Darlette Ewing v. Lea Schmalz

2025 Ark. App. 495

• Court: Court of Appeals of Arkansas
• Decided: October 22, 2025
• Status: Published

Opinion

Cite as 2025 Ark. App. 495 ARKANSAS COURT OF APPEALS DIVISION I No. CV-24-520

DARLETTE EWING Opinion Delivered October 22, 2025

APPELLANT APPEAL FROM THE LOGAN COUNTY CIRCUIT COURT, V. NORTHERN DISTRICT [NO. 42PCV-21-95] LEA SCHMALZ APPELLEE HONORABLE TERRY SULLIVAN, JUDGE

AFFIRMED

CINDY GRACE THYER, Judge

Darlette Ewing appeals the Logan County Circuit Court’s order denying her motion

to set aside entry of a default judgment against her and in favor of Lea Schmalz. 1 She argues

that the court erred in denying her motion to set aside the default judgment because the

default was largely technical, Schmalz was not prejudiced by any delay, and there is a

meritorious defense to the action. Finding no error, we affirm.

1 This is the second time this case has been before us. In Ewing v. Schmalz, 2024 Ark. App. 127, 686 S.W.3d 25, we affirmed the circuit court’s grant of default judgment and its award of attorney’s fees. A complete recitation of the underlying facts of this case can be found in our earlier opinion. See id. This is a dispute over a 1979 Chevrolet Corvette. The car was originally titled in the

name of “Schluterman, Frank Edward or Schmalz, Lea.” When Frank died in November

2020, the Corvette was in the possession of his daughter, Darlette Ewing.

On October 4, 2021, Schmalz, claiming to be the car’s rightful owner, 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. Ewing was served

with the complaint but failed to file a timely answer. 2

Schmalz subsequently moved for a default judgment. The court granted the motion,

and after a hearing on damages, entered a final order and judgment ordering the return of

the car to Schmalz and awarding Schmalz damages. The court also awarded Schmalz

attorney’s fees and costs.

Ewing moved for reconsideration and asked for the default judgment to be set aside.

She argued that the equitable doctrines of waiver and laches precluded Schmalz’s right to a

default judgment. She further claimed that the default was largely technical; that Schmalz

was not prejudiced by any delay; that she was ready to defend and had been defending the

action; and that she had a meritorious defense to the action—ownership of the car.

The circuit court denied Ewing’s motion to set aside the default judgment in April

2024. Ewing filed a timely notice of appeal from that order, claiming that the circuit court

erred in denying her motion to set aside the default judgment.

2 The answer was filed approximately twelve days late.

2 Despite default judgments being disfavored by courts, issuing a default judgment

when a defendant fails to timely respond to a complaint under Arkansas Rule of Civil

Procedure 55 is not an error of law or against the preponderance of the evidence. Comeau v.

Still, 2025 Ark. App. 429. However, the court may still, 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 intrinsic or extrinsic),

misrepresentation, or other misconduct of an adverse party; or (4) any other reason justifying

relief from the operation of the judgment. Ark. R. Civ. P. 55(c).

Our standard of review from an order denying a motion to set aside a default

judgment depends on the grounds upon which the appellant is claiming that the default

judgment should be set aside. Comeau, supra; Steward v. Kuettel, 2014 Ark. 499, 450 S.W.3d

672. When the appellant claims that the default judgment is void, the matter is a question

of law, which we review de novo and give no deference to the circuit court’s ruling. Id. In all

other cases where we review a motion to set aside a default judgment, we do not reverse

absent an abuse of discretion. Id. Because Ewing has not claimed that the default judgment

is void, we review the circuit court’s decision in this case for an abuse of discretion.

When a party opposes a motion for default judgment, a showing of one of the four

enumerated reasons in Rule 55(c) is a “threshold” matter that must be satisfied before

considering whether the defaulting party has a meritorious defense. In Nissan North America,

Inc. v. Harlan, 2017 Ark. App. 203, at 8–9, 518 S.W.3d 89, 95, this court held that Rule

55(c) “requires a two-step analysis before a defaulting defendant can succeed in having a

3 default judgment set aside,” and the first step is demonstrating “that one of the four

enumerated categories of legally acceptable reasons or excuses existed to justify setting aside

the default judgment.” When the threshold issue is not met, this court will not reach the

second step of the analysis. Id.

On appeal, Ewing asserts that the circuit court erred in denying her motion to set

aside, arguing, first, that the late filing of her answer was the result of a mistake on her part

and, second, that she has a meritorious defense to the action. More specifically, she claims

that she believed the circuit court had extended the time for filing the answer when it

continued the initial hearing so that she could retain counsel. She claims such a mistake was

sufficient to support the setting aside of the default judgment under Rule 55(c)(1). As for

her meritorious defense, she claims that her father, Frank, gave her the car and that her

claimed ownership in the car constitutes a meritorious defense. Neither argument supports

her claim that the circuit court abused its discretion in denying the motion to set aside.

First, the court’s order continuing the hearing specifically instructed Ewing to review

the summons and complaint and to direct her actions accordingly. The summons clearly

informed Ewing that she must file a written answer to the complaint within thirty days of

the service of the summons. She did not do so.

Ewing claims her failure to timely answer the complaint was the result of an honest,

excusable mistake. However, the record reveals she also failed to meet other deadlines—her

response to the motion for default judgment was untimely as was her filing of the pretrial

report. There has been no explanation for these lapses. Given Ewing’s continued failure to

4 meet other court-related deadlines, the court could have simply determined that her excuse

for the late filing of her answer was not credible. This court shall give due regard to the

opportunity of the circuit court to judge the credibility of witnesses. Ark. R. Civ. P. 52(a).

Regardless, even if this court were to decide that Ewing had satisfied her burden of

proving that her failure was the type of excusable mistake for which a default judgment could

be set aside, she has failed to prove the existence of a meritorious defense. Ewing asserted

below and on appeal that her father gave her the vehicle, yet she provided no evidence that

he ever transferred title to her. In fact, in her answer in which she claimed ownership of the

Corvette, she attached a photograph of a title in which her father allegedly signed the vehicle

over to someone named Toby Tygart. There are also text messages in the record in which

someone claiming to be Ewing’s husband states that Ewing’s father had signed the car over

to him. Thus, Ewing’s claim of ownership is unsupported by the record and is rebutted in

part by evidence she, herself, introduced. A naked allegation that a party has a meritorious

defense does not warrant setting aside a default judgment. See Roe v. Somach, 2024 Ark. App.

527, 699 S.W.3d 749. Thus, Ewing has failed in her burden of proof on this prong as well.

In light of the foregoing, the circuit court did not abuse its discretion in denying

Ewing’s motion to set aside. Accordingly, we affirm.

Affirmed.

BARRETT and WOOD, JJ., agree.

The Firm, PLLC, by: S.L. Smith, for appellant.

Law Offices of Craig L. Cook, by: Brinkley Cook-Campbell, for appellee.