Appellant, Freddy Tharp, appeals the order of the Ashley County Circuit Court refusing to set aside a default judgment that awarded damages of $4,723.00 plus costs and interest to Appellee, Velma Smith, on her complаint for damages for repairs she made to Appellant’s real property in contemplation of purchasing the property pursuant to an oral contract. Appellant presents two argumеnts for reversal. First, he contends the trial court should have set aside the default judgment to prevent a miscarriage of justice. Second, he contends there was no evidence to support the award of damages. Appellant’s first argument requires our interpretation of ARCP Rule 55, specifically Rule 55(c)(4). Thus, our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 1-2 (a) (3). We find no merit to Appellant’s first argument, but do find merit to his second аrgument and therefore affirm the default judgment as to liability but reverse and remand for a hearing to determine the amount of damages.
Appellee filed a complaint on June 9, 1995, alleging that Appellant orally agreed to sell her a house he owned at 500 North Carolina Street in Crossett, Arkansas, for $4,723.00, provided that she would repair the house,
The record does not indicate that Appellee ever moved for a default judgment or thаt a hearing was ever held. However, the trial court entered a default judgment for Appellee on September 5, 1995, finding that Appellant was served with a copy of the complaint and summons but had failed to appear.
Appellee’s counsel then filed a writ of execution and a writ of garnishment naming First State Bank of Crossett as garnishee. Garnishee answered and admitted being indebted to Appellant in excess оf $5,301.13. The trial court entered an order on October 4, 1995, ordering the release of funds from Garnishee in the amount of $5,301.13.
On October 13, 1995, Appellant filed a single motion captioned “MOTION TO SET ASIDE JUDGMENT AND MOTION TO QUASH WRIT OF GARNISHMENT.” The trial court set a hearing on this motion and temporarily restrained Ap-pellee and her counsel from disbursing the funds released by Garnishee until the hearing could be held. The trial court allowed Garnishee to intervene in the case. At the hearing on the motion to set aside judgment, the trial court received evidence from both Appellant and Appellee. The trial court entered an order denying Appellant’s motion. This appeal followed. Appellee did not file a brief in this appeal.
Appellant’s first point on appeal is that the trial court erred in refusing to set aside the default judgment in toto. He contends that he was justified in failing to answer thе complaint, that the trial court did not consider the proper factors in making its decision, and that a miscarriage of justice will result if he is not allowed to present a defense. Appellant’s second рoint for reversal is that the trial court erred in failing to set aside the default judgment as to damages because there is no evidence of the amount of the damages. The standard by which we review the granting or denial of a motion to set aside a default judgment is whether the trial court abused its discretion. B & F Eng’g, Inc. v. Cotroneo,
It is well established that in Arkansas a default judgment establishes liability but not the extent of damages. See, e.g., Byrd v. Dark,
A hearing is required to determine the amount of damages, and the plaintiff is required to introduce evidence of the damages. Cotroneo,
Appellant argues that he was justified in not answering the complaint. However, at the hearing on the motion to set aside, the trial court stated that it did not find any reason for setting aside the default judgment. We find no abuse of discretion in this ruling as it applies to the judgment of liability.
Appellant testified at the hearing on the motion to set aside that he never received service of the complaint and that he had been out of town, but admitted that “somebody come [sic] up and found it on the floor there.” This testimony is in direct conflict with the summons, which clearly states that service was made on Appеllant. Appellant explained that he thought this matter was being attended to by the attorney he had hired to handle the eviction proceeding in municipal court, although that proceeding was not filed until after service was made on Appellant and although Appellant did not even notify that attorney of the writ of garnishment that Appellant admitted he received. The trial court stated that the record was clеar that Appellant was served with summons by the sheriff and that Appellant chose to deal with the dispute between himself and Appellee by pursuing the eviction proceeding in municipal court. On this record, we cannot say the trial court abused its discretion in finding that there was no excuse for Appellant’s default or that the trial court failed to apply the relevant consideration of Rule 55(c).
Appellant cites Rule 55(c)(4) and argues that a miscarriage of justice will result if he is not allowed to present a defense and that such miscarriage of justice constitutes “any other reason justifying relief from the operation of the judgment.” This is nothing more than a back-door attempt to satisfy Rule 55(c), which requires, in effect, two steps to having a default judgment set aside. First, a defaulting defendant must show one of the four enumerated categoriеs of reasons to have the judgment set aside. Second, if the reason is any other than that the judgment is void, a defaulting defendant must then demonstrate a meritorious defense to the action. Here, appellant argues that the “reason” to set aside the judgment is because he has a meritorious defense and a miscarriage of justice will result if he is not allowed to present it. This argument clearly circumvents the dual requirements of Rule 55(c). Moreover, it ignores the cogent fact that the reason Appellant was not allowed to present a defense in the first place is because of his own unexcusable default.
Because Appellant did not file an answer or otherwise appear in this case, Appellee was entitled to the default as to liability without further notice. However, Appellee was not relieved of the requirement of proving the amount of her damages. There is nothing in the record to indicate that the trial court heard evidence as to the amount of the damages. In fact, there is every indication to the contrary. At the hearing on the motion to set aside the default judgment, Appellee testified that she did not testify as to the amount of her damages at the time the default judgment was entered, and the trial court stated that he did not recall whether proof was presented or not. Moreover, the default judgment itself does not recite that it was based on any evidence being presented, and we will not presume otherwise. See Rice,
As recited above, our law is clear that a plaintiff must prove his damages against a defaulting defendant. We note that, at the hearing on the motion to set aside the default judgment, the trial сourt did receive testimony from Appellee as to what repairs she had made to the house; however, her testimony included only a relative few specific dollar figures and the remainder of her testimоny
In summary, we conclude the trial court did not abuse its discretion in refusing to vacate the default judgment as to liability. However, the trial court should not have entered judgment as to damages without conducting a hearing where Appellee should have bеen required to prove the amount of her damages and where Appellant should have been allowed the opportunity to cross-examine her witnesses and to offer his own evidence of mitigation. Accordingly, we affirm the judgment in part and reverse and remand in part.