{ "id": 1655438, "name": "C. W. RICHARDSON, Individually; Greg Richardson, Individually; and CWR Construction, Inc. v. Carl and Norlene RODGERS", "name_abbreviation": "Richardson v. Rodgers", "decision_date": "1998-10-29", "docket_number": "97-1476", "first_page": "606", "last_page": "613", "citations": [ { "type": "official", "cite": "334 Ark. 606" }, { "type": "parallel", "cite": "976 S.W.2d 941" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "307 Ark. 316", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1902488 ], "weight": 4, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/307/0316-01" ] }, { "cite": "561 S.W.2d 281", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1675856, 1675893 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/262/0718-01", "/ark/262/0693-01" ] }, { "cite": "262 Ark. 693", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1675893 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/262/0693-01" ] }, { "cite": "8 Ark. 177", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8727104 ], "year": 1847, "opinion_index": 0, "case_paths": [ "/ark/8/0177-01" ] }, { "cite": "264 Ark. 810", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1669043 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/264/0810-01" ] }, { "cite": "275 Ark. 225", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1753604 ], "weight": 2, "year": 1982, "pin_cites": [ { "parenthetical": "citing Allied Chemical Corp. v. Van Buren School Dist. No. 42, 264 Ark. 810, 575 S.W.2d 445 (1979); and Bruton et al v. Gregory, 8 Ark. 177 (1847)" }, { "parenthetical": "citing Allied Chemical Corp. v. Van Buren School Dist. No. 42, 264 Ark. 810, 575 S.W.2d 445 (1979); and Bruton et al v. Gregory, 8 Ark. 177 (1847)" } ], "opinion_index": 0, "case_paths": [ "/ark/275/0225-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-9-105", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1996, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "333 Ark. 170", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 703809 ], "weight": 5, "year": 1998, "pin_cites": [ { "page": "174" }, { "page": "174-75" }, { "page": "907-08" } ], "opinion_index": 0, "case_paths": [ "/ark/333/0170-01" ] }, { "cite": "299 Ark. 126", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888343 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/299/0126-01" ] }, { "cite": "304 Ark. 35", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1881033 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/304/0035-01" ] }, { "cite": "319 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453561 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/319/0001-01" ] }, { "cite": "962 S.W.2d 349", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1604762, 377543 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "351-52" } ], "opinion_index": 0, "case_paths": [ "/ark/331/0386-01", "/ark/332/0372-01" ] }, { "cite": "331 Ark. 386", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604762 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "392-93" } ], "opinion_index": 0, "case_paths": [ "/ark/331/0386-01" ] }, { "cite": "329 Ark. 402", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 236166 ], "weight": 3, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/329/0402-01" ] } ], "analysis": { "cardinality": 674, "char_count": 13447, "ocr_confidence": 0.765, "pagerank": { "raw": 2.060548277848008e-07, "percentile": 0.7564923669295005 }, "sha256": "0e07ba35f5c6d068b85a8dcb84e64c577e72d7e78c491d76044fc467d572d8ca", "simhash": "1:0308186f62cee561", "word_count": 2182 }, "last_updated": "2023-07-14T20:44:18.632081+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Imber, J., not participating." ], "parties": [ "C. W. RICHARDSON, Individually; Greg Richardson, Individually; and CWR Construction, Inc. v. Carl and Norlene RODGERS" ], "opinions": [ { "text": "Tom Glaze, Justice.\nThis is the second appeal in this case, which concerns the entry of a default judgment against C.W. Richardson, individually, Greg Richardson, individually, and CWR Construction, Inc. (collectively referred to as \u201cRichardson\u201d). Previously, this Court dismissed Richardson\u2019s appeal for faEure to comply with Ark. R. Civ. P. 54(b). Richardson v. Rodgers, 329 Ark. 402, 947 S.W.2d 778 (1997). In that apped, the record faded to disclose the disposition of American States Insurance Company\u2019s complaint in intervention. Id. FoEowing our decision, the trid court dismissed American without prejudice. Thus, because the rights of aE parties have now been adjudicated, and the deficiency as to Rule 54(b) cured, we have jurisdiction to entertain Richardson\u2019s apped pursuant to Ark. Sup. Ct. R. 1-2(a)(7) (1998). A brief recitation of the facts is necessary before examining the merits of Richardson\u2019s apped.\nOn November 9, 1995, Carl and Norlene Rodgers filed a complaint against Richardson and Centrd Arkansas Risk Management (\u201cCARM\u201d) aEeging negligence. The complaint provided that in May 1994, Carl was seriously injured by a fading water pipe whEe working on renovating the Pulaski County Courthouse. At the time, Carl was employed by IK Electric Service Co., a subcontractor on the project. Richardson was the generd contractor. Norlene requested $1,000,000 in damages for loss of consortium, and Carl prayed for compensatory damages in the amount of $4,000,000. Paragraph 16 of the complaint asserted that \u201cthe conduct of the Defendants, . . . was wiEful, wanton, reckless, and done with conscious indifference . . . thereby entitling Plaintiffs to punitive damages.\u201d Carl asked for $4,000,000 and Norlene for $1,000,000 in punitive damages.\nCARM filed a timely answer to the Rodgerses\u2019 complaint. In addition to denying that it was the insurer for Pulaski County, CARM denied the existence of the alleged facts surrounding Carl\u2019s injury. CARM further stated that neither Richardson nor the County was negligent. It also denied that Carl and Norlene were injured or that they were entitled to compensatory or punitive damages. The last paragraph of CARM\u2019s answer provided that \u201ceach and every material allegation of the Complaint not specifically admitted herein\u201d was denied. Co-defendant Richardson, however, failed to answer the Rodgerses\u2019 complaint.\nOn December 13, 1995, the Rodgerses filed an affidavit with the trial court for a default judgment against Richardson on the basis that Richardson had faded to file an answer or to otherwise respond to the complaint. Two days later, the Rodgerses voluntarily nonsuited the claim against CARM. The trial court conducted a hearing on the default judgment motion, on the issue of damages only, and awarded Carl $1,450,000, and Norlene $50,000 against Richardson.\nRichardson moved to set aside the default judgment, arguing that because CARJVI\u2019s answer denied every allegation of negligence, its answer should inure to Richardson\u2019s benefit. Citing to Ark. R. Civ. P. 55(c)(4), Richardson contended that CARJVI\u2019s answer provided \u201cany other reason justifying relief from the operation of judgment.\u201d Richardson additionally argued it had a meritorious defense to the Rodgerses\u2019 claim because it was. not negligent, and also because it was entitled to the protection of the exclusivity clause in the Workers\u2019 Compensation Code. See Ark. Code Ann. \u00a7 ll-9-105(a) (Repl. 1996). Without a hearing on the matter, the trial court denied Richardson\u2019s motion, finding that \u201c[n]o justifiable excuse for the failure to file a timely answer was presented.\u201d The trial court further found that Richardson had failed to demonstrate a meritorious defense.\nAs described above, Richardson appealed the denial of its motion to set aside the default judgment to this Court, and based on Ark. R. Civ. P. 54(b), we dismissed its appeal, leaving Richardson free to return to the trial court. Richardson did so and filed a motion for the trial court to reconsider its earlier denial of Richardson\u2019s motion to set aside the default judgment awarded Carl and Norlene Rodgers. Richardson argued that the trial court\u2019s prior order refusing to set aside the Rodgerses\u2019 default judgment was not a final judgment when it was entered. Richardson further argued that the trial court\u2019s earlier order was inconsistent with Arkansas law. Richardson also submitted that the Rodgerses\u2019 prior nonsuit of CARM\u2019s claim from their lawsuit did not affect the application of the common defense doctrine, and therefore, CARM\u2019s answer inured to Richardson\u2019s benefit. Richardson asserted the Rodgerses wrongly relied on Rule 55(c)(1), which requires mistake, inadvertence, surprise, or excusable neglect to set aside a default judgment.\nThe Rodgerses responded that Richardson\u2019s motion was precluded by the doctrine of the law of the case, and that Richardson could and should have raised its arguments in the first appeal to this court. The Rodgerses claim Richardson failed to incorporate those arguments in its first appeal, so it was barred from doing so when the case was dismissed and refiled in the trial court. Richardson responded that its arguments were the same ones it presented in its first appeal and brief filed with our court. The trial court again agreed with the Rodgerses, and denied Richardson\u2019s motion to reconsider. Richardson, once more, appeals the trial court\u2019s entry of the default judgment awarded the Rodgerses.\nRichardson essentially presents one argument for reversal \u2014 the trial court improperly applied Arkansas law when it refused to set aside the default judgment entered in this case. In support of its contention, Richardson submits the trial court incorrectly interpreted and applied Ark. R. Civ. P. 55(c). Also, says Richardson, by misapplying Rule 55(c), the trial court erred further by requiring Richardson to present a \u201cmeritorious defense.\u201d Because we agree with Richardson that Rule 55(c) is inapplicable in cases where the common defense doctrine is invoked, we hold that the trial court erred when it entered a default judgment in the Rodgerses\u2019 behalf.\nWe first consider the Rodgerses\u2019 argument that the law of the case precludes arguments now made by Richardson. Recently in Vandiver v. Banks, 331 Ark. 386, 962 S.W.2d 349 (1998), we explained the doctrine of the law of the case as follows:\nOn second appeal, as in this case, the decision of the first appeal becomes law of the case, and is conclusive of every question of law or fact decided in the former appeal, and also of those which might have been, but were not presented, [citation omitted]. The doctrine of the law of the case, stated in other terms, prevents an issue raised in a prior appeal from being raised in a subsequent appeal unless the evidence materially varies between the two appeals, [citation omitted].\n331 Ark. at 392-93; 962 S.W.2d at 351-52. Similarly, in McDonald\u2019s Corp. v. Hawkins, 319 Ark. 1, 888 S.W.2d 649 (1994), Chief Justice Holt wrote, \u201cAn argument that could have been raised in the first appeal and is not made until a subsequent appeal is barred by the law of the case.\u201d See also Willis v. Estate of Adams, 304 Ark. 35, 799 S.W.2d 800 (1990); and Alexander v. Chapman, 299 Ark. 126, 771 S.W.2d 744 (1989). The Rodgerses contend that the doctrine applies, because after we dismissed the Richardson\u2019s appeal the first time, Richardson presented new arguments to the trial court in its motion to reconsider the refusal to set aside the default judgment. The Rodgerses suggest those new arguments either were or could have been raised in the first appeal.\nThe Rodgerses\u2019 reliance on the doctrine is misplaced because the doctrine only applies to a second appeal where there has been a \u201cdecision\u201d in the first appeal. See Vandiver v. Banks, supra. Since the original appeal in this matter was dismissed for jurisdictional reasons under Ark. R. Civ. P. 54(b), this court never addressed the merits of Richardson\u2019s first appeal and made no \u201cdecision\u201d as to the outcome of the case.\nTurning to the merits of the instant appeal, this court is called on to decide whether Ark. R. Civ. P. 55(c) and its requirements control in cases where the common defense doctrine is applicable. In 1990, Rule 55 was substantially revised, so that more cases would be decided on the merits instead of upon the technicalities that often lead to default judgment. Southern Transit Co. v. Collums, 333 Ark. 170, 174, 966 S.W.2d 906 (1998). One of the changes was to make the grant of default judgment under Rule 55(a) discretionary rather than mandatory. Id. Most recently, in Southern Transit, we set forth the requirements a defendant must satisfy in order to set a default judgment aside: (1) the defendant must show one of the four enumerated categories of reasons in Rule 55(c) to have the judgment set aside; and (2) if the reason is any other than that the judgment is void, a defaulting defendant must then demonstrate a meritorious defense to the action. 333 Ark. at 174-75; 966 S.W.2d at 907-08. Richardson contends it fulfilled the two-prong test of Rule 55(c) by satisfying 55(c)(4) and by showing that, in common-defense cases, a meritorious defense need not be proven, or alternatively, if a defense is required, that it comes within the Workers\u2019 Compensation Employer Immunity Provision in Ark. Code Ann. \u00a7 11-9-105(a) (Repl. 1996). What neither party recognizes, though, is that there is a difference between a trial court\u2019s decision to enter a default judgment and its refusal to set one aside. Rule 55(c) contemplates a circumstance where a default judgment has been entered properly. Rule 55(c) does not govern when the trial court improperly enters a default judgment by fading to recognize clear authority in an area. In this case, the area of clear authority is that of the common defense doctrine.\nIt has been settled in this State for almost a century and a half that the answer of one co-defendant inures to the benefit of the other co-defendants. See Aldridge v. Watling Ladder Co., 275 Ark. 225, 628 S.W.2d 322 (1982)(citing Allied Chemical Corp. v. Van Buren School Dist. No. 42, 264 Ark. 810, 575 S.W.2d 445 (1979); and Bruton et al v. Gregory, 8 Ark. 177 (1847)). The test for determining if an answer will inure to a co-defendant\u2019s benefit is whether the answer of the non-defaulting defendant states a defense that is common to both defendants, because then \u201ca successful plea . . . operates as a discharge to all the defendants, but it is otherwise where the plea goes to the personal discharge of the party interposing it.\u201d Southland Mobile Home Corp. v. Winders, 262 Ark. 693, 561 S.W.2d 281 (1978); see also Arnold Fireworks Display v. Schmidt, 307 Ark. 316, 820 S.W.2d 444 (1991).\nHere, the Rodgerses\u2019 complaint alleged that Richardson and its employees, and the agents of Pulaski County were negligent, and that their negligence was the cause of Carl\u2019s injuries. While the complaint did set out the allegations of negligence against Richardson in a separate paragraph from the allegations of negligence directed toward the County, CARM\u2019s answer denied every paragraph of the complaint. Also, in paragraph 18 of its answer, CARM made a general denial stating, \u201c[CARM] denies, generally and specifically, each and every material allegation of the Complaint not specifically admitted herein.\u201d Clearly, CARM\u2019s answer denied not only the existence of the Rodgerses\u2019 cause of action, but also asserted a defense common to both Richardson and CARM.\nNext, we turn to Ark. R. Civ. P. 55(a), which reads as follows:\n(a) When Entitled. When a party against whom a judgment for affirmative relief is sought has failed to appear or otherwise defend as provided by these rules, judgment by default may be entered by the court.\n(Emphasis added.) In this case, Richardson did appear and defend by virtue of CAPM\u2019s timely answer, which inured to Richardson\u2019s benefit under the common-defense doctrine. As just explained, CARM\u2019s defense is substituted for Richardson\u2019s failure to file a separate timely answer. Although the Rodgerses\u2019 argue passionately some eleven cases where this court repeatedly upheld the trial court\u2019s discretion where a default judgment was granted, we merely note that ten of those decisions invoked Rule 55(c) where excusable neglect was argued. As just discussed, we conclude here that Rule 55(c) and the requirement of excusable neglect are not invoked or applicable. One case the Rodgerses\u2019 cite, Arnold Fireworks Display, Inc. v. Schmidt, 307 Ark. 316, 820 S.W.2d 444 (1991), mentions the common-defense doctrine where a default judgment was entered, but that was a situation where we held the doctrine did not apply. In conclusion, none of these cases offered by the Rodgerses are applicable to the facts here.\nFor the above reasons, we hold it was error for the trial court to enter a default judgment against Richardson and further error to refuse to set it aside upon Richardson\u2019s motion.\nThe judgment is reversed and the cause remanded.\nImber, J., not participating.", "type": "majority", "author": "Tom Glaze, Justice." } ], "attorneys": [ "Anderson, Murphy & Hopkins, L.L.P., by: Randy Murphy, for appellants.", "Grayson, Holleman & Grayson, P.A., by: John T. Holleman IV, and Boswell, Tucker & Brewster, by: Ted Boswell, for appellees." ], "corrections": "", "head_matter": "C. W. RICHARDSON, Individually; Greg Richardson, Individually; and CWR Construction, Inc. v. Carl and Norlene RODGERS\n97-1476\n976 S.W.2d 941\nSupreme Court of Arkansas\nOpinion delivered October 29, 1998\nAnderson, Murphy & Hopkins, L.L.P., by: Randy Murphy, for appellants.\nGrayson, Holleman & Grayson, P.A., by: John T. Holleman IV, and Boswell, Tucker & Brewster, by: Ted Boswell, for appellees." }, "file_name": "0606-01", "first_page_order": 632, "last_page_order": 639 }