Monsanto Co. v. Wilson

2014 Ark. App. 241

• Court: Court of Appeals of Arkansas
• Decided: April 23, 2014
• Docket: CV-14-42
• Status: Published

Opinion

Cite as 2014 Ark. App. 241

ARKANSAS COURT OF APPEALS DIVISION I No. CV-14-42

Opinion Delivered April 23, 2014 MONSANTO COMPANY APPELLANT APPEAL FROM THE WOODRUFF COUNTY CIRCUIT COURT V. [NO. CV-2012-18]

NICHOLAS EMMETT WILSON and HONORABLE RICHARD L. GREEN ACRES FARMS, LLC PROCTOR, JUDGE APPELLEES

APPEAL DISMISSED

BILL H. WALMSLEY, Judge

Appellant Monsanto Company appeals from the trial court’s order setting aside its

default judgment against appellees and dismissing its complaint for failure to perfect service.

We must dismiss the appeal because there is no final order.

Monsanto filed suit against Nicholas Wilson on March 8, 2012, making several claims

arising out of a soybean-seed-grower contract. On May 17, 2012, Monsanto filed an affidavit

in support of warning order, claiming that it had been unable to personally serve Wilson

because it could not determine his whereabouts. A warning order was issued by the clerk.

On June 25, 2012, Monsanto filed an affidavit of service by warning order and a motion for

default judgment, alleging that Wilson was served by publication, that no answer had been

filed, and that Monsanto was owed $35,491.13. The trial court entered the default judgment

on July 11, 2012, awarding Monsanto the principal sum, prejudgment interest, costs, an Cite as 2014 Ark. App. 241

attorney’s fee, and postjudgment interest.

On May 9, 2013, Wilson filed a motion to set aside the default judgment for

insufficient service of process. He alleged that service by warning order was not justified

because Monsanto had not made a diligent attempt to perfect personal service. After a hearing

on the motion, the trial court found that Monsanto had not strictly complied with the

requirements for service. The trial court entered its order on October 7, 2013, finding that

the default judgment should be set aside. The court further found that service of process had

not been perfected within 120 days and dismissed the case. Monsanto filed a timely notice

of appeal.

The question of whether an order is final and subject to appeal is a jurisdictional

question that this court will raise on its own. Carroll v. Baker, 2011 Ark. 98. Orders setting

aside default judgments are not final for purposes of appeal where the setting-aside paves the

way for a trial on the merits. Littleton v. Albert-Littleton, 89 Ark. App. 325, 202 S.W.3d 563

(2005). Furthermore, an order of dismissal without prejudice pursuant to Arkansas Rule of

Civil Procedure 4(i) for failure to make service on the defendant within 120 days is also not

final. The supreme court in Carroll held as follows:

Rule 4(i) is mandatory; where service is not made on a defendant within 120 days of the filing of the complaint, a circuit court must dismiss the action without prejudice to refiling those claims. See Jordan, 366 Ark. 326, 235 S.W.3d 487. Because a plaintiff who has his case dismissed without prejudice under Rule 4(i) may refile those claims, his position after the dismissal is no different than that of a plaintiff who voluntarily nonsuits his claims. It therefore logically follows from our rationale in Jordan that a first dismissal under Rule 4(i) does not function as an adjudication on the merits, and the order dismissing a plaintiff’s claims without prejudice under 4(i) would not be a final appealable order based on a logical extension of our reasoning in Beverly Enterprises-Arkansas, Inc.

2 Cite as 2014 Ark. App. 241

Id. at 4. The supreme court dismissed the appeal upon concluding that it was not taken from

a final, appealable order.

Here, the order being appealed sets aside Monsanto’s default judgment then dismisses

Monsanto’s complaint for failure to perfect service within 120 days. As stated above, a first

dismissal for failure to serve under Rule 4(i) is not a final, appealable order. Thus, we dismiss

the appeal.

Appeal dismissed.

WOOD and BROWN, JJ., agree.

The Key Firm, PLLC, by: Shawn Key, for appellant.

No response.