Miller v. Transamerica Commercial Finance Corp.

47 S.W.3d 288, 74 Ark. App. 237, 2001 Ark. App. LEXIS 513
CourtCourt of Appeals of Arkansas
DecidedJune 20, 2001
DocketCa 00-1465
StatusPublished
Cited by5 cases

This text of 47 S.W.3d 288 (Miller v. Transamerica Commercial Finance Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Miller v. Transamerica Commercial Finance Corp., 47 S.W.3d 288, 74 Ark. App. 237, 2001 Ark. App. LEXIS 513 (Ark. Ct. App. 2001).

Opinion

John Mauzy Pittman, Judge.

Appellant Patrick Miller appeals from the trial court’s denial of his motion to set aside a default judgment. He makes several arguments, none of which have merit. We therefore affirm.

Patrick Miller was president and a shareholder of Diamond Lakes Marine, Inc. Diamond Lakes was engaged in the business of selling boats and other marine equipment in Garland County. Its inventory financing was provided by appellee Transamerica Commercial Finance Corporation by virtue of a 1997 inventory security agreement. The agreement provided that appellee would advance money to Diamond Lakes to acquire inventory and that Diamond Lakes would grant appellee a security interest in the inventory and other items.

On the same day that the corporation executed the inventory security agreement, appellant and his wife, Terri Miller, executed a guaranty contract that permitted appellee to proceed against them should Diamond Lakes default on its obligations. Such a default occurred in 1999, causing appellee to file suit against the Millers, Diamond Lakes, and another marine dealer, North Malvern Marine. The complaint sought repossession of collateral from Diamond Lakes and North Malvern Marine and judgment for $2,809,907.33 against the Millers on their guaranty agreement. As an exhibit to the complaint, appellee appended an exhibit labeled “Outstandings,” consisting of approximately 450 inventory items totaling over $2.6 million in value. Appellee also filed, contemporaneously with the complaint, the affidavit of its regional manager Bryan Alsobrooks, the person responsible for the Diamond Lakes account. Alsobrooks stated that Diamond Lakes was in default in the amount of $2,809,907.33, and was in possession of collateral believed to have a value of $2,607,881.52.

Within ten days of the lawsuit being filed, Diamond Lakes filed for bankruptcy. The Millers never answered the complaint. As a result, a default judgment was entered against them on July 26, 1999, for $2,701,708.72 (certain credits were allowed). On September 16, 1999, Patrick Miller moved to set aside the default judgment. The trial court refused to do so, and Miller appeals from that ruling.1

When a party against whom a judgment for affirmative relief is sought fails to plead or otherwise defend as provided by the Rules of Civil Procedure, a default judgment may be entered against him. See Ark. R. Civ. P. 55(a). Default judgments are not favorites of the law and should be avoided when possible. B&F Engineering v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992). When a trial judge denies a motion to set aside a default judgment, we must determine on appeal whether the trial judge abused his discretion. See id.

Appellant argues first that the default judgment entered against him is void because appellee failed to serve him with the summons and complaint. He bases his argument on an affidavit in which he stated that he had no recollection of being served and did not believe he was personally served. Default judgments rendered without proper service are judgments rendered without jurisdiction, and are therefore void. See Lawson v. Edmondson, 302 Ark. 46, 786 S.W.2d 823 (1990); Wilburn v. Keenan Cos., Inc., 298 Ark. 461, 768 S.W.2d 531 (1989).

We hold that there was sufficient evidence in this case to prove that appellant was served. Appellant did not appear and testify at the hearing on his motion, but the deputy who served him did, and he testified as follows:

Q.: Do you know a gentleman named Patrick Miller?
A.: Yes, I do.
Q.: I’m showing you from the Court file here a document that purports to be a summons to Patrick Miller. Could you tell me if you’ve seen this document before?
A.: Yes, I have.
Q.: Okay, and what were the circumstances?
A.: I served Mr. Patrick Miller a copy of this on the 22nd of June at 10:40 a.m. and I have signed it.
Q.: Okay, and do you recall doing this?
A.: Yes, sir, I do.
Q.: Okay, and was it just this one page or what was with this?
A.: It was a Restraining Order...
Q.: Was there a complaint with it?
A.: ... and a complaint. Yes, sir.

The deputy’s testimony that he served the complaint and summons on Miller was unequivocal. Whether his testimony was believable was a matter for the trial judge to decide. The judge obviously found the deputy to be a credible witness, and we defer to his superior ability in that regard. See Eagle Bank & Trust Co. v. Dixon, 70 Ark. App. 146, 15 S.W.3d 695 (2000). Appellant attempts to reduce the impact of the deputy’s testimony by pointing out that, on cross-examination, he stated that he had served appellant so many times that he could not identify each and every instance. That testimony does little to impeach the deputy’s precise recollection of his service upon appellant in this instance.

Appellant also contends that the default judgment should have been set aside because appellee failed to serve him with Bryan Alsobrooks’s affidavit. It is true that the affidavit was not served on appellant, though it should have been, pursuant to Ark. R. Civ. P. 5(a).2 However, appellant is unable to show how appellee’s failure to serve him with this affidavit justifies relief from the operation of the default judgment. He points to nothing in Ark. R. Civ. P. 55 or Arkansas case law to the effect that failure of a plaintiff to serve any papers filed after the complaint requires a default judgment to be set aside. Additionally, there is nothing in the affidavit that could not have been gleaned from the complaint that was served on appellant on June 22. The affidavit, like the complaint, stated that Diamond Lakes was in default in the amount of $2,809,907.33, and both referred to the possibility that a deficiency judgment could exist upon the sale of collateral. Thus, appellant has not shown how appellee’s failure to serve the affidavit on him affected the entry of the default judgment. We do not consider assignments of error that are unsupported by convincing authority or argument. Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998).

The sufficiency of the Alsobrooks affidavit, as proof of damages, is also challenged by appellant. Generally, a default judgment establishes liability but not the extent of damages. See Tharp v. Smith, 326 Ark. 260, 930 S.W.2d 350 (1996). Thus, proof must be presented as to the amount of damages. Id.

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Bluebook (online)
47 S.W.3d 288, 74 Ark. App. 237, 2001 Ark. App. LEXIS 513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-transamerica-commercial-finance-corp-arkctapp-2001.