FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35CV-15-188]
HONORABLE ROBERT H. WYATT, JR., JUDGE
Kezhaya Law, by: Matthew A. Kezhaya, and Jennifer Hosp, law
student admitted to practice pursuant to Rule XV of the Rules
Governing Admission to the Bar of the Supreme Court, for
Ramsay, Bridgforth, Robinson and Raley, by: William M.
Bridgforth and Brett D. Watson, Attorney at Law, PLLC, by:
Brett D. Watson, for appellees.
J. GLADWIN, JUDGE.
Jefferson County Circuit Court set aside its default judgment
against appellee- Shahrokh Javidzad and Y&S Pine Bluff,
LLC (Y&S), which is an administratively dissolved LLC
solely owned by Javidzad. Shokrolla Eliasnik appeals, arguing
three points: (1) the circuit court erred by granting
appellee's motion to set aside default judgment because
it had been deemed denied; (2) the circuit court abused its
discretion by granting appellee's Arkansas Rule of Civil
Procedure 59 (2016) motion because the service question was
meritless, waived, and barred; and (3) the circuit court
erroneously ignored the savings statute by dismissing
appellant's lawsuit with prejudice. We affirm.
filed a complaint on April 21, 2015, alleging that appellee
had written seventeen checks to him over the past five years
totaling $505, 000. Appellant had tried to deposit the first
three checks, but they were returned due to insufficient
funds. Appellant claimed that he was entitled to restitution
from appellee in twice the amount of the seventeen checks.
See Ark. Code Ann. § 4-60-103 (Repl. 2011).
Appellant alleged in his complaint that he was sending
written demand to appellee's last known addresses, 4030
West 25th Street, Pine Bluff, Arkansas 71603 and 10435 Santa
Monica Boulevard, 2nd Floor, Los Angeles, California 90025.
4, 2015, appellant filed a motion for default judgment
claiming that he had attempted to serve Y&S but was
unable to perfect service through certified mail. Appellant
alleged that Javidzad was the registered agent for process
for Y&S according to the Arkansas Secretary of
State's records. Appellant stated that he had served
appellee on May 4, 2015, through the Arkansas Secretary of
State, see Ark. Code Ann. § 16-58-120 (Repl.
2005) (the long-arm statute); thirty days had elapsed; and
neither Y&S nor Javidzad had filed an answer or pleading.
Thus, appellant asked for default judgment pursuant to
Arkansas Rule of Civil Procedure 55(a).
damages hearing was held on September 1, 2015, and the
circuit court noted that "[appellee] was served on April
29, 2015, and since that time, he has not filed an answer,
nor has he filed any motion pursuant to Rule
He is in default. You may call your first witness."
Appellant's counsel presented an affidavit signed by
appellant and a letter mailed April 21, 2015, asking for
damages in addition to the $515, 000 double damages. The
circuit court asked if appellee had responded, and
appellant's counsel said, "No response." The
circuit court awarded $2500 in attorney's fees and a $1,
515, 030 judgment with interest against appellee. The
judgment was filed on September 1, 2015.
Motion to Set Aside Default Judgment
August 8, 2016, appellee filed a motion to set aside the
default judgment under Rule 55(c), arguing that the default
had been procured by fraud. Appellee claimed that appellant
had represented to the circuit court that appellee's last
known addresses were in Pine Bluff, Arkansas, and at 10435
Santa Monica Boulevard, 2nd Floor, Los Angeles, California
90025. Appellee asserted that at the time the complaint was
filed in April 2015, he and appellant were parties in a
lawsuit that remained pending in California and that the
subject matter of the California complaint involved the same
business dispute that was the subject of the instant
complaint. The California pleadings were attached and
incorporated. Appellee alleged that appellant filed proofs of
service in the California court stating that appellee was
personally served at 1608 Sawtelle Boulevard, Los Angeles,
California 90025. Therefore, appellee asserted that at the
time of the filing of the instant matter, appellant knew that
appellee's office address was 1608 Sawtelle Boulevard in
Los Angeles, and appellant knowingly and deliberately
provided the circuit court with outdated and incorrect
addresses for appellee. Appellee alleged that appellant's
statement that appellee's last known address was anything
other than 1608 Sawtelle Boulevard in Los Angeles was
also claimed that appellant knew his home address in Beverly
Hills and that prior to this dispute, the parties had been
family friends for many years, appellant having been in
appellee's home and residing in the same neighborhood.
Appellee claimed that appellant knew his telephone number and
email address. Appellee alleged that appellant defrauded the
circuit court to gain an advantage in the California
litigation. Appellee claimed that the fraud was discovered
when appellant's son alluded to him that a judgment had
been entered against him in Arkansas.
responded that he had relied on the Arkansas Secretary of
State's records when obtaining appellee's address. He
denied that the California litigation involved the same
business dispute because he sued appellee under Arkansas
statutes seeking restitution for insufficient checks in the
instant matter. He also denied having any personal knowledge
of appellee's whereabouts. Appellant claimed that
appellee received valid service of the complaint through his
designated agent pursuant to Arkansas's long-arm statute.
Appellant also contended that appellee had failed to
November 28, 2016 hearing on appellee's motion to set
aside the default judgment, appellant testified using an
interpreter. He said that he lives in Beverly Hills,
California, that he does not work, and that he could speak
very little English. He said that his son had filed the
lawsuit on his behalf against appellee.
testified that he lives in Beverly Hills, California, that he
had known appellant for about ten years, and that appellant
had filed a lawsuit against him in California. Appellee said
that appellant's lawyer in California had personally
served him with the California complaint at his office at
1608 Sawtelle Avenue,  Los Angeles, California 90025, and proofs
of service were filed. When appellant later amended his
California complaint, it was served on appellee's
attorney. Appellee also said that he had provided his office
address of 1608 Sawtelle to appellant when he answered
discovery requests in the California case. When appellant
filed suit against him on April 21, 2015, in Arkansas, his
office address was 1608 Sawtelle Avenue, Los Angeles,
California 90025. Appellee said that he did not know of the
Arkansas lawsuit until he learned of the default judgment
through appellant's son, and his attorney researched it.
testified that he did not know appellee's whereabouts
between 2013 and 2015. He said that he never provided his
attorneys in California or Arkansas with the address of
appellee, and that neither asked him for it. He said that he
did not speak to his Arkansas attorney before the lawsuit was
filed, and he did not know if he had ever talked to his
circuit court found that there was no proof of fraud
presented and that no meritorious defense was provided. It
found that service was valid because appellant used the
addresses for appellee on file with the Arkansas Secretary of
State's office and that appellee had a duty to update the
records at the Arkansas Secretary of State's office. The
Arkansas Secretary of State was served, and that officer
forwarded the lawsuit to appellee at the last known
addresses. Thus, the circuit court denied from the bench the
motion to set aside the default judgment.
filed a motion for findings of fact and conclusions of law on
November 29, 2016, stating that no order had been entered and
requesting specific findings and conclusions because the
circuit court did not state any as to why the default
judgment should stand against him individually. Appellee
stated that Arkansas law requires that service giving actual
notice of a lawsuit is mandatory in all cases when the
whereabouts of a defendant is known to the plaintiff.
Appellee then requested that the circuit court grant the
motion to set aside default judgment.
filed a motion for new trial on December 21, 2016, stating
that judgment had not been entered regarding the circuit
court's ruling on the motion to set aside default
judgment. Appellee asked for a new trial because the circuit
court's decision was contrary to the preponderance of
evidence and contrary to the law. Appellee alleged that there
was an error in the assessment of the amount of recovery
awarded to appellant and argued that the circuit court should
reconsider under Arkansas Rule of Civil Procedure 59.
supporting brief, appellee claimed that Arkansas's
long-arm statute was not applicable because the checks on
which the cause of action was premised were not written in
Arkansas, the parties' agreement of June 9, 2010,
occurred in California, and appellant never attempted to have
appellee served outside the State of Arkansas. See
Ark. Code Ann. § 16-58-120(a) and (b)(1). Further,
appellee alleged that the parties' agreement of June 9,
2010, contained a choice-of-law provision that California law
would govern. Appellee also argued that appellant failed to
perfect service at the addresses of which appellant had
actual knowledge based on the discovery answers filed in the
California lawsuit. Further, appellant failed to strictly
adhere to the requirements of section 16-58-120. Appellee
claimed that because the default judgment was void, appellee
was not required to demonstrate a meritorious defense.
Finally, appellee argued that the damages awarded in the
default judgment were excessive, because appellant's
complaint alleged that only three checks were shown to be
returned for insufficient funds; thus, the award should be as
to only those three.
responded, arguing that appellee's Rule 59 motion was
untimely, because Rule 59(b) requires that such motions be
brought within ten days after entry of the judgment. Because
the default judgment was filed September 1, 2015, appellant
claimed that appellee's motion under Rule 59 was
time-barred. Appellant also argued that appellee's
arguments were barred by the law of the case, that the trial
court's decision-to ...