

concluded that the trial court’s analysis on remand was anything but consistent with our

earlier opinion. We once again reverse and remand this case to the trial court for further

proceedings consistent with this opinion.

       Reversed and remanded.

       HIXSON and HOOFMAN, JJ., agree.

       Hagwood Adelman Tipton, PC, by: Rebecca Adelman, for appellant.

      Wilson Law Firm, P.A., by: E. Dion Wilson and Don Etherly; Harris Shelton Hanover
Walsh, PLLC, by: Christopher S. Campbell and Michael F. Rafferty, for appellee.




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