Linda Baird v. Raymond Culp
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DIVISION I
ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
O LLY N EAL, Judge
CA05-1086
April 12, 2006
LINDA BAIRD
AN APPEAL FROM THE JEFFERSON
COUNTY CIRCUIT COURT
[CV-2004-365-1]
APPELLANT
v.
RAYMOND CULP
HONORABLE BERLIN C. JONES,
JUDGE
APPELLEE
REVERSED AND REMANDED
Appellant Linda Baird appeals from an order of the Jefferson County Circuit Court
finding that she failed to prove she sustained any damages arising from her tort complaint
against appellee Raymond Culp. On appeal, appellant alleges that (1) the trial court erred in
failing to award her any damages, and (2) the trial judge should have recused himself and his
failure to do so prejudiced appellant. We reverse and remand.
Appellant met appellee in February 2001. They married in July 2001 only to separate
in December 2002. In June/July 2003, the parties divorced. Around the same time as their
divorce, appellee began harassing and stalking appellant. Appellee threatened to kill
appellant and made several menacing phone calls to her. As a result, appellant filed
numerous complaints with the Pine Bluff Police Department. On June 23, 2003, appellant
was granted an ex parte temporary order of protection. The existence of the order of
protection failed to deter appellee, and on July 11, 2003, the State filed stalking and
protection-order-violation charges against appellee. That same day, the Jefferson County
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Circuit Court entered another order directing appellee to have no contact with appellant.
Despite the court’s order, appellee continued to harass and stalk appellant.
On May 18, 2004, appellant filed a complaint in tort against appellee, alleging that he
had committed an assault against her when he threatened to kill her. She said that appellee
intended to cause her apprehension and that in fact she was put in apprehension of physical
harm. She also alleged that appellee had committed the tort of outrage. Appellant asked for
compensatory damages in the amount of $50,000 and punitive damages in the amount of
$100,000. She also asked for a permanent injunction and restraining order.
When appellee did not file an answer, the trial court held a hearing on September 15,
2004. Appellee did not appear at the hearing. At the beginning of the hearing, the trial court
announced, “We are here primarily on proof of damages and that the [appellee] is in default.”
At the hearing, appellant testified that, since June 2003, appellee had threatened her
life and that he would often call her fifty times a day. She stated that appellee would call her
at home and at work. During her testimony, appellant described an incident where appellee
managed to obtain her pajama top, called and directed her to look on her porch, and when
she did, she found her pajama top. She also described an incident where she had gone to
meet a repairman at her former home, and while she was there with the repairman, appellee
kicked in the door.
Appellant testified that, as a result of appellee’s behavior, she changed residences.
She said that, despite efforts to ensure that appellee could not locate her, appellee managed
to locate her new home and also obtained her new phone number. Appellant testified that
she works full time for Delta Counseling and also works under contract as a clinical therapist
for Pine Bluff Psychological Associates. She said that appellee’s behavior caused her to
suffer a financial hardship. She said that, because she did not feel safe in her home, she had
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a security system installed and had stayed in a hotel. Appellant also testified that, as a result
of appellee’s behavior, she began to shake constantly and had a hard time focusing. She said
that she spent a lot of time in bed. Appellant sought treatment from her family physician and
a “residential” psychiatrist. She said that she was prescribed medication.
Appellant said that she was seeking $50,000 in compensatory damages because, “My
whole life turned upside down. I was scared to death and I don’t really scare that easily. I
had to take on different jobs. I had to charge most of my way through the summer, because
I did not have any money.” She also believed that punitive damages were justified.
Pam Cooney, testing administrator at Pine Bluff Psychological, testified that, prior to
the summer of 2003, appellant was a hard worker, but during that summer appellant began
making mistakes and was unable to work. She said that appellant worked on a part-time
basis and was assigned tasks that did not require a lot of concentration. She stated that, when
working full-time, appellant would earn $800 to $900 per week.
At the conclusion of the hearing, the trial court took the matter under advisement.
On September 23, 2004, appellee filed his answer to appellant’s complaint along with
a motion to set aside default judgment. Appellee’s answer was untimely.1 That same day,
appellant’s counsel, Maxie G. Kizer, filed a motion for the court to recuse. Attorney Kizer
alleged that due to comments the trial court had made to the district’s prosecuting attorney
regarding Kizer’s representation of appellant, the trial court could not be fair and impartial.2
On October 7, 2004, the trial court entered an order denying the recusal motion. An
amended recusal motion was filed on October 19, 2004. In the amended motion attorney
Kizer alleged that, in an unrelated matter, he had been granted summary judgment in a case
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At that time default judgment had yet to be entered.
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In addition to his private practice, attorney Kizer also worked as a part-time prosecutor.
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against the court’s case coordinator, and due to the court’s close working relationship with
the case coordinator, the court should recuse to avoid a conflict of interest or the appearance
of a conflict. Subsequently, attorney F. Wilson Bynum, Jr. was hired by appellant to pursue
the recusal matter. Attorney Bynum later filed a motion for the court to recuse from hearing
the motion for the court to recuse.
In an order entered April 12, 2005, that was prepared by attorney Bynum, the trial
court allowed appellant to withdraw her motion for the court to recuse and the motion for the
court to recuse from hearing the motion for the court to recuse. The trial court thereby
dismissed the motions.
On June 24, 2005, the trial court entered an order addressing the matters raised in
appellant’s complaint. In the first paragraph of the order the trial court stated, “Defendant
declared to be in default for failing to answer in a timely manner after proper service. The
matter proceeded to trial on damages only.” The trial court then proceeded to write the
following:
1.
Count One - Tort of Assault
The plaintiff failed to present creditable [sic], persuasive evidence that the
defendant’s conduct was in any way calculated to cause plaintiff to be in fear
for her bodily safety. Plaintiff failed to present any medical evidence that
established any relationships between any of the defendant’s conduct and any
alleged trauma or distress experienced by plaintiff. Moreover, the vast
majority of the evidence presented by the plaintiff, demonstrated the contrary,
i.e. the defendant was in love with plaintiff, wanted to be with her, wanted to
provide and protect her. That plaintiff failed to establish any of the
defendant’s conduct with any injury, illness, pain or suffering on the part of the
plaintiff. That the plaintiff failed to established [sic] that the defendant’s
conduct would cause a reasonable person to be in fear of their bodily safety.
That plaintiff’s claimed to [sic] the tort of assault is hereby denied.
2.
Count Two - Tort of Outrage
The plaintiff failed to present evidence that defendant’s conduct was so
outrageous that it would shock the conscience of a reasonable person or was
beyond the comprehension of members of society. Plaintiff’s claim for the tort
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of outrage is hereby denied.
3.
Count Three - Injunction
Plaintiff presented much evidence that the defendant has interfered in her life
to the extent the plaintiff desires assistance from the law enforcement, judicial
authorities or the other agencies to correct the problem or punish the defendant
for his conduct. The criminal action is pending and a temporary restraining
order is presently in effect, with a court date to make the same permanent.
This could result in the defendant being incarcerated, thus the petition is
premature and is hereby denied.
4.
Count Four - Punitive Damages
Plaintiff failed to succeed on her claim for compensatory damages. The Court
further finds that plaintiff has not presented any creditable [sic] evidence that
rise [sic] to the level that defendant’s conduct was such that the defendant
should be punished for engaging in said conduct, nor that the defendant should
be so punished as to cause the defendant and other similarly situated, to not
engage in same or similar conduct against the plaintiff or other members of
society similarly situated.
From this order appellant now brings her appeal.
When a civil case is tried by a circuit court sitting without a jury, our inquiry on appeal
is not whether there is substantial evidence to support the factual findings of the court, but
whether the findings are clearly erroneous, or clearly against the preponderance of the
evidence. Tygart v. Kohler, 82 Ark. App. 380, 109 S.W.3d 147 (2003). A finding is clearly
erroneous when, although there is evidence to support it, the reviewing court is left with a
definite and firm conviction that a mistake has been committed. Id.
On appeal, neither party challenges the trial court’s finding of default; therefore, we
do not address whether the trial court’s finding of default was proper. In her first point on
appeal appellant argues that the trial court erred in not awarding her any damages after
default judgment was entered against appellee. She specifically argues that (1) the trial court
erred when it looked to the merits of her claims instead of focusing upon the issue of
damages, and (2) she presented ample proof of damages.
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Rule 55 (a) of the Arkansas Rules of Civil Procedure provides that “[w]hen a party
against whom a judgment for affirmative relief is sought has failed to plead or otherwise
defend as provided by these rules, judgment by default may be entered by the court.”
Although default judgments are not favored in the law, a default judgment is just as binding
and enforceable as a judgment entered after trial on the merits. State v. $258,035 U.S.
Currency, 352 Ark. 117, 98 S.W.3d 818 (2003). Generally, a default judgment establishes
liability but not the extent of damages. Jean-Pierre v. Plantation Homes, 350 Ark. 569, 89
S.W.3d 337 (2002); Miller v. Transamerica Commercial Fin. Corp., 74 Ark. App. 237, 47
S.W.3d 288 (2001). A hearing is required to determine the amount of damages, and the
plaintiff is required to introduce evidence of the damages. Tharp v. Smith, 326 Ark. 260, 930
S.W.2d 350 (1996). However, after receiving the evidence, the trial court may not transform
the judgment from one of default to one based on the merits such that Rule 55 no longer
applies. Id.
Here, after receiving the evidence, the trial court then entered an order that decided
the case on the issue of liability. Appellant was only required to present proof of her
damages. If we were to allow the trial court’s decision to stand, we would be emasculating
Rule 55. We hold that the trial court erred when it looked to the merits of appellant’s liability
claim instead of limiting its focus to the issue of damages; therefore, we reverse the trial
court’s decision and remand this matter back to the trial court for an order consistent with
this opinion. Because we agree with appellant’s assertion that the trial court erred when it
decided the merits of her cause of action, we do not address whether appellant presented
adequate proof of damages.
On appeal, appellant also argues that the trial judge should have recused himself in
this case and that his refusal to do so prejudiced her. The facts of this case indicate that, in
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an order dated April 12, 2005, the trial court allowed appellant to withdraw her recusal
motion; therefore, she cannot now complain of any error. See Precision Steel Warehouse,
Inc. v. Anderson-Martin Mach. Co., 313 Ark. 258, 854 S.W.2d 321 (1993).
Because the trial court, after declaring appellee in default, focused on the merits of
appellant’s liability claims instead of limiting its focus to the issue of what, if any, damages
appellant sustained, we reverse and remand this matter to the trial court.
Reversed and remanded.
B IRD and B AKER, JJ., agree.
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