Bashiri v. Frankian

2013 Ark. App. 591

• Court: Court of Appeals of Arkansas
• Decided: October 23, 2013
• Docket: CV-13-191
• Status: Published

Opinion

Cite as 2013 Ark. App. 591

ARKANSAS COURT OF APPEALS DIVISION II No. CV-13-191

Opinion Delivered October 23, 2013

HASSAN BASHIRI APPEAL FROM THE VAN BUREN APPELLANT COUNTY CIRCUIT COURT [NO. 71CV-12-161-2] V. HONORABLE MICHAEL A. MAGGIO, JUDGE JUSTIN FRANKIAN APPELLEE REVERSED AND REMANDED

ROBIN F. WYNNE, Judge

Dr. Hassan Bashiri appeals from an order of the circuit court denying his motion to set

aside a prior order granting Justin Frankian’s motion for summary judgment. Dr. Bashiri

makes the following arguments on appeal: (1) the circuit court erred in granting Frankian’s

motion for summary judgment on the same day that it was filed; (2) the circuit court erred

in ruling that Arkansas Rule of Civil Procedure 55(c) did not apply to Dr. Bashiri’s motion

to set aside the judgment; and (3) the circuit court erred in sustaining Frankian’s objection to

Dr. Bashiri’s testimony regarding the merits of the action. We find merit in Dr. Bashiri’s

arguments and reverse and remand the order of the circuit court.

This litigation arose out of a dispute over a loan. As a result of the dispute, Dr. Bashiri

filed a complaint against Frankian in Los Angeles, California, and Frankian filed suit against

Dr. Bashiri in Van Buren County, Arkansas. In his complaint, Frankian alleged that he had Cite as 2013 Ark. App. 591

loaned Dr. Bashiri $50,000 and asserted that he was entitled to a judgment in the amount of

the loan plus interest and costs. Both complaints were served upon the respective defendants.

It is undisputed that Dr. Bashiri did not answer the Arkansas complaint within the time

prescribed by Arkansas law.

On October 19, 2012, Dr. Bashiri’s complaint in California was dismissed for

nonpayment of filing fees. Frankian’s Arkansas counsel filed a motion for summary judgment

at 9:00 a.m. on October 29, 2012. In the motion, Frankian asserted that there was no

material issue of fact in dispute because Dr. Bashiri did not respond to the complaint. The

circuit court entered an order granting the motion for summary judgment at 10:53 a.m. on

October 29, 2012. A writ of garnishment was subsequently entered against Dr. Bashiri.

Dr. Bashiri filed a motion to set aside the summary-judgment order, which he referred

to as a default order, and quash the writ of garnishment. In the motion, Dr. Bashiri argued

that the previous order should be set aside pursuant to Arkansas Rule of Civil Procedure 55(c)

because it was entered as a result of fraud or mistake on the part of Frankian. Alternatively,

Dr. Bashiri argued that he had a meritorious defense to the action in that California was the

more convenient forum. At the hearing on the motion to set aside, Dr. Bashiri’s counsel

argued that he was not served with the summary-judgment motion and had no opportunity

to respond. On December 6, 2012, the circuit court entered an order in which it denied Dr.

Bashiri’s motion to set aside the earlier order and quash the writ of garnishment. This appeal

followed.

2 Cite as 2013 Ark. App. 591

Our supreme court has stated that motions should be liberally construed, and that

courts should not be blinded by titles but should look to the substance of motions to ascertain

what they seek. Stickels v. Heckel, 2009 Ark. App. 829, 370 S.W.3d 857, 860. The motion

filed by Frankian, while titled a summary-judgment motion, was clearly a motion for default

judgment, as the motion was based entirely on the failure of Dr. Bashiri to answer Frankian’s

complaint. The circuit court, however, treated the motion as one for summary judgment and

entered an order that makes no mention of Dr. Bashiri’s failure to file an answer.1 In the

order denying the motion to set aside, the circuit court stated the following: “The facts of this

case do not warrant the application of Ark. R. Civ. P. 55(c).” While we are not considering

the merits of the motion to set aside in this appeal, Rule 55(c) should be used in determining

whether to grant the motion, because the order requested to be set aside was filed as a result

of a motion for default. It does not appear from its order that the circuit court properly

considered Frankian’s motion as one for default, nor was Dr. Bashiri’s motion treated as one

to set aside a default judgment. Thus, the order of the circuit court is reversed, and the case

is remanded to the circuit court for it to have a hearing on the motion to set aside the default

judgment and determine whether the judgment should be set aside using the proper standard.

Reversed and remanded. GLOVER and VAUGHT, JJ., agree. Tester Law Firm, by: Chad J. Brown, for appellant. Raymond Harrill, for appellee.

1 We note that the opposing party has twenty-one days to respond to a motion for summary judgment. Ark. R. Civ. P. 56(c). While a circuit court has discretion to reduce or enlarge the time for a response to the motion upon a showing of good cause, id., no finding of good cause to do so in this case was made by the circuit court.