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MCSA, LLC v. Thurmon

Court of Appeals of Arkansas, Division I

October 8, 2014



Friday, Eldredge & Clark, by: Jason B. Hendren, and Travis J. Fowler, for appellant.

Law Office of David P. Price, P.A., by: David P. Price; and Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellees.



Page 429


MCSA, LLC, d/b/a Medical Center of South Arkansas (the hospital) appeals a damages award in a default judgment, challenging the sufficiency of the evidence.[1] We reverse and remand for a new hearing on the amount of damages.

On March 7, 2013, Mickey and Ella Thurmon filed a complaint alleging that Ella sustained injuries at the hospital on June 28, 2011, when she stepped on a slippery substance on a tile floor near where a janitor was working. The Thurmons alleged that the hospital's negligence in causing the substance to be placed on the floor and in failing to warn that the floor was slippery caused Ella to sustain damages--some of which were permanent in nature. Ella claimed that she sustained serious bodily injuries, incurred substantial past medical bills, and would continue to incur future medical bills; she asked for damages for past and future pain, suffering, and mental anguish. Mickey, her husband, claimed that the hospital's negligence caused him to lose the companionship and services of his wife.

On May 5, 2013, the Thurmons moved for a default judgment and requested a damages hearing, noting that service had been perfected on the hospital's registered agent, that the hospital had not filed an answer or otherwise appeared, and that the time for doing so had passed. At the October 22, 2013 hearing on damages, the Thurmons' proof consisted of their own testimony, medical exhibits, and related travel expenses. The hospital was not notified of the hearing and did not appear. On November 5, 2013, the circuit court awarded a default judgment to the Thurmons, finding that they were entitled to judgment as a matter of law because the hospital failed to timely respond and

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awarding damages in the amount of $645,055.98.

On November 20, 2013, the Thurmons contacted the hospital regarding their intent to execute on the judgment. The hospital answered the complaint on November 22, 2013, denying its allegations and affirmatively asserting contributory negligence, assumption of the risk, " obvious danger rule," comparative fault, and other affirmative defenses.

Also on November 22, 2013, the hospital filed a motion to set aside the judgment, contending that the damages amount should be set aside because the Thurmons failed to notify the hospital of the damages hearing and that the evidence did not support the award granted. The hospital requested that the case be decided on its merits; alternatively, it requested that the award be set aside on the basis that it was clearly erroneous and that another damages hearing be conducted with the hospital's participation. The motion cited Ark. R. Civ. P. 55, which states:

The court may, upon motion, set aside a default judgment for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) the judgment is void; (3) fraud, misrepresentation, or other misconduct on the adverse party; or (4) any other reason justifying relief from the operation of the judgment. The party seeking to have the judgment set aside must demonstrate a meritorious defense to the action; however, if the judgment is void, no other defense to the action need be shown.

On December 4, the circuit court conducted a hearing on the motion to set aside the default judgment. The hospital argued in part that the award--roughly twenty times the $30,809.98 in medical expenses--was unreasonable; that the only witnesses were the Thurmons; that their counsel suggested numbers to them and the court merely tallied them; that there were no experts or proof that each expense " was related to the damage total" ; and that the medical records did not support the damages award. At the conclusion of the hearing, the court denied the motion to strike default liability but took under advisement the issue of setting aside the default-damages award.

On December 14, 2013, the court granted the hospital an extension to file its notice of appeal. On December 18, 2013, the hospital filed its notice of appeal from the default judgment of November 5, 2013. In an order of December 31, 2013, the court denied the hospital's motion to set aside and explained the damages award:

4. The testimony revealed that at the time of the occurrence giving rise to this lawsuit Ella Thurmon was a healthy, active wife, mother, and grandmother. She worked with her husband in his logging business as a bookkeeper and errand runner. She maintained the house, cooked, did yard work, and helped with the hay harvest. She walked, traveled, was frequently involved in family gatherings, and played ...

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