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
Charles D. Hancock, for appellee.
A. WOMACK, Associate Justice.
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.
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.
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."
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.
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.
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.
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.
Motion to Dismiss
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 ...