Case: The Entertainer, Inc. v. Duffy, 2012 Ark. 202, decided on May 10, 2012.

Main Issue

Under what circumstances may a defendant get a default judgment set aside when the default is allegedly the result of the defendant being abandoned by his attorney?

Background

This case originated as a personal injury action brought by Cory Duffy, the patron of a drinking establishment operated by The Entertainer, Inc. (“TEI”) and Charles Wells. Duffy sought damages against TEI and Wells after he was shot twice while waiting outside the business for a taxi.

Duffy filed his suit on November 30, 2009. Over the next 13 months, both defendants ended up in default.

Wells was served on December 19, 2009. No response was filed. On February 1, 2010, default judgment was entered against him. Later that same day, attorney J.L. Wilson filed an answer for both defendants.

Wilson never filed a motion to set aside Wells’s default judgment.

In August 2010, TEI was served with discovery requests. No response was forthcoming. Duffy’s motion to compel was granted, but TEI did not respond to the order to respond to the discovery.

Duffy sought sanctions, and TEI again did not respond.

In January 2011, the trial court ordered sanctions against TEI, struck TEI’s answer, and entered default judgment against the corporation.

Wilson never filed a motion to set aside TEI’s default judgment.

On April 1, 2011, a damages hearing was held. Both defendants had been given notice, but neither appeared. The trial court awarded $520,000 in compensatory damages and $1,560,000 in punitive damages.

Ten days later, new counsel entered an appearance for the defendants and filed a motion for new trial per Rule 59(a) of the Arkansas Rules of Civil Procedure.

On May 11, 2011, the motion was deemed denied. This appeal followed.

Defendants’ Argument on Appeal

On appeal, the defendants argued that their Rule 59(a) motion for new trial should have been granted because their substantial rights were impaired since they were abandoned by their attorney.

Citing Jones-Blair Co. v. Hammett, 326 Ark. 74, 930 S.W.2d 335 (1996), they argued that a new trial should have been granted since their attorney abandoned them and did not comply with the attorney withdrawal procedure of Rule 64(b).

Decision

The supreme court disagreed.

The court noted that:

“[A] client is generally bound by the acts of his counsel and cannot avoid the consequences of his attorney’s neglect or omissions.”

The court further determined that defendants’ situation was different from the client’s in Jones-Blair in a critical respect. In Jones-Blair, the appellant was diligent. At the hearing on its motion to have a judgment set aside after an attorney abandonment, the Jones-Blair appellant had promptly petitioned to have the judgment set aside, and it presented evidence to establish that it had stayed in communication with its attorney.

By contrast, in the present case, the defendants presented no evidence that they kept in contact with their attorney or attempted to keep abreast of the proceedings.

As such, the trial court did not abuse its discretion in not granting the new trial. Judgment affirmed.

Arkansas Judiciary link (pdf).

The defendant physician brought this appeal from an unfavorable jury verdict. The plaintiff is a former patient claiming medical negligence.

One of the defendant’s arguments was that the trial court improperly permitted the jury to view a plaintiff’s expert deposition during deliberations. The expert was a physician who treated the plaintiff after the alleged negligence.

During deliberations, the jury requested to see the expert’s deposition transcript. The trial court denied the request because the transcript was not an exhibit. The court said the jurors should rely on their memories and notes regarding the expert’s testimony, but if desired, they could view the video deposition again. The jury chose to see the deposition again.

Defense counsel objected arguing that the replaying would give undue emphasis on that testimony. He also argued that the requirement of Ark. Code Ann. § 16-64-115 that there first be a “disagreement” among the jurors had not been met. (Section 16-64-115 states: “After the jury has retired for deliberation, if there is a disagreement between them as to any part of the testimony or if they desire to be informed as to any point of law arising in the case, they may request the officer to conduct them into court, where the information required shall be given in the presence of, or after notice to, the parties or their counsel.” [Bold added.])

The court of appeals disagreed. It held that permitting the second deposition viewing was not an abuse of discretion. The appellate court stated that when a jury requests to see certain evidence again, it is “a clear sign that the evidence sought is important to the deliberative process.” In such a situation, the trial court should permit the evidence to be viewed again, and it is permissible for the trial court to infer the existence of the required “disagreement.”

Arkansas Judiciary link (pdf).

Following a hearing, the district court awarded the homeowner $5,000.00 plus costs. The judgment was entered on April 17, 2009.

For his appeal of the district court judgment, the contractor on April 16, 2009 filed his notice of appeal and a certified copy of the hearing transcript. The contractor did not file his circuit court complaint until the circuit court’s August 28, 2009 order granting his request to proceed in forma pauperis.

The homeowner then filed a motion to dismiss because the contractor did not comply with the District Court Rule 9 requirement that a complaint be filed within 30 days the district court appeal.

The circuit court did not grant the homeowner’s motion to dismiss. Instead, the circuit court granted a request by the contractor for voluntary dismissal (nonsuit).

On appeal, the Supreme Court of Arkansas held that the contractor’s appeal to circuit court had never been perfected. Rule 9 of the Arkansas District Court Rules states that a party attempting to appeal to circuit court must file “a certified copy of the district court’s docket sheet.”

In this case, the contractor filed a notice of appeal and a certified copy of the district court hearing, but did not file a certified copy of the docket sheet. As such, the appeal to circuit court was not perfected, and the circuit court never acquired jurisdiction.

Since the circuit court lacked jurisdiction, the supreme court also lacked jurisdiction. The appeal was dismissed.

Arkansas Judiciary link (pdf).

It also discusses what to expect if chosen to participate in a jury trial.

Here are some of the topics covered in the Guide:

• Jury Selection
• Trial Procedure (including the order of each stage of the trial)
• What Is Evidence
• Conduct in the Jury Room

It also has a FAQ section addressing questions such as whether juror note-taking is permitted (it is) and whether jurors can bring cell phones to court (usually not).

Link.

[04-14-2013: Link updated]

[Links updated 2013-01-23]

The circuit court denied the debtor’s motion to set aside. The debtor appealed, and the case was certified to the Arkansas Supreme Court.

Rule 4(b) provides the following requirements for a valid summons:

The summons shall be styled in the name of the court and shall be dated and signed by the clerk; be under the seal of the court; contain the names of the parties; be directed to the defendant; state the name and address of the plaintiff’s attorney, if any, otherwise the address of the plaintiff; and the time within which these rules require the defendant to appear, file a pleading, and defend and shall notify him that in case of his failure to do so, judgment by default may be entered against him for the relief demanded in the complaint.

The issue here is whether the requirement of a valid clerk’s signature was met.

The summons served on the debtor had typewritten on it: “SCOTT PRICE, PULASKI COUNTY CIRCUIT CLERK.” The name “SCOTT PRICE” had been marked out, and “Pat O’Brien” was written in by hand. There was a blank line for a “DEPUTY CLERK” signature that was not written on. The Seal of the Pulaski County Circuit Clerk appeared to the left of the signature line.

In support of its argument that the Summons was invalid, the debtor presented an affidavit from Pat O’Brien, the Pulaski County Circuit Clerk. Mr. O’Brien attested that his handwriting was not on the Summons. Moreover, he said the procedures in the clerk’s office required that any deputy clerk signing his name must sign it: “Pat O’Brien, by (their name).” That was not done on this Summons.

The supreme court rejected the debtor’s argument that the Summons was invalid. The supreme court noted the general rule that when the circuit clerk seal is present on an official document, a presumption arises that the accompanying signature is valid.

Thus, in this case, the affidavit at most established that office procedure was not followed. It did not establish that it was not signed by a deputy clerk, and it did not rebut the presumption of the signature’s validity when accompanied by the official seal.

As such, the motion to set aside the default judgment was properly denied. The circuit court’s order was affirmed.

Arkansas Judiciary link (pdf).

[Updated 2012-09-24, link corrected.]