Benedetto v. Justin Wooten Constr., LLC
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Cite as 2009 Ark. App. 825
ARKANSAS COURT OF APPEALS
DIVISION III
CA08-1243
No.
TIFFANY BENEDETTO
Opinion Delivered DECEMBER
APPELLANT
V.
JUSTIN WOOTEN CONSTRUCTION,
LLC
APPELLEE
9, 2009
APPEAL FROM THE FAULKNER
COUNTY CIRCUIT COURT,
[NO. CV 2008-315]
HONORABLE RHONDA K. WOOD,
JUDGE
AFFIRMED
ROBERT J. GLADWIN, Judge
Tiffany Benedetto appeals from the Faulkner County Circuit Court’s orders denying
her motion for default judgment against appellee Justin Wooten Construction, LLC, and
granting appellee’s motion to dismiss. We affirm the circuit court’s orders.
In March 2008, appellant sued appellee for malicious prosecution and abuse of process.
She alleged that she and her former husband entered into a contract to buy a house from
appellee and took possession of it before closing; she and her husband became estranged, and
he moved out of the house while continuing to make payments to appellee. Appellant further
alleged that, after appellee filed a petition for ejectment against her in March 2006, it
permitted her husband to occupy the house. She contended that appellee had exploited her
circumstances, abused the legal process, and filed the ejectment action without cause and with
Cite as 2009 Ark. App. 825
malicious intent to humiliate her.
Appellee moved to dismiss, alleging that appellant had not responded to or entered an
appearance in the ejectment action, and that she had voluntarily moved out of the house.
Appellee asserted that, because it had not pursued the action any further, the circuit court
involuntarily dismissed the action for failure to prosecute on December 1, 2006, and because
it did not refile the action within one year, this case was barred by res judicata.
On May 22, 2008, appellant moved for default judgment and to strike appellee’s
motion on the ground that it had been served on April 22, 2008, and failed to file an answer
or appear until May 13, 2008, which was one day late. Along with a copy of the receipt, she
attached an affidavit of service stating that, on April 22, 2008, Justin Wooten (who owns
appellee with his wife) had signed a receipt for the complaint and summons sent by certified
mail.
Appellee asserted that its untimely filing of the motion to dismiss was the result of
mistake, inadvertence, or excusable neglect. It argued that, on May 7, 2008, Wooten had
informed appellee’s attorney that he had been served on April 23, 2008, not April 22, 2008,
as reflected on the certified mail “green card,” and that the attorney had believed that May
13, 2008, was the deadline for filing an answer. Appellee added that its attorney had not
known that May 12, 2008, was the deadline because appellant had not filed the proof of
service until May 22, 2008, which was not timely. In its accompanying brief, appellee argued
that appellant had suffered no surprise or prejudice; that its default in this case was largely
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technical; and that, under the current version of Arkansas Rule of Civil Procedure 55, which
was designed to promote judgments on the merits, rather than on technicalities, the entry of
a default judgment is discretionary. Appellee pointed out that it had appeared by filing its
motion to dismiss, which set forth a meritorious defense. See Ark. R. Civ. P. 55(a) (2009).
Appellant filed a supplemental brief in support of her answer to appellee’s motion to
dismiss, stating that res judicata did not apply because the lawsuits were based upon two
separate events. See Crockett & Brown, P.A. v. Wilson, 314 Ark. 578, 864 S.W.2d 244 (1993).
In her brief, appellant set forth the elements of the torts of malicious prosecution and abuse
of process. To prevail on a claim for malicious prosecution, a plaintiff must prove (1) a
proceeding instituted or continued by the defendant against the plaintiff; (2) termination of
the proceeding in favor of the plaintiff; (3) absence of probable cause for the proceedings; (4)
malice on the part of the defendant; and (5) damages. See Farm Serv. Coop., Inc. v. Goshen
Farms, Inc., 267 Ark. 324, 590 S.W.2d 861 (1980). Appellant argued that her claim for
malicious prosecution did not arise until after the conclusion of the original action.
One asserting an abuse-of-process claim must establish (1) a legal procedure set in
motion in proper form, even with probable cause and ultimate success; (2) the procedure is
perverted to accomplish an ulterior purpose for which it was not designed; and (3) a willful
act is perpetrated in the use of process which is not proper in the regular conduct of the
proceeding. South Ark. Petroleum Co. v. Schiesser, 343 Ark. 492, 36 S.W.3d 317 (2001). The
test of abuse of process is whether a judicial process is used to extort or coerce. Id. The key
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to the tort is the improper use of process after its issuance in order to accomplish a purpose
for which the process was not designed. Id. Thus, it is the purpose for which the process is
used, once issued, that is important in reaching a conclusion. Id.
The court held a hearing on July 8, 2008. Wooten testified that he believed that he
had signed the green card at the post office on Wednesday, April 23, and not the day before,
because as soon as he picked up the complaint, he showed it to his wife, who only worked
on Monday, Wednesday, and Friday, at her place of employment. He stated that he did not
write the “4/22/08” date on the green card, and that, whoever (he assumed the postal
service) did, wrote the wrong date. The court then looked at the postal service’s web site to
verify the actual date of service, but concluded its efforts by stating that it was “not helpful.”
The court did not take any further testimony, but heard the arguments of counsel.
On July 11, 2008, the circuit court entered an order denying appellant’s motion for
default judgment and granting appellee’s motion to dismiss. The court noted that Wooten had
believed that he picked up the summons on Wednesday, April 23, 2008, and not Tuesday,
April 22, 2008, because he remembered taking it to his wife at work, and she worked on
Wednesdays, not Tuesdays. The court stated that, since Rule 55 was amended in 1990, it is
preferable to decide cases on the merits, rather than on technicalities. It found that appellee
had shown mistake or inadvertence, as well as a meritorious defense, while appellant had
suffered no prejudice.
The court dismissed appellant’s malicious-prosecution claim because she could not
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“meet even a perfunctory showing of element two, termination of the proceeding in favor
of the Plaintiff.” The court stated that the ejectment action was dismissed sua sponte by the
court for lack of prosecution; that there was no termination in favor of either party; and that
appellee could have pursued the action, especially in light of appellant’s failure to answer the
petition. The court also stated that res judicata did not bar this claim because it requires
termination of an earlier legal action, which appellant could not have alleged in the first
lawsuit.
Regarding the abuse-of-process claim, the court acknowledged that appellant was not
required to establish that the first action was resolved in her favor. Nevertheless, the court
reasoned, the claim-preclusion aspect of res judicata barred the abuse-of-process claim because
it could have been raised as a counterclaim in the ejectment action, citing South Arkansas
Petroleum Co. v. Schiesser, supra; McNair v. McNair, 316 Ark. 299, 870 S.W.2d 756 (1994); and
Farm Service Cooperative, Inc. v. Goshen Farms, Inc., supra. On July 15, 2008, the court entered
a “Final Order” stating that appellant’s May 22, 2008 filing of the affidavit of service did not
comply with Arkansas Rule of Civil Procedure 4(g), although it did not render the service
invalid, and stating that an earlier filing would have “mitigated any mistake or inadvertence
argument.”
On August 21, 2008, appellant filed a motion for relief from judgment, asserting that
she had obtained a certified copy of the postal service’s electronic-delivery record, which
indicated that Wooten had received the complaint and summons on April 22, 2008. Appellant
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attached a copy of the delivery record obtained from the postal service’s web site. Appellant
argued that appellee had failed to plead Wooten’s certainty of having received the complaint
on April 23, 2008. Appellee responded that, regardless of whether it had pled that Wooten
knew he had received the complaint on April 23, 2008, appellant had waived that argument
by failing to object to his testimony at the hearing. The court denied the motion for relief
from judgment on September 30, 2008, stating that it had considered the postal service’s
documents before issuing its earlier order, and reiterating that appellee had established mistake
or inadvertence. Appellant then pursued this appeal.
Appellant argues in her first point that the circuit court erred in denying her motion
for default judgment, citing Goston v. Craig, 34 Ark. App. 23, 805 S.W.2d 92 (1991), in
which this court followed the requirements of Arkansas Rule of Civil Procedure 55 before
it was significantly amended in 1990.1 The standard by which we review the granting or
denying of a motion for default judgment is whether the trial court abused its discretion.
B & F Eng’g, Inc. v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992); Moore v. Taylor Sales,
Inc., 59 Ark. App. 30, 953 S.W.2d 889 (1997). Default judgments are not favorites of the law
and should be avoided when possible. Id. Under former Rule 55(c), a default judgment could
be set aside upon a showing of “excusable neglect, unavoidable casualty, or other just cause.”
1
Appellant also argues that the court should not have found mistake or inadvertence
because, at the hearing, Justin Wooten testified that the mistake was made by the USPS in
recording the wrong date of delivery of service. The trial court, however, explained that it had
considered the USPS’s records in making its finding that appellee had proven mistake or
inadvertence.
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In 1990, the supreme court amended Rule 55 by making it more lenient, and allowing more
discretion to trial courts in deciding whether to enter a default judgment. Id. The revised rule
reflects a preference for deciding cases on the merits rather than on technicalities. Id. The
revised Rule 55(c) reads as follows: “The court may, upon motion, set aside a default
judgment previously entered for the following reasons: (1) mistake, inadvertence, surprise, or
excusable neglect; . . . or (4) any other reason justifying relief from the operation of the
judgment.” This subsection of the rule also requires that the party seeking to have the
judgment set aside must demonstrate a meritorious defense to the action. The reporter’s notes
to Rule 55 explain that, in deciding whether to enter a default judgment, the court should
take into account the factors utilized by the federal courts, including: whether the default is
largely technical and the defendant is now ready to defend; whether the plaintiff has been
prejudiced by the defendant’s delay in responding; and whether the court would later set aside
the default judgment under Rule 55(c). The same considerations apply in considering
whether a trial court abused its discretion in denying a default judgment. B & F Eng’g, supra.
Whether a trial court abused its discretion in making this ruling should be decided on a caseby-case basis. Id.
The circuit court did not abuse its discretion in denying appellant’s motion for default
judgment. Appellee proved that either Justin Wooten or the postal service was mistaken; that
the filing was only one day late; that appellee appeared and raised a meritorious defense; and
that appellant was not prejudiced. In fact, appellant’s counsel conceded in oral argument that
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appellant suffered no prejudice, and we agree. Considering all the material circumstances, no
abuse of discretion occurred, and we affirm as to the motion for default judgment.
In her second point, appellant acknowledges that there are no cases in Arkansas
addressing whether a dismissal for failure to prosecute is a “termination in favor of the
plaintiff” sufficient to meet that element of a malicious-prosecution claim. She urges us to
follow comment j to Restatement (Second) of Torts § 674 (1977), which states that it may
be sufficient:
Civil proceedings may be terminated in favor of the person against whom they are
brought . . . by (1) the favorable adjudication of the claim by a competent tribunal, or
(2) the withdrawal of the proceedings by the person bringing them, or (3) the dismissal
of the proceedings because of his failure to prosecute them. A favorable adjudication
may be by a judgment rendered by a court after trial, or upon demurrer or its
equivalent. In either case the adjudication is a sufficient termination of the
proceedings, unless an appeal is taken. If an appeal is taken, the proceedings are not
terminated until the final disposition of the appeal and of any further proceedings that
it may entail.
The Restatement approach recognizes that the particular circumstances of each case must be
considered. This comment adds that whether a withdrawal or an abandonment constitutes a
final termination of the case in favor of the person against whom the proceedings are brought,
and whether the withdrawal is evidence of a lack of probable cause for their initiation,
depends upon the circumstances under which the proceedings are withdrawn. Cult Awareness
Network v. Church of Scientology Int’l, 177 Ill.2d 267, 685 N.E.2d 1347 (1997), cert. denied, 523
U.S. 1020 (1998) (recognizing that this position avoids the problems inherent in allowing a
plaintiff to avoid a malicious prosecution action by obtaining a nonfactual disposition of the
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action).
We need not decide whether a dismissal for failure to prosecute is a termination in
favor of the plaintiff in the context of a malicious-prosecution case. Although there may be
situations warranting that conclusion, this is not such a case. The circumstances of this case
clearly show that the dismissal of the ejectment action cannot be viewed as a termination in
appellant’s favor. Appellant did not bother to file an answer or otherwise appear in the
ejectment action, and appellee did not pursue it because it had obtained the relief it sought,
i.e., appellant moved out of the house. Accordingly, we reject appellant’s challenge to the
circuit court’s ruling on the malicious-prosecution claim.
Appellant also challenges the circuit court’s holding that the abuse-of-process claim was
barred by res judicata.2 The doctrine of res judicata has two aspects: claim preclusion and issue
preclusion. See Cox v. Keahey, 84 Ark. App. 121, 133 S.W.3d 430 (2003). Under the claimpreclusion aspect of the doctrine of res judicata, a valid and final judgment rendered on the
merits by a court of competent jurisdiction bars another action by the plaintiff or his privies
against the defendant or his privies on the same claim or cause of action. Id. Res judicata bars
not only the relitigation of claims that were actually litigated in the first suit, but also those
that could have been litigated. Id. When a case is based on the same events as the subject
matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new
Appellant erroneously asserts that “there are no cases in Arkansas law which
dismiss a claim for abuse of process based on res judicata.” In Jayel Corp. v. Cochran, 366
Ark. 175, 234 S.W.3d 278 (2006), the supreme court affirmed, on the basis of res judicata,
a trial court’s entry of summary judgment for the defendant on an abuse-of-process claim.
2
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legal issues and seeks additional remedies. Id.
Appellant argues that res judicata did not apply to the abuse-of-process claim because
the two lawsuits were based upon different events, and she could not have filed a
counterclaim alleging that tort in the ejectment action. We disagree. Appellant could have
filed a counterclaim for abuse of process in the context of the ejectment action. See McNair
v. McNair, supra. The foundation of appellant’s abuse-of-process claim was that, in forcing
her to leave the house, appellee perverted the ejectment procedure to accomplish a purpose
for which it was not designed. The very object of an ejectment action, however, is to obtain
possession of land from one who wrongfully holds possession. See Patterson v. McKay, 199
Ark. 140, 134 S.W.2d 543 (1939); Henry v. Gulf Refining Co., 176 Ark. 133, 2 S.W.2d 687
(1927); Ark. Code Ann. § 18-60-201 (Repl. 2003). Clearly, the two lawsuits were based on
the same event, appellee’s recovery of possession of the house. The circuit court, therefore,
was correct in holding that the abuse-of-process claim was barred by res judicata.
Affirmed.
GLOVER and BROWN, JJ., agree.
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