Arkansas Department of Human Services, Office of Long Term Care v. Phoebe Egbosimba

2019 Ark. App. 608

• Court: Court of Appeals of Arkansas
• Decided: December 11, 2019
• Status: Published

Opinion

Cite as 2019 Ark. App. 608 Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS Perry DIVISION IV Date: 2022.08.09 11:51:51 No. CV-19-13 -05'00' Adobe Acrobat version: 2022.001.20169 ARKANSAS DEPARTMENT OF Opinion Delivered: December 11, 2019 HUMAN SERVICES, OFFICE OF LONG TERM CARE APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, APPELLANT FIFTH DIVISION [NO. 60CV-18-717] V. HONORABLE WENDELL GRIFFEN, PHOEBE EGBOSIMBA JUDGE

APPELLEE AFFIRMED

WAYMOND M. BROWN, Judge

Appellant Arkansas Department of Humans Services, Office of Long Term Care

(“OLTC”) appeals the grant of a default judgment in favor of appellee Phoebe Egbosimba.

We affirm.

Following a hearing on a complaint regarding Egbosimba’s treatment of a patient,

OLTC issued a decision placing Egbosimba, a licensed practical nurse, on the Adult and

Long-term Care Facility Resident Maltreatment Registry. Pursuant to the Arkansas

Administrative Procedure Act, 1 on February 5, 2018, Egbosimba filed in the Pulaski County

Circuit Court a “Petition for Administrative Appeal” of OLTC’s decision to place her on

the maltreatment registry. On September 18, Egbosimba filed a letter motion and brief in

1 Ark. Code Ann. § 25-15-212 (Repl. 2014). support of the motion requesting the circuit court to enter a default judgment against

OLTC. Egbosimba’s motion stated that despite having been served, OLTC failed to answer

and failed to file the record as required under Arkansas Code Annotated section 25-15-

212(d)(1). On September 20, the circuit court entered default judgment against OLTC and

reversed the agency’s decision to place Egbosimba on the maltreatment registry. OLTC

now appeals.

OLTC asserts (1) service of the petition on OLTC was invalid, (2) dismissal of the

action was mandatory due to lack of proper and timely service, and (3) a default judgment

was not an appropriate remedy for an appeal from an administrative proceeding.

Rule 55 of the Arkansas Rules of Civil Procedure governs default judgments.

Subsection (c) provides the means for setting aside default judgments:

The court may, upon motion, set aside a default judgment previously entered for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) the judgment is void; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; or (4) any other reason justifying relief from the operation of the judgment. The party seeking to have the judgment set aside must demonstrate a meritorious defense to the action; however, if the judgment is void, no other defense to the action need be shown.

Here, OLTC failed to file a motion to set aside the default judgment, which would

have been the proper recourse. In fact, OLTC did not answer, file the record, or otherwise

respond to the action in any way prior to filing the notice of appeal in this case. Because

OLTC did nothing in the circuit court, i.e., did not contest service or oppose the default

judgment below, the issues on which OLTC appeals are not preserved for our review. We

2 are a reviewing court, not a fact-finding court. Therefore we are precluded from reaching

the merits of the arguments that OLTC brings for the first time on appeal. 2

Affirmed.

WHITEAKER and HIXSON, JJ., agree.

Suba Desikan and Richard Rosen, Office of Chief Counsel, for appellant.

John Wesley Hall and Sarah M. Pourhosseini, for appellee.

2 Sun Gas Liquids Co. v. Helena Nat’l Bank, 276 Ark 173, 633 S.W.2d 38 (1982) (holding that appellate court will not consider issues raised for the first time on appeal, even those contesting the validity of service).