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Skyridge Estates, LLC v. Ellis

Court of Appeals of Arkansas, Division IV

March 7, 2018

SKYRIDGE ESTATES, LLC APPELLANT
v.
JULIE ELLIS APPELLEE

         APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CV-16-110] HONORABLE XOLLIE DUNCAN, JUDGE

          Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., by: Curtis E. Hogue and M. Scott Hall, for appellant.

          Nolan, Cadell & Reynolds, P.A., by: Bill G. Horton; and Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellee.

          PHILLIP T. WHITEAKER, Judge

         Skyridge Estates, LLC (Skyridge), appeals a Benton County Circuit Court order denying its motion to set aside a default judgment. Because Skyridge failed to file a timely notice of appeal from that order, we dismiss the appeal with prejudice for lack of jurisdiction.

         I. Procedural History

         In June 2015, Julie Ellis injured herself when she fell in a hole while walking her dogs on the property of an apartment complex owned by Skyridge. She filed a negligence action against Skyridge, but her attempted service on Skyridge's registered agent was unsuccessful. She then attempted service by warning order. Skyridge did not answer. On July 18, 2016, Ellis obtained a default judgment against Skyridge in the amount of $350, 000.

         On October 17, 2016, Skyridge filed a motion to set aside the default judgment, arguing that the judgment awarded was excessive and that service was not proper. As to its service argument, Skyridge claimed that its registered agent never physically received a copy of the complaint or summons, and because the registered agent was located in Missouri, the agent never received notice by way of warning order. Ellis responded, alleging that the address for the registered agent on file with the Secretary of State's office was a Dardanelle, Arkansas, address and that Skyridge had provided no basis for excusing its failure to answer the complaint. The court denied the motion to set aside in a November 8, 2016 order. Skyridge did not appeal that order.

         On March 9, 2017, Skyridge filed a second motion to set aside, alleging that the default judgment was void ab initio due to Ellis's failure to file an affidavit of service according to Arkansas Rule of Civil Procedure 4(f)(4), [1] and a motion to dismiss pursuant to Rule 12(b)(6), alleging that the complaint failed to state facts sufficient to state a cause of action.[2] Ellis responded, arguing (1) that because the court had already denied the first motion to set aside and no appeal was taken, the judgment was final and not subject to attack; (2) that a party cannot make multiple attacks on the validity of service; and (3) that arguments regarding the insufficiency of service of process and the sufficiency of the complaint can be waived if not brought in a timely manner. Ellis did not contest her failure to file an affidavit of service pursuant to Rule 4(f)(4).

         The court conducted a hearing on the motions to set aside and to dismiss on April 13, 2017. After hearing arguments of counsel, the court indicated that it had concerns. The court was troubled by the notion of enforcing a void judgment. However, it was more concerned by its authority to entertain multiple motions to set aside a default judgment when the issue could have been raised in the first instance, especially when the initial denial had not been appealed. The court then took the matter under advisement so it could further review the case law. Given the court's concern, Skyridge requested an opportunity to present supplemental briefing to the court on the issues. The court granted the request. Skyridge filed its supplemental brief on April 26, 2017; Ellis filed hers on May 1, 2017.

         On May 8, 2017, Skyridge filed its notice of appeal from "the denial of its Motion to Set Aside Default Judgment and Motion to Dismiss filed March 9, 2017, which was deemed denied April 8, 2017 pursuant to Rule 4 of the Arkansas Rules of Appellate Procedure." On May 25, 2017, the trial court entered a formal, written order denying the motion to set aside. Skyridge did not file an amended notice of appeal.

         II. Analysis

         Based on the recited procedural history, we hold that Skyridge failed to file a timely notice of appeal, which deprives us of jurisdiction. As a result, we do not reach the merits of the arguments raised by Skyridge on appeal.

         Skyridge filed its notice of appeal on May 8, 2017. It argues that the notice is timely because it appeals the deemed denial of its motions to set aside and dismiss effective April ...


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