*1 ALLEN, Lee Jeffery Administrator of the Estate of Wayne Allen, Deceased, and as Natural Guardian and Loco Allen, Allen, Parentis for Allen, Dedrick Margaret Diedra Allen, Ferbia Larry Charlotte Jones Dale KIZER, Jackson, Brad
Rommie and Haden Jones 87-208
Supreme Court of Arkansas Opinion delivered November [Rehearing January denied 1988.] *2 Brockman, Jr., Norton, Brockman & E.W. by: appellants. Cox, Lile, Gilbert, Harrelson &
Ramsey, Bridgeforth, Starling, appellees. action, Holt, Jr., Chief Justice. In this tort
Jack recuse, circuit court erred in alleges that the appellant judgment, granting appellee’s to render a default find no error in these actions motion for summary and affirm the trial court. Allen, 30, 1984, Lee adminis- Jeffery
On March appellant against trator of the estate of filed a Wayne complaint Jackson, Kizer, Brad Dale appellees, Rommie and Haden Jones (“employees”), controller, foreman, relief were the shift plant superintendent, foreman, and maintenance shift assistant plant superintendent, The estate of Planters’ Cotton Mill. employee, respectively, bare wires alleged negligent allowing were to exist in the work area of the mill. These wires came into contact cotton, with a Allen which resulted loading with hopper in his death electrocution. 10,1984,
On morning the deadline for answer to the estate’s dic- complaint, employees’ attorney tated the final draft of the answer to normal Under secretary. *3 circumstances the would have returned between 3:30 attorney and 4:00 to p.m. sign the answer and it in the hands of a place However, runner for filing. at 3:30 the approximately p.m. was in attorney met the one of his hallway by partners meet, “We need to we’ve a got One of the firm’s problem.” associates was apparently having significant professional personal problems. The and the rest of the attorney in partners the firm met to discuss the matter for a of hours. As a result couple distraction, of this the failed to attorney file the answer when due. 11, On 1984, May the estate filed a motion for default judgment, and the filed a employees belated answer and a motion to extend the time in which 21,1984, to file an answer. On August the circuit judge denied the motion for default granted the motion for extension of time that the attor- stating ney’s failure to filewas the result of neglect excusable or other just cause. He circumstances, concluded that the the of complexity case, the and the heavy legal of responsibilities the in this case and others constituted neglect excusable or other cause. just
On December the filed a motion for employees summary judgment alleging to a safe duty provide to work is a nondelegable of an duty and that the employer Arkansas Worker’s Compensation Act the exclusive provides for remedy the estate. The trial granted court this motion. From the various recusal, findings orders as to default judgment, and summary judgment, the estate appeals.
The estate first contends that the trial should have judge recused. The state in its affidavit stated that the commented judge 11, 1984,
on at a May hearing on the motion default taken, judgment, before that if testimony the were answer, one only day filing late in their he would allow them to file their answer and would deny motion default On 30,1984, recuse, the estate asked the to he refused judge but stating that the affidavit was not as he correct to what had said. However, he did state that inclination would be “my probably late, that if the answer was filed one leanings day my probably would be-toward allowing the It any answer. certainly was not a prejudgment.”
The argues estate that statements trial judge amount to an obvious objective demonstration prejudice in violation of 3(C) Canon of the Code of Conduct. Judicial disagree. Canon 3(C) requires a himself judge in a disqualify proceeding which his might be impartiality reasonably ques tioned. “The have, fact a judge or may develop during trial, an opinion a bias or does not make the prejudice trial judge so biased and as to prejudiced require his disqualification Matthews further proceedings.” Rodgers, Ark. S.W.2d “Whether a has judge become biased to the point that he should is disqualify himself a matter confined to the conscience of Id. The circuit judge.” judge court merely indicated his opinion regarding the application of law pending full hearing. This did not opinion make biased judge so as to *4 require disqualification.
The estate also contends that circuit the court erred in finding that the attorney’s failure to file a answer was due timely to excusable neglect or other just cause. Ark. Civ. P. 6(b) provides the following:
Enlargement: When by these Rules or notice given aby thereunder by or order of court an act required is or allowed time, to be at done or within a specified the Court for cause shown atmay time in its any (1) discretion with or notice, without or motion the order period enlarged if therefor is made the request before of the expiration period originally prescribed order, or as extended by or previous (2) upon motion made after the the expiration specified period permit the act to be where done the failure to act was the result of excusable neglect, unavoidable or casualty
5 cause, taking for other but it not extend the time just may (e) (b), (b), (b), (d) an action under Rules (b), to the extent and under the conditions stated except in them. Tribble,
In DeClerk answer, it in a the but he attorney prepared put result, where it it was not was covered other and as a papers, discovered until four due We that the trial after its date. held days judge abused his in condoning negligence by discretion such refusing to a default “If such grant excusable, carelessness is then can shift the any attorney respon- sibility to his filing any pleading secretary by dictating simply the from his mind.” pleading dismissing pleading
We see no basic difference in case. If DeClerk and this believed attorney that the with the associate was of problem attention, such that it demanded he importance his full could have delegated to another responsibility attorney firm, who would have understood the of a necessity timely Instead, filing. he failed to take the matter. merely any action on The fact that the answer was filed one late is no only day consequence whatsoever.
We state without reservation that for the late responsible filing failed to show excusable neglect, unavoidable casualty, other cause. Accordingly, we conclude that the trial court erred in finding attorney’s and, thus, conduct was excusable in allowing the answer to be filed.
Even though inexcusable, the attorney’s conduct is it does not follow automatically that the circuit court erred in render a default judgment. “The rendition of a default upon which fails to state facts sufficient to complaint state a cause of action is reversible v. Dildy, error.” Thompson see (1957); also Kohlenberger v. *5 Foods, Inc., 584, 510 Tyson’s S.W.2d 555 If the (1974). estate’s complaint which is before us does not state facts sufficient action, to state a cause of trial court did not err in to render a default or in granting the motion employees’ for summary judgment. Cardin,
We denied
in
immunity
tort
King v.
929,
Recently, Simmons First Nat’l Bank Thompson, Ark. we held that supervisory employees are immune suit from in to negligence failing provide a safe to See Fore place work. v. Circuit Court Izard Ark. County, 292 In Simmons we “Since is immune under the Worker’s employer statutes Compensation from suit for a failure to negligent provide work, a safe to place same should immunity protect supervi- sory when their employees general overseeing duties involve and discharging that same responsibility.” Fore,
Based our upon holdings in we Simmons conclude that as well as supervisory non-supervisory are immune from negligence suit for to failing a safe provide Kizer, mill, place to work. Dale controller of the plant superintendent, Rommie plant assistant superin tendent, foreman, relief shift were clearly acting as of the at the supervisory employees mill time of the accident. are They immune under our holdings Simmons and Fore. Jones, mill,
Haden a maintenance employee not a acting as employee but as a supervisory simply fellow of Allen. employee One of his duties as a maintenance employee was to check repair the electrical in the equipment plant. assuming Even that he was negligent in the maintenance of the bare wires that caused the death electrocution of he is immune from suit because to or check for bare wires repair involves failure a safe No provide to work. place negligence apart from the failure safe to work is provide alleged.
We find that the estate has failed to a cause state of action *6 trial from suit. The mill immune since the are and in default judgment court was to render a correct the motion for granting summary
Affirmed.
Hays, J., concurs. Justice, While I concur in the concurring. Hays,
Steele agree affirmance I do not that the trial court’s discretion the time abused under the circumstances of the case. Well within for the called response appellees appellants’ counsel to ask for an extension of time in which to plead, common It was and an order was entered practice. agreed the time to extending 1984. On the morning May counsel for called appellees counsel to opposing explain answer had been but had not prepared afternoon previous been filed due to the events outlined in the majority opinion. Counsel for neither nor appellant agreed objected to the late back, but said he would consider the matter and call which he did. In this conversation it was arranged that motion would appellees’ presented the trial court at 1:30 6(b) gives ARCP Rule p.m. the trial court the discretion to grant a motion made after the expiration specified period an act to be done permit where the failure is the result of excusable neglect, unavoidable or other cause. casualty
The majority opinion regards this case as indistinguishable Tribble, from DeClerk v. 276 Ark.
But the problem there was neglect, extending pure simple, over here, four days rather than And overnight. there were mitigating circumstances which the trial court found to justify the brief default. The case more nearly resembles Cammack Chalmers, 161, 680 S.W.2d (1984), where we held the trial court’s discretion was not abused. Burns v. Citing Club, Shamrock we said: It is within the sound grant discretion of the trial court to a motion to set aside deny a default and the judgment, on question is whether there has been an abuse of appeal that discretion. are not judgments Default favorites of the law (citations and should be avoided when possible, omitted). (My emphasis).
Furthermore, ARCP Rule 55 that a default provides judgment should be entered when a “fails to party appear Here, or otherwise defend.” *7 when defended appellees filed they their motion to This holding dismiss. is also consistent with Ark. Stat. Ann. 27-1160 1979) (Repl. § that, which provides every “The court must in of an stage action, disregard any error or proceedings defect which does not affect the substantial rights adverse and no party; judgment shall be reversed or affected by reason of such error or defect.” There was no prejudice these appellants by appellees’ their delay answer.
Under the circumstances in their I cannot conclude entirety, the trial court’s discretion was abused in refusing to enter a default judgment in this case.
Joan ESTATE Eugene EDDLEMAN OF Barney FARMER, Deceased 87-275
Supreme Court of Arkansas delivered Opinion November