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Cardinal Health v. Beth's Bail Bonds, Inc.

Supreme Court of Arkansas

February 23, 2017

CARDINAL HEALTH APPELLANT
v.
BETH'S BAIL BONDS, INC. APPELLEE

         APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT [NO. CV-14-3231] HONORABLE TIMOTHY DAVIS FOX, JUDGE

          Jackson Lewis P.C., by: James R. Mulroy II; and Barber Law Firm, PLLC, by: J. Carter Fairley and S. Brent Wakefield, for appellant.

          Charles D. Hancock, for appellee.

          SHAWN A. WOMACK, Associate Justice.

         Appellant Cardinal Health appeals from the Pulaski County Circuit Court's denial of its motion for relief from an order to pay in a garnishment proceeding. Appellee Beth's Bail Bonds filed a motion to dismiss this appeal, which we opted to dispose of alongside the merits of the appeal. For the reasons discussed below, we deny the motion to dismiss and reverse the circuit court's denial of Cardinal Health's motion for relief.

         I. Facts

         Beth's Bail Bonds filed a breach-of-contract claim against Cassondrea Livingston and Calvin Stovall. The circuit court entered a default judgment for $26, 235 as to Livingston. The clerk issued a writ of garnishment based on the allegation that Cardinal Health possessed assets belonging to Livingston for the satisfaction of the default judgment. Cardinal Health was served with the writ through certified mail in March 2015 and was directed to answer. Cardinal Health answered the interrogatories included in the writ, stating that Livingston earned $14.64 hourly in Cardinal Health's employ.

         The circuit court set a hearing for June 1, 2015. The court sent notice of this hearing electronically on May 27, 2015, but sent it only to the counsel for Beth's Bail Bonds, Thomas Burns. The notice of the hearing stated that it was "the responsibility of the parties/attorneys to notify [the court] of any parties/attorneys who have been inadvertently omitted from this notice."

         Beth's Bail Bonds did not serve a copy of the hearing notice on Cardinal Health. The only communications between the parties between the date of service of the writ of garnishment and the date of the hearing were (1) Burns's notice and entry of appearance and (2) a proposed draft of the order to pay, both sent on May 1, 2015. Neither document indicated the date or existence of the June 1, 2015 hearing, which had been scheduled only five days prior to the hearing.

         When Cardinal Health did not appear at the June 1, 2015 hearing, the circuit court stated that Cardinal Health had made "several errors" and had been "given an opportunity when this hearing was set to realize that some huge misprision had been made." The circuit court issued an order to pay for $26, 874, which is the original amount of the judgment against Livingston plus postjudgment interest. The order was entered on the day of the hearing, but it was not served on Cardinal Health until October, long after the deadline for appeal had passed.

         Cardinal Health filed a motion for relief or in the alternative for an extension of the time to appeal. The circuit court denied the motion. Cardinal Health filed a notice of appeal.

         The circuit court also denied a motion to stay execution of the order to pay pending the appeal. We granted a motion to stay execution. Beth's Bail Bonds filed a motion to dismiss this appeal for lack of appellate jurisdiction, and we dispose of that motion with the case.

         II. Motion to Dismiss

         This appeal comes to us under Rule 2(a)(5) of the Arkansas Rules of Appellate Procedure-Civ., which authorizes us to hear an appeal from "an order which vacates or sustains an attachment or garnishment." Beth's Bail Bonds argues that this is not such an action, because it is an appeal from the denial of a postjudgment motion for relief from December 2015 rather than from the initial writ of garnishment or the order to pay from June 2015. Beth's Bail Bonds additionally argues that Cardinal Health waived its alternative argument requesting an extension of ...


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