2021 Ark. App. 94
Ark. Ct. App.2021Background
- On August 21, 2019 the circuit court entered a default judgment against Ascentium Capital, LLC for $600,185.
- John Bolton was a named but unserved codefendant; the circuit court dismissed Bolton in December 2019.
- Ascentium filed its sole notice of appeal within 30 days of the December dismissal, but not within 30 days of the August default judgment.
- Arkansas Rule of Civil Procedure 54(b)(5) operates to dismiss claims against named but unserved defendants when a final adjudication is entered, making the August default judgment final and appealable.
- Ascentium filed a Rule 55(c) motion to set aside the default judgment in January 2020; that motion has not been adjudicated.
- The court dismissed the appeal for lack of jurisdiction as untimely and explained the Rule 55(c) motion was unadjudicated (so the merits review was premature); the court gave no opinion on the motion’s merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Finality/timeliness of appeal under Rule 54(b)(5) | The August default judgment was final by operation of Rule 54(b)(5); Ascentium’s notice of appeal was untimely. | The December 2019 dismissal of Bolton made that order the final appealable decision, so Ascentium’s appeal was timely. | The August default judgment was the final, appealable order by operation of Rule 54(b)(5); the appeal was untimely and dismissed. |
| Effect of Ascentium’s Rule 55(c) motion to set aside | The unadjudicated motion means appellate review of the default is premature. | Ascentium argued the motion warranted vacatur and should affect the appeal (or be deemed denied). | The Rule 55(c) motion was not decided; it was not within 10 days so the "deemed denied" rule did not apply; appellate review of the motion’s merits is premature. |
Key Cases Cited
- S. Dev. Corp. v. Freightliner of New Hampshire, Inc., 307 S.W.3d 597 (Ark. App. 2009) (Rule 54(b)(5) operates to dismiss claims against named but unserved defendants and cures related jurisdictional defects)
- Epting v. Precision Paint & Glass, Inc., 110 S.W.3d 747 (Ark. 2003) (no filing deadline exists for a Rule 55(c) motion to set aside a default judgment)
- Sevenprop Assocs. v. Harrison, 746 S.W.2d 51 (Ark. 1988) (default judgment is appealable when damages are determined and amount is reduced to dollars and cents)