Cite as 2024 Ark. App. 127 ARKANSAS COURT OF APPEALS DIVISION III No. CV-23-109
DARLETTE EWING Opinion Delivered February 21, 2024
APPELLANT APPEAL FROM THE LOGAN COUNTY CIRCUIT COURT, V. NORTHERN DISTRICT [NO. 42PCV-21-95] LEA SCHMALZ APPELLEE HONORABLE TERRY SULLIVAN, JUDGE
AFFIRMED IN PART; DISMISSED IN PART
CINDY GRACE THYER, Judge
Darlette Ewing appeals the Logan County Circuit Court’s entry of a default judgment
against her and its award of attorney’s fees. Ewing first claims that a default judgment should
not have been entered because she timely “appeared” and sought to contest the action. She
also claims that the equitable doctrines of waiver and laches preclude Schmalz’s right to a
default judgment. Next, she argues that the court erred in denying her motion to set aside
the default judgment because the default here was largely technical, Schmalz was not
prejudiced by any delay, and there is a meritorious defense to the action. Finally, she argues
that the trial court erred in granting attorney’s fees, claiming fees are not authorized in the
type of case presented here. Because Ewing’s arguments regarding the entry of default
judgment and the award of attorney’s fees have no merit, we affirm. However, because her arguments regarding the court’s denial of her motion to set aside are premature, we dismiss
without prejudice that portion of her appeal.
I. Factual and Procedural History
The underlying dispute in this case involves the ownership and possession of a 1979
Chevrolet Corvette. In July 2017, Frank Schluterman (Ewing’s father) and Schmalz
purchased the Corvette and titled it in both their names.1 When Schluterman died in
November 2020, Schmalz had a new title issued reflecting that she was the sole owner of the
vehicle. Schmalz, however, was not in possession of the vehicle at that time; Ewing was.
Schmalz requested that Ewing return the car to her on multiple occasions, but Ewing refused
to do so.
On October 4, 2021, Schmalz, claiming to be the rightful owner of the car, filed suit
against Ewing for replevin, conversion of personal property, unjust enrichment, and trespass
to chattel. She sought return of the vehicle, damages, and attorney’s fees. The court entered
an order for delivery and set a hearing for December 1. Ewing was personally served with the
summons, complaint, and accompanying documentation on November 30 and again at the
hearing on December 1.
At the December 1 hearing, Ewing appeared and asked for additional time to hire an
attorney. Schmalz did not object. The court then entered an order instructing Ewing to
review the complaint and summons and “direct her actions accordingly.” The court then
1 Specifically, the car was titled: “Schluterman, Frank Edward or Schmalz, Lea.”
2 continued the matter “until [Ewing] files an Answer in accordance with the Arkansas Rules
of Civil Procedure, [Ewing] hires an attorney, and/or the parties contact the Court and
request a hearing.” The court noted that the Corvette (and its various parts and contents)
was in the possession of Schmalz’s mechanic and was to remain there pending further court
order.
Ewing hired an attorney and eventually answered the complaint on January 11, 2022—
forty-two days from the November 30 service date and forty-one days from the December 1
service date. On April 14, 2022, Schmalz moved for default judgment, arguing that Ewing
had failed to timely file an answer and requesting, in part, the return of the vehicle, an award
of damages, and an award of attorney’s fees.
When Ewing failed to file a timely response to the motion, Schmalz’s counsel
contacted the court by letter dated May 6, 2022, and requested that the court enter her
proposed order granting a default judgment or, in the alternative, set the matter for a
hearing. Three days later, Ewing filed her response arguing that Schmalz lacked the authority
to obtain a “retroactive” default judgment. She further argued that the court had granted
her permission to file a late answer; thus, a default judgment was not appropriate.
Schmalz filed a reply, denying that the court had granted Ewing permission to file a
late answer. To the contrary, she argued that the court had instructed Ewing to “read the
Summons and direct her actions accordingly” and had continued the matter until she filed
an answer “in accordance with the Arkansas Rules of Civil Procedure,” hired an attorney, or
the parties requested a hearing. She further denied that she was attempting a “retroactive”
3 default or that she had waived her entitlement to a default judgment by waiting until April
to file the motion. Finally, Schmalz asked that Ewing’s response be struck as untimely.
On October 19, 2022, the parties appeared for trial. However, before hearing
testimony or taking any evidence on the merits of the action, the court entertained counsel’s
arguments on Schmalz’s motion for default judgment.
Schmalz argued that Ewing had appeared at the hearing on December 1, confirmed
that she had been served, and was instructed to review the documents, including the
summons, and to direct her actions accordingly. Schmalz insisted that the court’s subsequent
order reflected that; yet Ewing’s answer was filed more than thirty days after the date of
service.
Ewing responded that default judgments are not favored and that the standard for
granting a default is whether the party with the delayed response was ready to defend the
litigation. Ewing asserted that she was not only ready to defend, but she had been defending
against the action for more than a year. She argued that Schmalz lost whatever opportunity
she had to seek such a drastic remedy by her delay in the filing of her motion and by her
failure to seek relief at a hearing sooner than the day of trial. Ewing contended that she was
prejudiced by this delay because she and her witnesses expended time and money preparing
for trial. Finally, she argued that the court had the authority to grant leave for the filing of a
late response, and the December 2021 continuance order appeared to toll the time in which
to respond until after she obtained counsel; thus, her answer was not untimely. Notably, the
record is silent as to when, exactly, Ewing retained counsel.
4 After hearing the arguments of counsel, the circuit court found that Ewing’s answer
was untimely. The court first noted that its December 2021 continuance order instructed
Ewing to review the complaint and summons and to direct her actions accordingly. It further
stated that the matter was continued until Ewing had filed an answer in accordance with the
Arkansas Rules of Civil Procedure, hired an attorney, or the parties contacted the court
requesting a hearing. The court found that nothing in that order granted Ewing the authority
to file a late answer. As a result, the court held that Ewing was in default as to liability, and
the court proceeded to the damages portion of the trial.
As part of the trial on damages, Schmalz testified as to the amount of attorney’s fees
and costs she incurred in an effort to recover the Corvette. Ewing argued that attorney’s fees
and costs were not recoverable, and to the extent they might be deemed recoverable, they
were limited to the filing of the complaint and motion for default judgment. Schmalz argued
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Cite as 2024 Ark. App. 127 ARKANSAS COURT OF APPEALS DIVISION III No. CV-23-109
DARLETTE EWING Opinion Delivered February 21, 2024
APPELLANT APPEAL FROM THE LOGAN COUNTY CIRCUIT COURT, V. NORTHERN DISTRICT [NO. 42PCV-21-95] LEA SCHMALZ APPELLEE HONORABLE TERRY SULLIVAN, JUDGE
AFFIRMED IN PART; DISMISSED IN PART
CINDY GRACE THYER, Judge
Darlette Ewing appeals the Logan County Circuit Court’s entry of a default judgment
against her and its award of attorney’s fees. Ewing first claims that a default judgment should
not have been entered because she timely “appeared” and sought to contest the action. She
also claims that the equitable doctrines of waiver and laches preclude Schmalz’s right to a
default judgment. Next, she argues that the court erred in denying her motion to set aside
the default judgment because the default here was largely technical, Schmalz was not
prejudiced by any delay, and there is a meritorious defense to the action. Finally, she argues
that the trial court erred in granting attorney’s fees, claiming fees are not authorized in the
type of case presented here. Because Ewing’s arguments regarding the entry of default
judgment and the award of attorney’s fees have no merit, we affirm. However, because her arguments regarding the court’s denial of her motion to set aside are premature, we dismiss
without prejudice that portion of her appeal.
I. Factual and Procedural History
The underlying dispute in this case involves the ownership and possession of a 1979
Chevrolet Corvette. In July 2017, Frank Schluterman (Ewing’s father) and Schmalz
purchased the Corvette and titled it in both their names.1 When Schluterman died in
November 2020, Schmalz had a new title issued reflecting that she was the sole owner of the
vehicle. Schmalz, however, was not in possession of the vehicle at that time; Ewing was.
Schmalz requested that Ewing return the car to her on multiple occasions, but Ewing refused
to do so.
On October 4, 2021, Schmalz, claiming to be the rightful owner of the car, filed suit
against Ewing for replevin, conversion of personal property, unjust enrichment, and trespass
to chattel. She sought return of the vehicle, damages, and attorney’s fees. The court entered
an order for delivery and set a hearing for December 1. Ewing was personally served with the
summons, complaint, and accompanying documentation on November 30 and again at the
hearing on December 1.
At the December 1 hearing, Ewing appeared and asked for additional time to hire an
attorney. Schmalz did not object. The court then entered an order instructing Ewing to
review the complaint and summons and “direct her actions accordingly.” The court then
1 Specifically, the car was titled: “Schluterman, Frank Edward or Schmalz, Lea.”
2 continued the matter “until [Ewing] files an Answer in accordance with the Arkansas Rules
of Civil Procedure, [Ewing] hires an attorney, and/or the parties contact the Court and
request a hearing.” The court noted that the Corvette (and its various parts and contents)
was in the possession of Schmalz’s mechanic and was to remain there pending further court
order.
Ewing hired an attorney and eventually answered the complaint on January 11, 2022—
forty-two days from the November 30 service date and forty-one days from the December 1
service date. On April 14, 2022, Schmalz moved for default judgment, arguing that Ewing
had failed to timely file an answer and requesting, in part, the return of the vehicle, an award
of damages, and an award of attorney’s fees.
When Ewing failed to file a timely response to the motion, Schmalz’s counsel
contacted the court by letter dated May 6, 2022, and requested that the court enter her
proposed order granting a default judgment or, in the alternative, set the matter for a
hearing. Three days later, Ewing filed her response arguing that Schmalz lacked the authority
to obtain a “retroactive” default judgment. She further argued that the court had granted
her permission to file a late answer; thus, a default judgment was not appropriate.
Schmalz filed a reply, denying that the court had granted Ewing permission to file a
late answer. To the contrary, she argued that the court had instructed Ewing to “read the
Summons and direct her actions accordingly” and had continued the matter until she filed
an answer “in accordance with the Arkansas Rules of Civil Procedure,” hired an attorney, or
the parties requested a hearing. She further denied that she was attempting a “retroactive”
3 default or that she had waived her entitlement to a default judgment by waiting until April
to file the motion. Finally, Schmalz asked that Ewing’s response be struck as untimely.
On October 19, 2022, the parties appeared for trial. However, before hearing
testimony or taking any evidence on the merits of the action, the court entertained counsel’s
arguments on Schmalz’s motion for default judgment.
Schmalz argued that Ewing had appeared at the hearing on December 1, confirmed
that she had been served, and was instructed to review the documents, including the
summons, and to direct her actions accordingly. Schmalz insisted that the court’s subsequent
order reflected that; yet Ewing’s answer was filed more than thirty days after the date of
service.
Ewing responded that default judgments are not favored and that the standard for
granting a default is whether the party with the delayed response was ready to defend the
litigation. Ewing asserted that she was not only ready to defend, but she had been defending
against the action for more than a year. She argued that Schmalz lost whatever opportunity
she had to seek such a drastic remedy by her delay in the filing of her motion and by her
failure to seek relief at a hearing sooner than the day of trial. Ewing contended that she was
prejudiced by this delay because she and her witnesses expended time and money preparing
for trial. Finally, she argued that the court had the authority to grant leave for the filing of a
late response, and the December 2021 continuance order appeared to toll the time in which
to respond until after she obtained counsel; thus, her answer was not untimely. Notably, the
record is silent as to when, exactly, Ewing retained counsel.
4 After hearing the arguments of counsel, the circuit court found that Ewing’s answer
was untimely. The court first noted that its December 2021 continuance order instructed
Ewing to review the complaint and summons and to direct her actions accordingly. It further
stated that the matter was continued until Ewing had filed an answer in accordance with the
Arkansas Rules of Civil Procedure, hired an attorney, or the parties contacted the court
requesting a hearing. The court found that nothing in that order granted Ewing the authority
to file a late answer. As a result, the court held that Ewing was in default as to liability, and
the court proceeded to the damages portion of the trial.
As part of the trial on damages, Schmalz testified as to the amount of attorney’s fees
and costs she incurred in an effort to recover the Corvette. Ewing argued that attorney’s fees
and costs were not recoverable, and to the extent they might be deemed recoverable, they
were limited to the filing of the complaint and motion for default judgment. Schmalz argued
that her counsel was entitled to recover fees for the time required to prepare for a hearing
on default, for a trial on the merits, and to attempt to recover the vehicle short of litigation.
After hearing all the evidence, the trial court entered a final order and judgment
ordering the return of the car to Schmalz and awarding Schmalz damages for the storage fees,
the rental value, and the attorney’s fees and costs incurred for having to file and litigate the
matter. The court also awarded postjudgment interest on the award until paid in full. The
“Final Order and Judgment” was filed on November 3, 2022.
On November 23, 2022, Ewing filed both a notice of appeal from the entry of the
default judgment and a motion for reconsideration and to set aside the default judgment.
5 The circuit court did not rule on the posttrial motion prior to the record being lodged with
this court.
II. Arguments on Appeal
On appeal, Ewing claims that a default judgment should not have been entered
because she timely “appeared” and sought to contest the action and that the equitable
doctrines of waiver and laches preclude Schmalz’s right to a default judgment. Ewing also
argues that the default here was largely technical, that Schmalz was not prejudiced by any
delay, and that there was a meritorious defense to the action; thus, the court erred in denying
her motion to set aside the default judgment. Finally, she argues that the trial court erred in
granting attorney’s fees because fees are not authorized in the type of case presented here.
Each of these arguments will be addressed in turn.
A. Entry of Default Judgment
Ewing’s first argument is a challenge to the circuit court’s entry of a default judgment
against her. Rule 55 of the Arkansas Rules of Civil Procedure provides, “When a party
against whom a judgment for affirmative relief is sought has failed to plead or otherwise
defend as provided by these rules, judgment by default may be entered by the court.” Ark.
R. Civ. P. 55(a). The standard of review for considering whether a default judgment was
properly granted is whether the circuit court abused its discretion. Gawenis v. Zelda Walls
Living Tr., 2022 Ark. App. 302; Briney v. Bauer, 2019 Ark. App. 227, 575 S.W.3d 631.
6 Ewing contends that a default judgment was not warranted in this case because she
appeared in the action and sought to contest it. As a result, she claims she satisfied the
“appear or otherwise defend” language of Rule 55. We disagree.
First, it should be noted that the language of Rule 55 was amended in 1999, and the
word “appear” was replaced with the word “plead.”2 Thus, the fact that Ewing appeared at
the December 1 hearing is immaterial as to whether a default judgment was appropriate.
Second, the reporter’s notes to Rule 55 state that the word “plead” in Rule 55(a) has
independent meaning from the phrase “otherwise defend” and that the latter is referring to
the filing of motions. Ark. R. Civ. P. 55 addition to reporter’s notes, 1999 amend.; see also
Ark. R. Civ. P. 7(a) & (b) (distinguishing between pleadings and motions); Tapp v. Fowler,
291 Ark. 309, 312–13, 724 S.W.2d 176, 178 (1987) (holding that a default judgment was
not proper against a defendant who had timely moved to dismiss pursuant to Arkansas Rule
of Civil Procedure 12(b), even if the defendant subsequently failed to file an answer after the
motion was denied).
Here, it is clear that Ewing did not “plead” or “otherwise defend” in this action (as
those terms are used in Rule 55) until her answer was filed on January 11, 2022—indisputably
2 This change was made in an effort to “eliminate potential confusion stemming from the fact that appearance is also relevant under subdivision (b), which requires notice of a hearing on a motion for default judgment if the party against whom the judgment is sought has appeared in the action.” Ark. R. Civ. P. 55 addition to reporter’s notes, 1999 amend. (internal quotation omitted).
7 beyond the time permitted for doing so. As a result, the circuit court was within its power
to grant a default judgment and did not abuse its discretion in doing so.
Ewing next argues that Schmalz waived her right to obtain a default judgment because
she waited ninety days after the default occurred to file her motion seeking a default
judgment and then waited nine months, until the day of trial, to seek a ruling on the motion.
Ewing claims that in the intervening period, she was forced to hire an attorney to investigate
and prepare for trial and that three witnesses had to travel two hours to attend the hearing.
As a result, she claims to have been significantly prejudiced by Schmalz’s delay in seeking a
default. Thus, she maintains that Schmalz either waived her right to obtain a default
judgment or her claim should be barred by the equitable doctrine of laches.
Here, Schmalz filed her motion for default judgment approximately three months
after Ewing’s untimely answer was filed. There is no evidence in the record that any action
was taken between the filing of the answer and the filing of the motion for default judgment.
When the time for filing of a response to the motion had passed and Ewing had not
responded, Schmalz contacted the court and asked the court to either enter an order granting
the default or set it for a hearing at the court’s earliest convenience. Once Ewing responded
to the motion, the court asked the parties to execute and return a joint pretrial report.
Schmalz completed her portion of the pretrial report, but Ewing again failed to timely
respond. Schmalz listed her request for the entry of default judgment as one of the
outstanding disputes remaining to be decided. Once Ewing eventually completed her
portion of the joint pretrial report, the court set the matter for hearing.
8 Again, Ewing’s claims have no merit. First, Rule 55 provides no time limit on making
a request for default judgment. Second, there is no evidence that Schmalz improperly sat on
her request for a default judgment. Schmalz filed her motion relatively soon after the answer
was filed and, when Ewing failed to respond, prepared a proposed order for the court to
enter and requested a hearing. The court set the matter for a hearing in October. No more
was required of Schmalz.
Regardless, Ewing has failed to show how she was prejudiced. While she claims to
have been forced to unnecessarily prepare for trial, a hearing on damages was still required
and was held immediately after the finding of default. Thus, it is unclear what prejudice was
suffered.
B. Denial of Motion to Set Aside Default Judgment
Ewing next argues that the trial court erred in denying her motion to set aside the
default judgment. For the reasons set forth below, this claim is premature.
Here, Ewing filed her motion for reconsideration and to set aside the default
judgment on November 23, 2022—more than ten days after the “Final Order and Judgment”
was entered. Unless a defendant has moved to set aside a default judgment within ten days
of its entry, which did not happen here, then Ark. R. App. P.–Civ. 4(b)(1)’s “deemed denied”
provision does not apply to the motion. Ascentium Cap., LLC v. Marshall, 2021 Ark. App. 94;
Skyridge Estates, LLC v. Ellis, 2018 Ark. App. 182. Here the circuit court did not rule on the
motion by written order before Ewing filed the appeal record with this court’s clerk. Because
the motion has not yet been adjudicated—whether by operation of law or by court order—
9 Ewing’s appellate arguments for why the default judgment should be vacated are premature.
Thus, without expressing any opinion on the merit of Ewing’s unadjudicated motion to set
the default judgment aside, we dismiss it for lack of jurisdiction.
C. Attorney’s Fees
Finally, Ewing argues that the trial court erred in awarding attorney’s fees because the
fees were not authorized by statute.3 She asserts that Arkansas Code Annotated section 16-
22-308 limits the award of attorney’s fees in civil actions to actions for breach of contract, an
open account, promissory notes, bills, and negotiable items. She states that cases for the
recovery of property are not included in the statute.
Ewing, however, did not properly develop this argument in the circuit court. At trial,
she simply asserted that our courts follow the “American rule”; that the court was not
required to award fees unless the action was a contract action; and that the fees were too
high. She did not argue, as she does here, that such fees are not authorized by statute and
were, thus, unrecoverable. It is well settled that a party cannot change the grounds for an
objection or motion on appeal but is bound by the scope and nature of the arguments made
at trial. Perrin-Reed v. Reed, 2022 Ark. App. 24, 640 S.W.3d 15.
3 The court in this case awarded Schmalz a total of $7084.27 for her costs and fees incurred “to compensate her for damages incurred as a result of having to file and litigate the present case.” Of that $7084.27, $6020 was attorney’s fees and $1064.27 was “costs.” While Ewing challenges the $7084.27 in “fees” the court awarded, her arguments challenge only the court’s award of attorney’s fees, not costs.
10 In the alternative, she argues that the court’s award of fees was too high. The decision
to award attorney’s fees and the amount to award is discretionary and will be reversed only
if the appellant can demonstrate that the circuit court abused its discretion. Harrill & Sutter,
PLLC v. Kosin, 2011 Ark. 51, at 17, 378 S.W.3d 135, 145. Here, Schmalz testified regarding
the amount of fees she incurred in her effort to recover the vehicle. To support her claim, a
bill for her attorney’s fees was admitted into evidence. Thus, because there was evidence
presented to support the court’s award, we cannot find that the court abused its discretion
when it determined the amount of fees to be awarded.
For the foregoing reasons, we affirm the court’s entry of default judgment and award
of attorney’s fees. However, because Ewing’s arguments regarding her motion to set aside are
premature, we dismiss without prejudice that portion of her appeal.
Affirmed in part; dismissed in part.
GRUBER and BROWN, JJ., agree.
The Firm, PLLC, by: S.L. Smith, for appellant.
Law Offices of Craig L. Cook, by: Brinkley Cook-Campbell, for appellee.