McGraw v. Jones

and that camera was concealed in women’s restroom operable of its existence. the defendants knew an Like Preston has evidence that presented oper- Johnson, knew of its able camera was installed and that CCS addition, existence. when and its Preston has shown that CCS questioned, and mendacious in their statements con- were evasive employees Furthermore, removed the the camera’s existence. CCS cerning camera as the occurrence of prior any possible investigation sum, actual there is circumstantial evidence that recording. that Preston was filmed could rise to a reasonable inference give such, the incorrect whilst in a state of undress. As majority the role of the and decide this issue as a matter of law. usurp jury reasons, For the dissent. I also foregoing join respectfully dissent handed down Glaze. by Justice J., joins

Glaze, in this dissent.

Dr. Lisa McGRAW Scott W. and Lizabeth Husband and Wife Jones, JONES 06-48 Court of Arkansas

Supreme 29, 2006 delivered Opinion June denied [Rehearing September 7, 2006.*] * Hannah, C.J., Gunter,JJ., grant rehearing. and Corbin and would Mitchell, Williams, P.L.L.C., Gates & L. Woodyard, Selig, by: Lewis, and Tamla for KyleHeffiley appellant. J. P.A., Karr, Karr,

Law Charles Charles for by: appellees. Officesof This caseis an appeal Annabelle Clinton Justice. Imber, from a default in a case. medical-malpractice McGraw, Dr. Lisa a doctor with Health Appellant, Mercy Systems Arkansas, Northwest was one of three named defendants in a medical- case filed Scott and Lizabeth malpractice by Appellees, Appel Jones. lant was with served on December properly 2004. process Upon summons, receiving the documents complaint Appellant gave staff,who, turn, to her office them in mail placed interdepartmental to the in-house Heather to Ms. attorney, Lipke. According Lipke’s affidavit, the documents never reached her. never filed an Appellant answer or other responsive pleading. 22, 2005,

On March filed a motion for default Appellees 23, 2005, judgment On March against circuit court Appellant. entered a default and a dismissal judgment against Appellant without as to the defendants. The prejudice court remaining 18, 2005, scheduled a for the hearing of deter- April purpose the amount of mining sustained At by Appellees. hearing, evidence on their actual Appellees presented $43,000 around totaling future past suffering. The circuit Thereafter, court awarded in damages. 17, 2005, was served awith writ of Appellant garnishment May 2, 2005, and on she filed a motion to set aside default June The motion, circuit court held a judgment. and denied the as well as motion to Appellant’s or amend its subsequent clarify order, on October 2005. then prior filed a notice of on October 2005. As the appeal involves the appeal interpre- tation and constitutional of Ark. R. P. Civ. we have challenge to Ark. jurisdiction Ct. R. pursuant Sup. l-2(b)(6) (2005).

I. ExcusableNeglect first that the circuit argues erred failing set aside the default because judgment failure to file an Appellant’s answer was the result of excusable under Ark R. Civ. P. neglect 55(c) (2005). Ark. R. Civ. P. 55 in relevant provides part: for whom against judgment When Entitled. When

(a) party defend as has failed to or otherwise plead affirmative relief is sought rules, be entered by default by may these by judgment provided court. entitled to a judgment The EnteringJudgment. party Manner (b) therefor, no by to the court judgment default shall

by apply If entered an infant or against incompetent person. default shall be default is has sought appeared whom judgment party action, his (or by representative, representa- he appearing notice of the for be served with written tive) application shall If, on such at least 3 daysprior application. judgment it into to enter or to judgment carry in order to enable the court effect, take an account or to determine the amount it is necessary the truth of averment evidence or any or to establish matter, the court conduct to make an other investigation any may direct a trial such as it deems necessary proper hearings by jury. motion, The court may, upon Aside (c) Setting Judgments. Default the following

set aside a default entered for judgment previously mistake, inadvertence, or excusable (1) neglect; reasons: surprise, void; (3) (whether is fraud heretofore denomi- (2) judgment extrinsic), nated intrinsic or or other misconduct misrepresentation, other relief from the (4) of an adverse reason party; any justifying to have the seeking of the operation judgment. party judg- ment set aside must demonstrate a meritorious defense to the however, void, action; if the no other defense to need be action shown. that defaults are

Ark. R. Civ. P. We have 55(a)-(c) (2005). recognized the law and that a default be a harsh and not favored in judgment may drastic result the substantial of a CMS rights affecting party. Jonesboro Lamb, 216, Rehab., Inc. v. 306 Ark. 812 S.W.2d 472 Notwith- (1991). we have declined to set aside default where the standing, judgments House, or mistake is inexcusable. Volunteer Inc. v. neglect Transp., 95,162 Canvas, Ark. S.W.3d 456 Inc. (2004); Maple Rogers, Leaf 171, Ark. The which we review 842 S.W.2d standard (1992). of a default and the denial of a motion to set judgment granting the circuit abused its aside the default is whether judgment House, discretion. Volunteer Inc. v. Transp., supra. relief that she

In this offers as for grounds followed Mercy’s handling complaint. Specifically, policy after the summons and she turned the receiving complaint, papers

over to the senior office administrator “who assured her the matter turn, would be taken care of.” In the administrator attempted ensure that the lawsuit were forwarded to in-house papers Mercy’s unknown, but for reasons never reached the attorney, papers submits that her actions in on the attorney. Appellant relying staff, assurances the office were not inexcus- though neglectful, able As for that she neglect. this proposition, suggests Inc., case is similar to Hubbard v. Shores 313 Ark. Group, S.W.2d 924 where we (1993), affirmed the trial court’s holding that the defendant’s failure to answer the summons constituted However, excusable the facts in Hubbard neglect. are markedly different from those in the instant case. Hubbard, filed suit plaintiff Mid-Arkansas against

Tom’s, Inc., Service, The Shores and 1st Inc. Group, Service of on Mid-Arkansas Tom’s was had process its by serving president, Wardlaw. Jerry Wardlaw testified that five before days being served, he learned that his wife of had breast twenty-seven years cancer that would and extensive require surgery post-surgical Furthermore, served, treatment. on the he was his bank called day to inform him of an overdraft and he discovered that an employee had stolen he testified deposits. Finally, style was “Harold Hubbard v. The complaint Shores Inc.” Group, and that he did not realize Mid-Arkansas Tom’s was also included in the suit. Mid-Arkansas Tom’s failed to answer the complaint, and a default later, entered it. A month Mid-Arkansas Tom’s filed a motion to set aside the default which the court judgment, On we granted. affirmed the appeal, circuit court’s decision to set aside the default judgment, holding, “It is hard to a more set of imagine facts than those compelling case for a of excusable case, Id. at finding 855 S.W.2d neglect.” at 927. the instant has demonstrated no extenu- circumstances ating to the level of the facts in rising Hubbard. in Hubbardwe Additionally, reviewed the circuit court’s finding discretion; excusable for an abuse of neglect here we must review the circuit court’s of inexcusable finding for an abuse of neglect discretion.

Moreover, we have held that failure to attend to business House, excusable Volunteer neglect. Inc. Transp., 162 S.W.3d 456 Canvas, Inc. v. Maple Rogers, Leaf 171, 842 S.W.2d 22 (1992); Rehabilitation, CMS Inc. v. Jonesboro Lamb, 306 (1991). facts in CMS Rehabilitation, Lamb, Inc. v. where this rejected Jonesboro lawsuit would be on outside assurances notion that relying avoid a default action to constitute sufficient handled should the instant case. from are almost indistinguishable judgment, carrier about CMS, its insurance contacted the defendant CMS insurance behalf of CMS. The company an action on defending advised CMS to contact then reneged initially agreed, contractor, at 475. did. Id. at 812 S.W.2d which CMS general The defense, but no to assume the contractor general agreed that, a a half months after ever mounted. Four and defense was CMS, and another four and was entered default to set aside the before CMS moved judg- a half months elapsed the circuit court’s Id. at S.W.2d at 473. ment. affirming excusable we that the actions did not constitute neglect, finding said wasindeed did to assurethat the contractor general

CMS nothing the date it. And and one-halfmonths did from pass four defending defaultjudgment to the date of of a entry of filing complaint did not monitor the which time CMS during apparently in this More was of CMS than wasshown case. required the trial ruling. that formedthe basisfor court’s Id. at 812 S.W.2d at 476.

These same to instant case. arguments apply ensure that a defense was mounted did being nothing Appellant Indeed, did not in-house she behalf by Mercy’s attorney. received the even follow to make sure that the attorney papers. up received the three months between the date Over passed the date the court entered the default summons and complaint Yet, time, she did during nothing judgment. period CMS, the status of the suit. as in the case of more about inquire Just shown, than was and her failures do not required Appellant Lamb, Rehab., Inc. v. amount to excusable CMS neglect. Jonesboro Bank, see also v. Helena Nat’l Sun Gas Co. Liquids supra; where (no excusable (1982) neglect secretary notice averred that she had mailed garnishee garnishment later that it never home office in and was told Pennsylvania only arrived).

Further, fact that have offered a sufficient to defense to the claim is not meritorious underlying the default While it is true that aside judgment. support setting demon- to set aside default must defendants judgments wishing action, strate a meritorious defense to the the defense in and of itself is not sufficient without first one of the establishing grounds laid out in Collums, Ark. R. Civ. P. 55(c). Southern Transit Co. v. Smith, 333 Ark. v. Tharp 260, 930 S.W.2d (1996). sets forth argument, Appellant in detail the “meritorious defense” that could have been presented at trial and that it would be unfair to suggests allow the judgment to against stand. While these Appellant be true and arguments may the default unfair, judgment seem Appellant may need not be set aside judgment absent a of some Rule showing 55(c) Our court elaborated ground. Smith, on idea in Tharp supra: appellantargues “reason” to set asidethejudgment is

becausehe hasa meritorious defenseand a miscarriage justice will result if he is not allowed to it. This present argument clearly circumvents the Moreover, dual requirements 55(c). of Rule it ignores the factthat the cogent reason was not Appellant allowedto a defensein the first present isbecause place of his own unexcusable default. [sic]

Id. at 930 S.W.2d at 353. even Similarly, the default though unfair, judgment instant case seem it cannot be set aside absent a of one of the showing 55(c) As grounds. failed to Appellant demonstrate that her failure to answer the summons was excusable she was not neglect, entitled to have the default set aside. Thus, we affirm the circuit court on this point.

II. on Hearing Damages second Appellant’s for reversal argument is that circuit court erred in to notice of the failing provide or, to alternative, Appellant to failing grant new damages. Though Appellant recognizes notice, “Rule 55 is silent as to what any, defendant defaulting is due with to a respect damages hearing,” nonetheless maintains that the circuit court should have notice of the provided assertion, of this hearing. offers cases holding that a defendant in a case has the default-judgment right cross-examine witnesses, to introduce plaintiffs evidence in mitigation and to of the challenge sufficiency See, evidence on Co., Clark v. Michael appeal. e.g., Motor Cotroneo, B&F Inc. 910 S.W.2d 697 (1995); Eng’g, cases do allow While these (1992). S.W.2d 835 make at the they evidence damages hearing, defendant present to notice of the defendant’s right no statement regarding have the that because defendants right hearing. Appellant suggests evidence, they cross-examine witnesses present mitigating such an to notice of the hearing; assump- must also have the right the however, could have tion, true. A defendant is not necessarily he or at the she is introduce evidence hearing present, to right Indeed, we have the notice of the not have to hearing. but right amount to determine the held although hearing required that notice of Rule does not subsection 55 (b) require of damages, defendant who has not be to of the hearing defaulting given Suchor, 8, 841 Smith, v. v. Divelbliss Tharp supra; appeared. in as follows: The court Divelbliss S.W.2d 600 (1992). explained the of the be to hearing Some notice jurisdictionsrequire given the even has never appeared, defendant when he defaulting rule, 55(b), not that notice be require Arkansas does A.R.C.P. the to a defendantwho has not appeared. Perhaps given defaulting servea who reasonisthat it would be to defendant superfluous again an to one notice but failed on basis already ongoing received respond. 16, at the Suchor,

Divelblissv. Ark. at S.W.2d 604. 311 841 2005, on did not on damages hearing April 2,2005, case filed make her first in the until when she appearance June Thus, to set default we conclude that her motion aside the judgment. the the circuit court did not err in notice of give Appellant failing or, alternative, a new on in failing hearing grant on hearing damages. 55

III. Rule and Due Process For on her appeal, penultimate argument declare P. us to Ark. R. Civ. 55 unconstitutional for failing asks of construe rules notice We damages. require are the same canons of construction as used to construe using LoisLaw.com, 183 statutes. Ark. JurisDictionUSA. cites S.W.3d (2004). support argument, Appellant be cases that due that a numerous holding process requires person for a before notice a reasonable given opportunity However, as noted our court being deprived property. Divelbliss,defendants from default have been suffering judgments notice of the suit service of the given pending through original Suchor, and summons. Divelblissv. 311 Ark. at complaint Further, at 600. such defendants are to know presumed that if do will default suffer they they respond, judgments Thus, suffer a them. monetary against require- of due ments are met and Rule 55 is not unconstitutional. process

IV Evidenceon Sufficiency Damages final is to the the evi challenge Appellant’s sufficiency dence civil cases where the trial rather than judge, fact, sits as the trier of correct standard of review on jury, is not whether there is substantial evidence to appeal any court, of the but whether the are finding judge’s findings erroneous or of the clearly clearly preponderance Burris, evidence. Schueck 957 S.W.2d 702 (1997). At the the circuit court received evidence hearing, solely from with each to the Appellees testifying sustained Mr. as a result of a embolism he pulmonary Jones suffered. introduced medical statements and total bills Appellees $37,644, $714, in the bills amount of and lost ing prescription $6,673. both Mr. and wages Mrs. totaling Additionally, Jones testified to the and extensive Mr. pain suffering experienced by He that testified he could no the do same activities he longer Jones. had been able to do before the embolism. Counsel for Appellees that the actual argued though out-of-pocket expenses only $43,000, amounted to the “more ele approximately significant ments of are the and that he went damage pain suffering through the and mental he anguish had and continues to have.” The circuit $500,000 court awarded in ultimately $500,000 Appellant argues was arbitrary and not sufficient evidence. notes that the supported mental testified to Mr. anguish largely speculative, Jones fear and of overexertion to including more, Further- damage organs. to the lack complete points expert testimony on the issue of future and or pain suffering permanent disability. that is not in all cases Appellees respond expert testimony required and that the circuit court’s award was not an abuse of discretion. case,

In this evidence of actual out-of- Appellees presented the $43,000, in amount of pocket the expenses approximately $500,000 circuit court awarded in the court damages. Presumably, $450,000 awarded over for and future and pain, suffering, past and and suffering perma- Evidence of future pain mental anguish. and be with reasonable certainty must established nent disability Volunteer conjecture. Transp., not to must be left speculation up In Volunteer House, at 162 S.W.3d at 461. Inc. where the only reversed an award our Transport, extent, nature, the permanency evidence offered to prove Id. at self-serving testimony. was his own hearsay injury appellee’s case, in instant at 460. Similarly, Appellees than their own self-serving evidence other did offer any extent, nature, of their testimony permanency prove noted, in also “Further- The court VolunteerTransport injuries. more, how the trial court arrived at the record is silent as to Id. at S.W.3d at 461. Similarly, amounts.” damage court arrived at instant it the circuit appears of counsel for at the Appellees. suggestion figure merely for occurred between counsel following Appellees colloquy the court at the hearing damages: ... I think this situation So Counsel: that follow are anguish quite suffering mental me to a don’t know want you give you significant. number for or if want decide we’re asking you finder, I are the fact since guess, yourself you number, we’ll If want give situation. number, you you it to or we can leave discretion. your Well, I’m not tell [counsel], going you The Court: You make how to case. try your may any argument you want to. moment, have If I Honor. your

Counsel: Okay. Sure. The Court: off the discussion was had record.]

[A Honor, I and Your as discussing, pain Counsel: are the mental anguish big- suffering probably here, elements and when combine those with gest the you evidence, into I that we’ve put special this would include not his would think —and only but Mrs. loss of and mental suffering anguish Jones’ consortium, I but a total award damage in think this case would be fair and reasonable. In light ordeal a of his this we believe that’s fair through judg- ment.

The Court: All Court will be in recess. right. Honor, Your I don’t if know this needs to be Counsel: record, I on the but did want you prepare precedent at it. look take Court: Ok. I’ll it. recess was [A had.]

The Court: Mr. Mrs. I’m Jones, grant you going defendant, McGraw, Dr. Lisa judgment against $500,000.

amount here [Counsel], is your judg- ment.

The above no as to how colloquy provides insight $500,000, counsel the court arrived at the over figure figure ten times the amount actual medical Appellees’ out-of-pocket Therefore, record, bills and lost based on this wages. we must hold that such an award is and not sufficient arbitrary supported by evidence. We reverse and remand this for a matter new damages.

Affirmed in reversed and remanded in part; part. Glaze, J., concurring. C.J.,

Hannah, Corbin, Gunter, JJ., concurring part; dissenting part.

Tom Glaze, Justice, will concurring. Although recovery not be denied because the amount of merely determine, hard to must not be left to speculation Club, Inc., Vowellv. conjecture. Comm. Bay Fairfield Inc., S.W.3d 324 Plus, Dawson v. Temps with the (1999). agree that this case majority opinion must be remanded for new It is well settled that the mere fact that a incurred has medical and the plaintiff expenses defendant’s has been established does not liability trans- automatically

149 Barbera, v. See to those Young into a award expenses. late damage equal 120, (2006) J., Depew (Glaze, dissenting)1; Ark. 233 S.W.3d 651 366 awarded S.W.2d 177 (1997). damages 330 Ark. Jackson, on actual evidence less. For assuming put could be example, plaintiff fact-finder, court, $500,000 the as trial sitting he had in damages, that less, $500,000, as the award of damages or even so award long could unreason Fiere, of awarded was the amount damages reasonable. the at able, and introduced the scant evidence testimony given at that was introduced on No proof award, the sug other than attorney’s the Joneses’ and reasonable.” As the such amount would be “fair that an gestion estab notes, must be of future suffering evidence majority left and must not be with reasonable certainty speculation lished of the fact-finder. See VolunteerTransport, the conjecture part House, 95, 103, 162 (2004). Inc. v. was nor neither other objective lay testimony expert testimony to the trial the to corroborate the claims offered presented Joneses at the as to the trial court arrived the record is silent how court. Where and the was the situation in both this case amount of as damages, case, award of amount the an unreasonably large VolunteerTransport must be reversed. in dissent Donald L. Justice, concurring part Corbin, the While with ing agree majority opinion part. case, I the the a default instant grant affirming awarded dissent the reversal with regard respectfully It is an the trial court. well settled when reviewing allegation excessive, all reviews the award was this court proof determines most to the reasonable inferences favorably appellees as to the conscience of this court whether the verdict is so shock great trier of fact. See or demonstrate passion prejudice part Knoedl, Collins Houston v. 947 S.W.2d case, Hinton, the instant (1997). Young arising claimed In the medical from expenses chiropractic plaintiff ofinjuries fight with a The trial court treatments she incurred as a result sustained in a friend. award entitled to recover the but did not agreed expenses, plaintiff chiropractic the nature questioning because, after about the full amount plaintiff plaintiff requested, injuries, of her court found the and her were and extent entirely plaintiff chiropractor credible.

150 however, the the evidence majority completely presented ignores that the awarded the trial court. Appellees supports damages award, the the relies on reversing majority House, 95, Volunteer v. Ark. Inc. 162 S.W.3d 456 Transport, for the (2004), of the is proposition testimony appellee insufficient evidence to In that award. however, we also out that the of an pointed testimony injured alone, cases, in some can a sufficient party foundation for provide Id.; the introduction of medical incurred. also see expenses Eggleston Ellis, 724 S.W.2d 462 Bell v. (1987); Stafford, Ark. this court has (1984). Clearly, heretofore established a rule that the bright-line of the testimony evidence, alone is insufficient and injured I think this party case is of how such can suffice. perfect example testimony theAt Mr. testified about his ankle damages hearing, Jones and the in his calf. surgery He that subsequent pain explained Coker, because that he saw Dr. pain, his initially who surgeon, referred him to a Dr. The radiologist, did a Pope. radiologist scan of the and determined that Mr. had Doppler leg blood Jones Coker, clot. The then sent Mr. back radiologist to Dr. Jones Dr. Coker referred Mr. to his family doctor. Because his Jones town, doctor was out of Mr. family scheduled an ultimately Jones with Dr. McGraw. appointment Dr. McGraw examined Mr. and told that he leg him needed to consult with Dr. Coker Jones’s Thereafter, and Dr. Dr. Pope. McGraw returned and told Mr. that the blood clot was some superficial prescribed Jones Later, medicine for him. Mr. taken to collapsed the Jones where doctors discovered a hospital embolism. He was pulmonary transferred to ultimately Center, Medical Washington Regional where he was in and out care critical unit. to Mr. According this incident Jones, rendered him unable to work for thirty days once work, then he returned he could for a little only stay while at a time. He testified that he fears that the off time will affect his career. He that he tires more explained and cannot do all easily that he did before. things Lizabeth testified about ordeal husband’s Jones stated he that no her with routine household longer helps chores and that such are now left for her to things do. She stated also that her husband is fearful of in intercourse and that their engaging has since the relationship embolism. She changed also testified that which was aggravated by she suffers from Syndrome, Epstein-Barr embolism. of her husband’s was under because the stress she sum, evidence supporting testimony Joneses’ a trial as It is axiomatic judge, court’s award trial fact-finder, and is free believe sole evaluator of is the credibility Barbera, witness. Young disbelieve the testimony any Burris, Schueck v. 233 S.W.3d he believed clearly 957 S.W.2d 702 (1997). Joneses’ were war- determined that testimony requested more than second is doing ranted. opinion nothing majority reason, in this For court’s decision trial regard. guessing dissent. Gunter,

Hannah, in this dissent. join C.J., J., KALE, Robert L. M.D. v. STATE MEDICAL BOARD

ARKANSAS 05-1401 Court Arkansas

Supreme 29, 2006 delivered Opinion June denied 7, 2006.] [Rehearing September

Case Details

Case Name: McGraw v. Jones

Court Name: Supreme Court of Arkansas

Date Published: Jun 29, 2006

Citation: 238 S.W.3d 15

Docket Number: 06-00048

Court Abbreviation: Ark.