{
  "id": 5683678,
  "name": "Terri PHELAN v. DISCOVER BANK, Bruce Eric Gorham",
  "name_abbreviation": "Phelan v. Discover Bank",
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          "parenthetical": "where governor must veto bill within five days of receiving it, day of receipt is excluded"
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  "casebody": {
    "judges": [],
    "parties": [
      "Terri PHELAN v. DISCOVER BANK, Bruce Eric Gorham"
    ],
    "opinions": [
      {
        "text": "Betty C. Dickey, Justice.\nTerri Phelan appeals the decision of the Washington County Circuit Court granting Discover Bank\u2019s (Discover) motion for new trial and denying Ms. Phelan\u2019s request for attorney\u2019s fees. On appeal, Ms. Phelan argues (1) the trial court should have excluded both the date of filing and the first day of trial when computing the 14-day statutory period pursuant to Ark. Code Ann. \u00a7 16-46-108, and (2) the court should have granted Ms. Phelan\u2019s motion for attorney\u2019s fees. We affirm on both points.\nDiscover sued Ms. Phelan to collect on a credit card debt. At trial, Discover attempted to introduce into evidence an affidavit, credit card statements, and an application for Ms. Phelan\u2019s account. Ms. Phelan objected to the introduction of this evidence on the grounds that the documents had not been filed \u201cat least 14 days prior to the day upon which the trial . . . commences,\u201d in accordance with Ark. Code Ann. \u00a7 16-46-108. The affidavit and supporting documents had been filed on January 13, 2004, and the first day of trial was January 27, 2004. The trial court determined that neither the date of filing nor the first day of trial should be included in the 14-day period, and it excluded the evidence. After objecting to this ruling, Discover rested its case without introducing any additional evidence. The trial court determined that Discover had \u201cfailed to meet its burden to establish the account against [Ms. Phelan],\u201d and dismissed the case with prejudice.\nOn February 18, 2004, Discover filed a motion for new trial, arguing that the trial court had improperly excluded both the date of filing and the date of trial in its computation of time, and asserting that the evidence should have been admitted. Ms. Phelan filed a motion requesting attorney\u2019s fees. The trial court granted Discover\u2019s motion, stating that it had \u201cmiscalculated the number of days prior to trial that the documents in question were filed, and [that] a correct count totals exactly 14 days prior to trial, in accordance with \u00a7 16-46-108.\u201d In the same order, the court also denied, without explanation, Ms. Phelan\u2019s motion for attorney\u2019s fees. Ms. Phelan now appeals the trial court\u2019s order.\nMotion for New Trial\nA trial court\u2019s decision to grant a motion for new trial is reviewed for abuse of discretion. Carlew v. Wright, 356 Ark. 208, 148 S.W. 3d. 237 (2004). Issues of statutory interpretation, however, are reviewed de novo. Nationsbank v. Murray Guard, Inc., 343 Ark. 437, 36 S.W.3d 291 (2001).\nThere is a split of authority on to how to compute a statutory time period when the statute in question requires \u201cat least\u201d or \u201cnot less than\u201d a certain number of days. In Jones v. State, 42 Ark. 93 (1883), this court, while interpreting a statute that required \u201cat least three days\u2019 actual notice,\u201d stated, \u201cWhen a certain number of days are required to intervene between two acts, the day of one, only, of the acts is to be counted, but when a statute requires notice of at least a certain number of days, this means so many full days, and the day of the notice and the act are both excluded from the computation.\u201d Id.\nIn State v. Hunter, 134 Ark. 443 (1918), however, this court came to a different conclusion when addressing a statute that provided that notice shall be filed \u201cnot less than 15 days before the election.\u201d This court acknowledged the holding in Jones, but said, without further explanation, that it did not consider that case to be controlling. The Hunter court held that only one of the days should be excluded when computing the statutory time period.\nAlthough there is authority to support the interpretations of both the Jones and Hunter courts, the bulk of the authority, and all recent cases, support the interpretation of the Hunter court. See Williamson v. Montgomery, 185 Ark. 1129, 51 S.W.2d 987 (1932); Hodge v. Wal-Mart Stores, Inc., 297 Ark. 1, 759 S.W.2d 203 (1988); but see Moore v. State, 52 Ark. 265, 12 S.W. 562 (1889). This court has applied the \u201cexclude-one-day\u201d rule in a variety of situations. Hodge, 297 Ark. 1 (where injured party refiled suit exactly one year after voluntarily filing nonsuit, day of filing nonsuit should have been excluded); State ex rel. Herbert v. Hall, 228 Ark. 500, 308 S.W.2d 828 (1958) (where governor must veto bill within five days of receiving it, day of receipt is excluded); Chavis v. Pridgeon, 207 Ark. 281, 180 S.W.2d 320 (1944) (where notice of appeal to circuit court must be given within 30 days, exclude day on which lower court judgment was rendered); Matthews v. Warfield, 201 Ark. 296, 144 S.W.2d 22 (1940) (where election must be contested within ten days, exclude day on which results are certified); Shanks v. Clark, 175 Ark. 883, 300 S.W. 453 (1927) (five-year limitation period for recovery on a note begins to run the day after the note is due).\nThe Hunter court\u2019s interpretation is reinforced by our statutes and rules of civil procedure. Ark. R. Civ. P. 6(a) specifically states:\nIn computing any period of time prescribed or allowed by these rules, by order of the Court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included.\nIn addition, \u00a7 16-55-119 (1987) provides:\nWhere a certain number of days are required to intervene between two (2) acts, the day of one (1) only of the acts may be counted.\nAs this court noted in Hodge, this is an area of the law in which uniformity can easily be achieved. 297 Ark. at 2. We hold that it is proper to exclude either the date of filing or the first day of trial when computing the 14-day statutory period pursuant to \u00a7 16-46-108, but that it is improper to exclude both dates from the computation. The trial court did not err in granting Discover\u2019s motion for new trial.\nMotion for Attorney\u2019s Fees\nMs. Phelan next argues that the trial court erred in denying her motion to award attorney\u2019s fees. A trial court\u2019s decision regarding the award of attorney\u2019s fees is reviewed for abuse of discretion. Nelson v. River Valley Bank & Trust, 334 Ark. 172, 971 S.W.2d 777 (1998). Ms. Phelan contends that the trial court abused its discretion in denying her motion because the court did not explicitly state why it had chosen to deny the motion. A trial court abuses its discretion when it makes a decision that is arbitrary or capricious. Webber v. Webber, 331 Ark. 395, 962 S.W.2d 345 (1998). According to Ms. Phelan, a court acts in an arbitrary and capricious manner any time it makes a ruling that is \u201cwithout discussion and without reason.\u201d There is no authority to support this proposition. The only case cited by Ms. Phelan that is on point, Bailey v. Rahe, 355 Ark. 560, 142 S.W.3d 634 (2004), held that the lower court abused its discretion in awarding attorney\u2019s fees, not because the trial court had failed to give an explanation for its decision, but because \u201cwe are unable to discern exactly on what basis it did so.\u201d In this case, the trial court denied Ms. Phelan\u2019s request for attorney\u2019s fees in the same order in which it granted Discover\u2019s motion for new trial. It is clear that the lower court\u2019s decision was based on the fact that, once it had determined that a new trial was in order, Ms. Phelan was no longer the prevailing party and, therefore, no longer entitled to attorney\u2019s fees. See Burnette v. Perkins & Associates, 343 Ark. 237, 33 S.W.3d 145 (2000). The trial court did not abuse its discretion in denying Ms. Phelan\u2019s motion for attorney\u2019s fees.\nAffirmed.",
        "type": "majority",
        "author": "Betty C. Dickey, Justice."
      }
    ],
    "attorneys": [
      "Taylor Law Firm, by: Sonya J. Dodson, for appellant.",
      "Southern & Allen, by: Christian W. Frank, for appellee."
    ],
    "corrections": "",
    "head_matter": "Terri PHELAN v. DISCOVER BANK, Bruce Eric Gorham\n04-477\n205 S.W.3d 145\nSupreme Court of Arkansas\nOpinion delivered March 10, 2005\nTaylor Law Firm, by: Sonya J. Dodson, for appellant.\nSouthern & Allen, by: Christian W. Frank, for appellee."
  },
  "file_name": "0138-01",
  "first_page_order": 158,
  "last_page_order": 163
}