{ "id": 1240936, "name": "Joshua SUTTER v. Mary Lou Sutter PAYNE and Cora Sue Sutter West", "name_abbreviation": "Sutter v. Payne", "decision_date": "1999-04-22", "docket_number": "98-1023", "first_page": "330", "last_page": "338", "citations": [ { "type": "official", "cite": "337 Ark. 330" }, { "type": "parallel", "cite": "989 S.W.2d 887" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "143 S.E.2d 286", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "31 S.W.2d 21", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 8736204 ], "year": 1930, "opinion_index": 0, "case_paths": [ "/mo/326/0133-01" ] }, { "cite": "67 N.E.2d 317", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1946, "opinion_index": 0 }, { "cite": "231 N.E.2d 157", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "356 N.E.2d 164", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "25 S.W. 504", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1894, "opinion_index": 0 }, { "cite": "58 Ark. 490", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1329190 ], "year": 1894, "opinion_index": 0, "case_paths": [ "/ark/58/0490-01" ] }, { "cite": "65 S.W.2d 9", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1933, "opinion_index": 0 }, { "cite": "188 Ark. 149", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1428292 ], "year": 1933, "opinion_index": 0, "case_paths": [ "/ark/188/0149-01" ] }, { "cite": "309 Ark. 175", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906026 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/309/0175-01" ] }, { "cite": "335 Ark. 209", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 862794 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/335/0209-01" ] }, { "cite": "65 Ark. App. 13", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136369 ], "weight": 3, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark-app/65/0013-01" ] }, { "cite": "258 Ark. 394", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1621204 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/ark/258/0394-01" ] }, { "cite": "289 Ark. 436", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875336 ], "weight": 2, "year": 1986, "pin_cites": [ { "parenthetical": "supplemental opinion granting rehearing" }, { "parenthetical": "supplemental opinion granting rehearing" } ], "opinion_index": 0, "case_paths": [ "/ark/289/0436-01" ] }, { "cite": "561 S.W.2d 280", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1978, "opinion_index": 0 }, { "cite": "262 Ark. 693", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1675893 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/262/0693-01" ] }, { "cite": "307 Ark. 316", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1902488 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/307/0316-01" ] }, { "cite": "334 Ark. 606", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1655438 ], "weight": 5, "year": 1998, "pin_cites": [ { "parenthetical": "containing a general denial of all material allegations in the complaint, and an assertion that the plaintiffs suffered no damages" } ], "opinion_index": 0, "case_paths": [ "/ark/334/0606-01" ] }, { "cite": "336 Ark. 155", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 51244 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/336/0155-01" ] }, { "cite": "336 Ark. 406", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 51314 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/336/0406-01" ] } ], "analysis": { "cardinality": 654, "char_count": 14041, "ocr_confidence": 0.777, "pagerank": { "raw": 2.0299311789319058e-07, "percentile": 0.7464570328231491 }, "sha256": "feaacf28315853a79616e0a2038c595214d05b766bbb36bdbb4f3f5a2d9a5b59", "simhash": "1:3a25b6cd700e86d4", "word_count": 2285 }, "last_updated": "2023-07-14T14:46:43.806602+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Joshua SUTTER v. Mary Lou Sutter PAYNE and Cora Sue Sutter West" ], "opinions": [ { "text": "Annabelle Clinton Imber, Justice.\nThis case involves a novel issue of civil procedure regarding the common-defense doctrine. The trial court ruled that the appellant, Joshua Sutter, could not benefit from the answer timely filed by his co-defendant, Luther O\u2019Neal Sutter, because Luther voluntarily withdrew his pleadings. We reverse and remand.\nLuther S. Sutter died testate leaving the appellees, Mary Lou Sutter Payne and Cora Sue Sutter West, as the co-executors of his estate. On December 26, 1996, Ms. Payne and Ms. West filed a declaratory-judgment action asking the court to determine the validity of an inter vivos trust created during the decedent\u2019s lifetime. The defendants listed on the complaint were William Howard Payne, Joshua Sutter, De\u2019 Shawn Robinson, Luther Sutter, and Clayla Hicks.\nOn January 16, 1997, separate defendant Luther Sutter filed a pro se motion to dismiss and a motion to make more definite and certain. In this pleading, Luther Sutter alleged, among other things, that the petition for declaratory judgment should be dismissed because the court did not have jurisdiction, venue was improper, and the plaintiffs failed to state a claim upon which relief could be granted. Five days later, separate defendant Clayla Hicks filed an answer, which included a general denial of each and every material allegation set forth in the petition. The remaining co-defendants did not answer the petition.\nOn June 20, 1997, Ms. Payne and Ms. West filed an amended petition for declaratory judgment. Luther Sutter responded by filing an answer on June 26, 1997. In addition to several substantive defenses, Luther Sutter\u2019s answer included a general denial of each and every material allegation set forth in the petition for declaratory judgment. Neither Clayla Hicks nor the remaining co-defendants filed an answer to the amended petition. Sometime thereafter, Luther Sutter allegedly settled his claim against Ms. Payne and Ms. West for $20,000.\nOn December 22, 1997, separate defendant Joshua Sutter, a Georgia resident, filed an answer to the original and amended petitions for declaratory judgment. Several days later, on December 27, Luther Sutter filed a motion to withdraw his answer and all other pleadings filed on his behalf. The court granted the motion on the same day.\nOn January 27, 1998, Clayla Hicks filed a motion to strike Joshua Sutter\u2019s answer as untimely. In her motion, Clayla Hicks asserted that Joshua was served with the petition on January 4, 1997, and the amended petition on June 23, 1997, but he did not answer either petition until December 22, 1997, which was well beyond the thirty-day limitation for out-of-state residents found in Ark. R. Civ. P. 12. In his response to the motion to strike, Joshua asserted the common-defense doctrine by claiming that he could benefit from Luther Sutter\u2019s timely filed responses.\nAfter a hearing, the trial court ruled on May 13, 1998, that Joshua Sutter could not benefit from Luther Sutter\u2019s timely filed responses because they had been withdrawn. Accordingly, the court struck Joshua Sutter\u2019s answer as untimely. On the same day, the court entered a ruling on the amended petition for declaratory judgment. The court determined that the inter vivos trust was valid and then distributed the real property held by the trust to Ms. Payne, Ms. West, William Payne, and Clayla Hicks. Notably, the remaining three defendants, Luther Sutter, Joshua Sutter, and De\u2019 Shawn Robinson, were not awarded any interest in the real property by virtue of the trust.\nOn appeal, Joshua Sutter contends that the trial court erred when it struck his answer as untimely because the timely answers of his co-defendants, Luther Sutter and Clayla Hicks, inured to his benefit under the common-defense doctrine. We agree in part.\nI. Clayla Hicks\u2019s Answer\nAt the outset, we recognize that in his arguments lodged before the trial court, Joshua Sutter solely relied upon the pleadings filed by Luther Sutter. Significantly, Joshua did not rely upon, as he does on appeal, the answer filed by Clayla Hicks. As we have said on numerous occasions, we will not consider an issue raised for the first time on appeal. Burns v. First Nat\u2019l Bank, 336 Ark. 406, 985 S.W.2d 747 (1999); Evans v. Harry Robinson Pontiac-Buick, Inc., 336 Ark. 155, 983 S.W.2d 946 (1999). In response, Joshua claims that this holding applies only when the appellant raises new legal issues on appeal, and not, as in this case, where the legal argument is the same but is based upon different facts. Joshua, however, fails to cite a single authority in support of this distinction. Furthermore, in Evans, we said that we would not consider \u201cissues\u201d for the first time on appeal, which could mean either factual or legal issues. Evans, supra. Accordingly, we cannot consider for the first time on appeal whether Joshua Sutter can assert the common-defense doctrine based upon Clayla Hicks\u2019s answer.\nII. Luther Sutter\u2019s Responses\nPursuant to Ark. R. Civ. P. 12(a) a \u201cnon-resident of the state\u201d has thirty days after service of the summons and complaint to file an answer. It is undisputed that Joshua Sutter, a Georgia resident, filed his answer well beyond this time period. In reply, Joshua Sutter contends that he can benefit from Luther Sutter\u2019s timely filed response under the common-defense doctrine. We agree.\nArkansas has long recognized the common-defense doctrine, which provides that an answer that is timely filed by a co-defendant inures to the benefit of a defaulting co-defendant. Richardson v. Rodgers, 334 Ark. 606, 976 S.W.2d 941 (1998); Arnold Fireworks Display, Inc. v. Schmidt, 307 Ark. 316, 820 S.W.2d 444 (1991); Southland Mobile Home Corp. v. Winders, 262 Ark. 693, 561 S.W.2d 280 (1978). The test for determining whether the common-defense doctrine applies is whether the answer of the nondefaulting 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 Richardson, supra; Southland Mobile Home Corp., supra. In this respect, we have held that a general denial of \u201ceach and every material allegation contained in the complaint\u201d is the assertion of a common defense. See Southland Mobile Home Corp., supra. Likewise, we have held that a defense on the merits that equally applies to the other defendant is the assertion of a common defense. See Richardson, supra (containing a general denial of all material allegations in the complaint, and an assertion that the plaintiffs suffered no damages). Finally, in Richardson, we recently held that a defaulting defendant does not have to demonstrate the criteria listed in Ark. R. Civ. P. 55(c) for setting aside a default judgment if the defaulting defendant was entitled to the benefit of a timely filed answer under the common-defense doctrine. Id.\nIn the case before us today, Joshua Sutter does not clarify whether he is relying upon Luther Sutter\u2019s January 16, 1997 motion to dismiss, or his June 26, 1997 answer to the amended petition. Both pleadings, however, include defenses such as the lack of jurisdiction, failure to state a claim, and other defenses that are equally applicable to both co-defendants and are not peculiar to Luther Sutter. Furthermore, Luther Sutter included in his answer a general denial of each and every material allegation contained in the original and amended petition. Hence, it appears that the common-defense doctrine applies, and thus Joshua Sutter can benefit from Luther Sutter\u2019s timely filed answer.\nThis case, however, raises the novel issue of whether Joshua Sutter can continue to rely upon Luther Sutter\u2019s timely filed responses after they have been voluntarily withdrawn. Although we have never dealt with this precise issue, we have held in several cases that the common-defense doctrine applies even if the defaulting defendant makes his or her first appearance after the answering defendant is no longer in the case because the plaintiff has nonsuited or dismissed its complaint against the answering defendant. See, e.g., Richardson, supra; Schueck Steel, Inc. v. McCarthy Bros. Co., 289 Ark. 436, 717 S.W.2d 816 (1986) (supplemental opinion granting rehearing); Rogers v. Watkins, 258 Ark. 394, 525 S.W.2d 665 (1975).\nIn Schueck Steel, for example, Schueck Steel filed a complaint against Missouri Pacific Railroad Company and McCarthy Brothers Company. Schueck Steel, Inc., supra. Missouri Pacific timely filed an answer that included a general denial of the material allegations of the complaint. Id. In contrast, McCarthy Brothers failed to answer the complaint. Schueck Steel nonsuited its complaint against Missouri Pacific and then obtained a $91,000 default judgment against McCarthy Brothers. Id. In a supplemental opinion, we held that pursuant to the common-defense doctrine Missouri Pacific\u2019s timely filed answer inured to the benefit of McCarthy Brothers even after the plaintiff had voluntarily non-suited its claim against Missouri Pacific. Id. In particular, we said that the answer of the common defendant, Missouri Pacific, was not \u201cerased\u201d by the later dismissal. Id.\nRelying upon our holding in Schueck Steel, Inc., supra, the Court of Appeals held in National Sec. Fire & Cas. v. Barnes, 65 Ark. App. 13, 984 S.W.2d 80 (1999), that even when an answering defendant is no longer in the case at the time a default judgment is requested, its answer continues to inure to the benefit of the party against whom the default judgment is sought. In reaching this conclusion, the Court of Appeals declared that:\nOnce an answer inures to a defendant\u2019s benefit, it would be illogical to retract that benefit upon dismissal of the answering defendant. If such a retraction were allowed, plaintiffs could subvert the rule by nonsuiting or settling with an answering defendant.\nId.\nFrom these cases, it is clear that the common-defense doctrine applies even if the defaulting defendant makes his or her first appearance after the answering defendant is no longer in the case. In other words, a defaulting defendant can rely upon the answer of a co-defendant who is no longer in the case, and the subsequent dismissal does not \u201cerase\u201d the answer. This holding is consistent with the well-settled precedent that default judgments are not favorites of the law and should be avoided when possible. See Southeast Foods, Inc. v. Keener, 335 Ark. 209, 979 S.W.2d 885 (1998); B&F Eng\u2019g, Inc. v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992).\nGranted, the case before us today is somewhat different from the above-cited authorities because Luther Sutter, the answering defendant, withdrew his answer instead of the plaintiffs nonsuiting or dismissing their claims against him. In support of this distinction, Luther Sutter cites several cases that he claims stand for the proposition that a defendant cannot rely upon an answer that has been withdrawn. See Tri-State Transit Co., Inc. v. Miller, 188 Ark. 149, 65 S.W.2d 9 (1933); Little Rock & Ft. Smith Ry. Co. v. Clark, 58 Ark. 490, 25 S.W. 504 (1894). In these cases, however, we merely held that a withdrawn answer could not be introduced at trial as a party admission. We did not render any holding as to whether a withdrawn answer could inure to the benefit of a defaulting defendant under the common-defense doctrine. Tri-State Transit Co., Inc., supra; Little Rock & Ft. Smith Ry. Co., supra.\nLikewise, the cases Luther Sutter cites from other jurisdictions are inapposite because they do not deal with the common-defense doctrine. See Blazina v. Blazina, 356 N.E.2d 164 (Ill. App. 1976); Mathis v. Clary, 231 N.E.2d 157 (Ind. App. 1967); Heeter v. Fleming, 67 N.E.2d 317 (Ind. App. 1946); Conduitt v. Trenton Gas & Elec. Co., 31 S.W.2d 21 (Mo. 1930); Bongardt v. Frink, 143 S.E.2d 286 (N.C. 1965).\nFinally, as to withdrawn pleadings, 61A Am. Jur. 2d, Pleadings, \u00a7 354 (1981), provides that:\nWhile an answer is subject to withdrawal, the fact that it has been once filed, and that it may have been held insufficient on a demurrer, remains a matter of record, and is within the judicial notice of the court, acting on a motion in reference to the same pleading. The withdrawal does not eradicate the fact that the litigant did file the pleading, assuming, of course, that it was filed by him or under his authority. In some cases, however, it is held that an answer, after it is withdrawn, ceases to be part of the record. This is true where an answer is filed for a particular purpose and contains an admission merely to serve that purpose.\nThus, we find no support for Luther Sutter\u2019s contention that a defendant may never rely upon a withdrawn answer.\nIn light of our displeasure with default judgments and our holdings in Richardson, Schueck Steel, Inc., and McCarthy Bros., Co., we question whether a party may defeat the common-defense doctrine by voluntarily withdrawing his or her answer at any point in the litigation. We, however, do not decide that issue today because it is clear that Joshua Sutter answered the petition on December 22, 1997, which was several days before Luther Sutter withdrew his answer. Because Luther Sutter\u2019s answer was still viable at the time that Joshua Sutter answered the petition, we hold that the trial court erred when it ruled that the common-defense doctrine did not apply in this case. Accordingly, we reverse the trial court\u2019s order striking Joshua Sutter\u2019s answer, and its order of declaratory judgment, and remand for further proceedings consistent with this opinion.\nReversed and remanded.\nThis name appears a variety of ways in the pleadings: Luther O\u2019Neal, II; Luther O\u2019Neal Sutter; L. Oneal Sutter, II. We will refer to him as \u201cLuther Sutter\u201d in the remainder of this opinion.", "type": "majority", "author": "Annabelle Clinton Imber, Justice." } ], "attorneys": [ "James F. Lane, P.A., for appellant.", "Comer Boyett, Jr., for appellee." ], "corrections": "", "head_matter": "Joshua SUTTER v. Mary Lou Sutter PAYNE and Cora Sue Sutter West\n98-1023\n989 S.W.2d 887\nSupreme Court of Arkansas\nOpinion delivered April 22, 1999\nJames F. Lane, P.A., for appellant.\nComer Boyett, Jr., for appellee." }, "file_name": "0330-01", "first_page_order": 354, "last_page_order": 362 }