Cite as 2026 Ark. App. 499
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-25-506
BFT RENTAL, LLC Opinion Delivered October 28, 2026
APPELLANT
APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT
V. [NO. 72CV-23-3442]
CITY OF FAYETTEVILLE HONORABLE DOUG MARTIN,
APPELLEE JUDGE
AFFIRMED
N. MARK KLAPPENBACH, Chief Judge
Appellant BFT Rental, LLC (“BFT”), appeals the Washington County Circuit
Court’s order granting a directed verdict in favor of the City of Fayetteville (“the City”) after
BFT failed to appear for trial. On appeal, BFT purports to appeal both the May 13, 2025
order granting the City’s motion for directed verdict and the court’s February 27, 2025 order
granting BFT’s former counsel’s motion to withdraw as counsel of record. We affirm.
I. Relevant Facts
The City filed a condemnation action against BFT on November 8, 2023, followed
by a motion for immediate possession on November 13. In its motion for immediate
possession, the City claimed that it was authorized by eminent domain to acquire real
property owned by BFT for a lawful public purpose, the construction of a water-transmission
main. The City further claimed that “[p]ursuant to Ark. Code Ann. § 18-15-303, Plaintiff may present an advance deposit of money to this Court for the purpose of making just
compensation when the amount thereof has been assessed to obtain an immediate right of
entry and possession in real property prior to trial if determination of the question in
controversy in the proceedings is likely to delay progress of the work.” The City asserted that
it had deposited $112,180 into the registry of the court to compensate BFT for the taking.
BFT answered the complaint on November 15, and the court entered an order of
possession in favor of the City on November 16. BFT filed an unopposed motion to
withdraw the $112,180 deposit on November 28, which was granted by the court on
December 14. BFT’s original counsel filed a motion to withdraw as attorney of record on
March 28, 2024, which the court granted on April 1. Attorney Tona DeMers filed an entry
of appearance on behalf of BFT on July 2.
On September 23, 2024, the court issued a “Jury Trial Setting and Scheduling” order,
which set a one-day jury trial “in the second out position” for April 30, 2025, and outlined
other discovery deadlines, including the naming of expert witnesses and filing of dispositive
motions.
On January 31, 2025, Tona DeMers moved to withdraw as attorney of record for
BFT. The City responded to the withdrawal motion on February 3, and although it did not
object to counsel’s withdrawal, it did object to the continuance because the “action was filed
on November 8, 2023, and trial [was] now less than three (3) months away. The City’s expert
and lay witnesses [had] made arrangements to attend the scheduled trial on the date set by
the Court, and the City [was] prepared to proceed.” The City further stated that DeMers
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was “Defendant’s second attorney of record to request withdrawal during the pendency of
this action. . . . [It] object[ed] to any continuance of the trial in this matter based upon her
withdrawal or Defendant’s retention of its third attorney of record.” DeMers replied on
behalf of BFT, arguing that April 30, 2025, was the first trial setting; the trial was a “secondout setting,” meaning there was no guarantee it would go to trial that day; and there would
be no prejudice created by the court’s grant of a continuance so that BFT could retain new
counsel.
The court granted the motion to withdraw on February 27 but not the continuance.
Following the February 27 order, the City designated expert witnesses, named exhibits and
witnesses, and filed a motion in limine and jury instructions. The motion in limine was
served on BFT’s registered agent six days before trial. BFT did not respond.
The matter proceeded to an April 30 jury trial, at which BFT failed to appear. The
City moved for—and the court orally granted—a directed verdict affirming the City’s
ownership of the easement and awarding just compensation to BFT in the amount of
$112,180. On May 7, a new attorney, S. Lance Cox, filed an entry of appearance on behalf
of BFT. Two days later, BFT filed a motion for new trial and brief in support.
In its motion, BFT moved for “a new trial pursuant to Rule 59 or, alternatively, Rule
60 of the Arkansas Rules of Civil Procedure.” BFT argued that the court’s February 27 order
granting withdrawal but denying the request for continuance was an “abuse of discretion
and reversible error in a case in which there had been no prior continuances, and in which
the Plaintiff would suffer no prejudice by a continuance.” BFT contended that doing so was
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contrary to Arkansas Rule of Civil Procedure 59(a)(1). Alternatively, BFT argued that the
court should modify or vacate the judgment as permitted by Rule 60 of the Arkansas Rules
of Civil Procedure.
The court entered its written order granting the City’s motion for directed verdict on
May 13, finding that because BFT did not appear at trial and did not submit a witness list or
an exhibit list, it “failed to carry its burden in establishing an entitlement to additional
compensation beyond that which was deposited by Plaintiff . . . [and] a reasonable jury would
not have a sufficient evidentiary basis to award Defendant just compensation in excess of
that previously deposited by the [City].”
The City responded in opposition to BFT’s motion for new trial on May 14, and BFT
replied on May 27. The court did not rule on the motion, and on June 16, BFT filed its
notice of appeal, which designated the “Court’s Order Granting Motion to Withdraw, filemarked February 27, 2025, and the Court’s subsequently entered Order Granting Plaintiff
City of Fayetteville’s Motion for Directed Verdict, file-marked May 13, 2025.”
II. Discussion
BFT sets forth a singular point on appeal—that the circuit court’s May 13, 2025 order
granting the City’s directed-verdict motion and its subsequent denial of appellant’s motion
for new trial should be reversed. However, BFT also purports to challenge the February 27,
2025 order in which the court granted counsel’s motion to withdraw and denied its motion
for continuance. BFT failed to preserve its challenges to the circuit court’s February 27 order
by failing to raise them before filing its motion for new trial.
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Generally, we are precluded from reaching issues on appeal that are first raised in a
motion for new trial. See, e.g., Tate-Smith v. Cupples, 355 Ark. 230, 244, 134 S.W.3d 535, 543
(2003); Nash v. Nash, 2019 Ark. App. 173, at 12, 574 S.W.3d 171, 179. “[A]n objection first
made in a motion for new trial is not timely.” Tate-Smith, 355 Ark. at 244, 134 S.W.3d at
543. The Arkansas Supreme Court has explained that this reasoning “is to discourage
‘sandbagging’ on the part of lawyers who might otherwise take a chance on a favorable result
and subsequently raise [an issue] if the gamble did not pay off.” Lee v. Daniel, 350 Ark. 466,
476–77, 91 S.W.3d 464, 470 (2002) (quoting Selph v. State, 264 Ark. 197, 204, 570 S.W.2d
256, 260–61 (1978)). A party may not wait for the outcome of the case before deciding to
bring an error to the court’s attention. See, e.g., Jones v. Double “D” Props., Inc., 352 Ark. 39,
49, 98 S.W.3d 405, 410 (2003). For that reason, we are precluded from reaching the circuit
court’s grant of BFT’s motion to withdraw and denial of its motion for continuance—issues
that were first raised in its motion for new trial—on appeal.
Here, despite the court’s February 27 order denying BFT’s request for continuance
and the appellant’s own admission that it retained new counsel in mid-March, BFT lodged
no objection to the court’s order until more than two months later, following the outcome
of the trial at which it failed to appear. To the contrary, BFT first objected to the February
order denying the request for a continuance and granting the motion to withdraw in its
motion for new trial, which was deemed denied. In so doing, BFT failed to preserve its
claims, and we therefore decline to address them on appeal.
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BFT’s final contention is that the circuit court erred in denying the motion for new
trial. However, we have likewise held that a contemporaneous objection is required when a
new trial is sought on the basis of an irregularity under Arkansas Rule of Civil Procedure
59(a)(1), as BFT argues here. See Nash, supra. BFT cites the same conduct—that the circuit
court abused its discretion in granting its motion to withdraw and denying its motion for
continuance—in support of its argument that the court erred in denying its motion for new
trial. For the same reasons noted above, BFT has failed to preserve its argument. Moreover,
BFT has failed to demonstrate how the court’s actions constituted an abuse of discretion or
resulted in prejudice. BFT likewise fails to demonstrate how the court abused its discretion
in denying alternative relief pursuant to Rule 60.
Finally, BFT does not advance any argument specifically addressing why the order
granting directed verdict in the City’s favor was erroneous.1
Affirmed.
ABRAMSON and VIRDEN, JJ., agree.
Cox Law Firm, PLLC, by: S. Lance Cox, for appellant.
Kit Williams, Blake Pennington, and Hannah Hungate, for appellee.
1
For further discussion, see BFT Rental, LLC v. City of Fayetteville, 2026 Ark. App. 526 (per curiam), issued this date.
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