FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CV-16-110]
HONORABLE XOLLIE DUNCAN, JUDGE
Estill, Hardwick, Gable, Golden & Nelson, P.C., by:
Curtis E. Hogue and M. Scott Hall, for appellant.
Cadell & Reynolds, P.A., by: Bill G. Horton; and Brian G.
Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for
PHILLIP T. WHITEAKER, Judge
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.
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.
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.
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),  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. 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).
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.
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.
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.
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 ...