Clark v. Michael Motor Co., Inc.
| Decision Date | 04 December 1995 |
| Docket Number | No. 95-627,95-627 |
| Court | Arkansas Supreme Court |
| Parties | Harold CLARK, d/b/a Harold Clark & Son, Appellant, v. MICHAEL MOTOR COMPANY, INC., Appellee. |
John D. Garnett, North Little Rock, for appellant.
Cary E. Young, Pine Bluff, for appellee.
Appellant Harold Clark appeals from an entry of default judgment and sanctions against him under Arkansas Civil Procedure Rule 37 for failure to respond to a court order to submit discovery requests. The trial court entered judgment against Clark for the amount prayed for in appellee Michael Motor Company, Inc.'s amended replevin complaint for conversion of an automobile, which included $1547.34 for the value of the car, $3200.00 in punitive damages, and $149.61 in costs. The trial court also imposed $896.40 in sanctions against Clark and his attorney, John D. Garnett. On appeal, Clark asserts that the trial court erred in awarding damages in a summary manner without a hearing as to damages. We affirm the entry of the default judgment and the sanctions imposed for discovery violations, but reverse and remand as to the damages awarded for conversion.
This case involves a lengthy dispute over a 1983 Oldsmobile Delta Royale. In 1991, separate defendant Robert Brown purchased the car from appellee Michael Motor Company, Inc. ("Michael Motors"), which retained a purchase money security interest in the vehicle. Brown took the car to appellant Harold Clark, d/b/a Harold Clark & Son, an auto repair shop, for repair and storage. Brown defaulted, and in late 1992, Michael Motors filed a replevin complaint against Brown and Clark. Clark answered that the car was a total loss, and that his storage lien was superior and exceeded the salvage value of the vehicle. Michael Motors amended its complaint to allege that Clark had committed conversion, and prayed for $1547.34 in damages for the value of the car as converted, and $3200.00 in punitive damages.
A summary of the relevant pleadings is as follows. On March 26, 1993, Michael Motors propounded interrogatories and a request for admissions to Clark. On June 23, 1993, the trial court permitted counsel for Clark to disqualify, and ordered Clark to obtain substitute counsel and answer the interrogatories and request for admissions within 20 days. On July 2, 1993, Clark filed a motion to substitute attorney John D. Garnett as counsel. While the record indicates that Clark filed responses to the interrogatories and request for admissions on August 6, 1993, no certificate of service is attached to either pleading. Subsequently, on September 21, 1993, the trial court entered an order for partial summary judgment against Clark on the issue of liability, while reserving the issue of the amount of damages and punitive damages. Following a January 28, 1994, hearing on Michael Motors's motion to compel Clark to answer its interrogatories, the trial court entered an order nunc pro tunc on February 15, 1994, directing that Clark had seven days from the hearing in which to supplement, without sanctions, his response to interrogatories. Approximately one year later, on February 14, 1995, the trial court entered a default judgment against Clark, and assessed sanctions "for the $4774.34 1 prayed for in the First Amended Complaint", $149.61 in costs, and $896.40 in sanctions against Clark and his attorney. Clark appeals from the order granting default judgment.
Under Ark.R.Civ.P. 8(d), averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied. See also Rice v. Kroeck, 2 Ark.App. 223, 619 S.W.2d 691 (1981). It is the law in Arkansas that a default judgment establishes liability, but not the amount of damages. Divelbliss v. Suchor, 311 Ark. 8, 841 S.W.2d 600 (1992). A defaulting defendant is entitled to a hearing to determine the amount of damages, and the plaintiff is required to introduce evidence of the damages. Id.; B & F Engineering v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992). The defendant has the right to cross-examine the plaintiff's witnesses, to introduce evidence in mitigation of damages, and to question on appeal the sufficiency of the evidence to support the amount of damages awarded. B & F Engineering v. Cotroneo, supra.
Michael Motors asserts that the trial court's award was proper under Ark.R.Civ.P. 37. The rule provides that, after a trial court issues an order to compel an answer to an interrogatory, and the party still fails to comply with the trial court's ...
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