Israel v. Oskey

• Decision Date: 07 September 2005
• Docket Number: No. CA 05-8.,CA 05-8.
• Citation: 212 S.W.3d 45
• Parties: Roger ISRAEL, Appellant v. Christopher D. OSKEY and Lisa Oskey, Appellees.
• Court: Arkansas Court of Appeals

212 S.W.3d 45

Roger ISRAEL, Appellant v. Christopher D. OSKEY and Lisa Oskey, Appellees.

No. CA 05-8.

Court of Appeals of Arkansas, Division IV.

September 7, 2005.

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Taylor Law Firm, by: Timothy J. Myers, Fayetteville; and Roy, Lambert & Lovelace, by: James M. Roy, Jr. and James H. Bingaman, Springdale, for appellant.

The Nixon Law Firm, by: Theresa L. Pockrus, Fayetteville, for appellees.

JOHN B. ROBBINS, Judge.

Appellant Roger Israel appeals the entry of default judgment against him in a negligence action filed by appellees Christopher and Lisa Oskey in Washington County Circuit Court. In the complaint filed on April 7, 2004, Christopher alleged that he suffered personal injuries after he fell from a ladder while performing construction work on appellant's personal residence. A process server provided the summons and complaint to appellant at his residence on April 19, 2004. Though the circumstances of delivery were in dispute, both the process server and appellant agreed that hand-delivery of documents took place that day. The process server testified that she went to the door, appellant answered and affirmed his identity to her, she informed him that she was serving him with a summons and complaint, he said, "okay," and he shut the door. Appellant recalled the process server driving to his residence, he saw her car and ran to it, and he accepted what he thought was mail from her through the window of her car. Appellant did not know what happened to the documents after he accepted them, though he thought he put them in his back pocket, that he never looked at them, and that they were somehow lost. The process server filed proof of service with the circuit court on the following day, April 20, 2004, by filling in the return form on the summons that was for use when service was made by the sheriff or sheriff's deputy. The process server did not complete an affidavit of service.

After the time for filing an answer elapsed, appellees filed a motion for a default judgment on May 25, 2004. Appellant filed an answer on August 18, 2004. On August 20, 2004, appellant moved to enlarge the time within which to answer, responded to the motion for default, and moved to dismiss appellees' complaint. Appellees responded by filing a motion to strike appellant's answer on September 20, 2004. Appellant followed this with a motion to strike appellees' motion to strike his answer on October 1, 2004. The hearing on the respective requests was conducted on October 1, 2004. The trial court entered the order on appeal on November 4, 2004.

The order granted appellees' motions for a default judgment and to strike appellant's answer. In this same order, the trial court denied appellant's motion to dismiss the complaint and appellant's motion to strike the request to strike his answer. The order did not dispose of the motion to enlarge the time within which to answer the complaint. The letter opinion, incorporated into the order, stated that default judgment was granted on the issue of liability, but that appellant was entitled to a trial on the remaining issue of damages. The trial court found that there was valid service by a duly-qualified process server on April 19; that the process server erroneously used the sheriff's return instead of providing an affidavit of service on April 20; that this error did not invalidate service; that appellant admitted receipt of the documents; that there was neglect in failing to answer the complaint, but not excusable neglect; that the trial court sent two letters to appellant, dated July 9 and August 4, setting the matter for trial on October 1; and that appellant's filing of an answer on August 18 demonstrated his failure to take any of the documents seriously. Appellant filed a timely notice of appeal from the trial court's order.

On appeal, appellant argues that the trial court erred in entering a default judgment because (1) the service requirements were not strictly followed, (2) the proof of service was defective, (3) appellant demonstrated excusable neglect in failing to file a timely answer, and (4) appellant was entitled to an extension of time. Appellant also argues that the trial court erred in granting appellees' motion to strike his answer. After our appellate review of all issues, we affirm the trial court's decision in all respects.

We first note that as to the default judgment, appellees contend that we do not have a final order for purposes of appeal. The issue of jurisdiction is one that we are duty-bound to raise, even if it is not raised by the parties. See, e.g., Hyatt v. City of Bentonville, 275 Ark. 210, 628 S.W.2d 326 (1982). Appellees correctly state the general rule that a judgment or order is not final and appealable if the issue of damages remains to be decided. See U.S. Bank, N.A. v. Milburn, 352 Ark. 144, 100 S.W.3d 674 (2003); String v. Kazi, 312 Ark. 6, 846 S.W.2d 649 (1993); John Cheeseman Trucking, Inc. v. Dougan, 305 Ark. 49, 805 S.W.2d 69 (1991); Sevenprop Assoc. v. Harrison, 295 Ark. 35, 746 S.W.2d 51 (1988). In Sevenprop, our supreme court held that, in an appeal from a default judgment on liability, where there was failure to file a timely answer and the issue of damages was not yet resolved, the appeal had to be dismissed.

Nevertheless, we conclude that we have appellate jurisdiction of the present appeal because there is a single distinguishing factor-appellant's answer was struck. Under those circumstances, the Arkansas Supreme Court has held that the appeal is proper. See Arnold Fireworks Display, Inc. v. Schmidt, 307 Ark. 316, 820 S.W.2d 444 (1991). In Arnold Fireworks, the supreme court held that Arkansas Rule of Appellate Procedure—Civil 2(a)(4) provides that an appeal may be taken from an order that strikes all or part of an answer. Our supreme court declared that this specific provision in Ark. R.App. P.-Civ. 2(a)(4) controlled over the more general rule of Ark. R.App. P.-Civ. 2(a)(1), which requires a "final judgment." The supreme court held that appellate rule 2(a)(4) permitted a "piecemeal approach." Id. at 319, 820 S.W.2d 444. Therefore, we have appellate jurisdiction over the striking of the answer, which permits review of the entry of default judgment.¹

We now address appellant's arguments on appeal in the order presented by him. The thrust of his appeal is directed toward whether the trial court erred in entering default judgment. When a party against whom a judgment for affirmative relief is sought fails to plead or otherwise defend as provided by the Rules of Civil Procedure, a default judgment may be entered against him. See Ark. R. Civ. P. 55(a). Default judgments are not favorites of the law and should be avoided when possible. B & F Engineering v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992). A default judgment may be a harsh and drastic result affecting the substantial rights of the parties. CMS Jonesboro Rehabilitation Inc. v. Lamb, 306 Ark. 216, 812 S.W.2d 472 (1991); Burns v. Madden, 271 Ark. 572, 609 S.W.2d 55 (1980). Pursuant to Rule 55(c) of the Arkansas Rules of Civil Procedure, a default judgment may be set aside for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) the judgment is void; (3) fraud, misrepresentation, or other misconduct of an adverse party; or (4) any other reason justifying relief from the operation of the judgment. In cases where the appellant claims that the default judgment is void, we review a trial court's decision using a de novo standard. Nucor Corp. v. Kilman, 358 Ark. 107, 186 S.W.3d 720 (2004). In cases where an issue arises under sections (c)(1), (3), or (4) of Rule 55, we review the trial court's decision for abuse of discretion. Id.

Appellant first contends that default judgment was improper because he was not properly served with the summons and complaint. Arkansas law is long settled that service of valid process is necessary to give a court jurisdiction over a defendant. Raymond v. Raymond, 343 Ark. 480, 36 S.W.3d 733 (2001) (citing Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982)). Statutory service requirements, being in derogation of common-law rights, must be strictly construed and compliance with them must be exact. Id.; Carruth v. Design Interiors, Inc., 324 Ark. 373, 921 S.W.2d 944 (1996) (citing Wilburn v. Keenan Companies, Inc., 298 Ark. 461, 768 S.W.2d 531 (1989) and Edmonson v. Farris, 263 Ark. 505, 565 S.W.2d 617 (1978)). The same reasoning applies to service requirements imposed by court rules. Carruth v. Design Interiors, Inc., supra; Wilburn v. Keenan Companies, Inc., supra.

We hold that the trial court did not err in finding that there was valid service in this instance. Appellant agreed that he was handed some documents from a female who had driven to his residence that day. Appellant disagreed that he accepted them at the door; instead, he said he met her at the window of her car, thinking she was a mail carrier delivering regular mail. There was no dispute that the summons and complaint specifically and correctly notified appellant of all he was required to be provided under Arkansas law, and in particular Arkansas Rule of Civil Procedure 4. Appellant contends that his belief that the process server was actually a mail carrier and that she did not inform him what she was handing him invalidates the completed service. We disagree that appellant was not properly served.

By both appellant's and the process server's testimony, appellant received documents from the process server at his residence on April 19. He simply neglected to read the documents. The summons is a process used to apprise a defendant that a suit is pending against him and afford him an opportunity to be heard. See Nucor, supra. Appellant's contention that he was mistaken in his belief that he was being handed regular mail does nothing to erode the admitted fact that appellant received hand-delivery of service. See Miller...