Rennels v. Four Seasons HVAC Distrib.

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Cite as 2011 Ark. App. 274 ARKANSAS COURT OF APPEALS DIVISION I No. CA10-1003 DEBORAH RENNELS, SCOTT RENNELS, and TYLER RENNELS APPELLANTS V. Opinion Delivered APRIL 13, 2011 APPEAL FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, WESTERN DISTRICT [NO. CV-2009-798] HONORABLE DAVID N. LASER, JUDGE FOUR SEASONS HVAC DISTRIBUTORS APPELLEE AFFIRMED ROBIN F. WYNNE, Judge Deborah Rennels, Scott Rennels, and Tyler Rennels, all of whom are former employees of Four Seasons HVAC Distributors, appeal from a January 12, 2010 order granting appellee’s motion to strike their answers and for default judgment; a March 10, 2010 order awarding damages to appellee; and an April 2, 2010 order awarding appellee attorney’s fees. In their brief, appellants only challenge the order striking their answers and granting a default judgment to appellee. We affirm the trial court. On September 25, 2009, appellee filed a complaint against appellants in which it alleged breach of fiduciary duty, fraud, and breach of contract based upon an alleged use of appellee’s funds for personal benefit by appellants. The complaint was served upon each of the appellants on September 28, 2009. Appellants filed separate pro se answers to the complaint on October 20, 2009. Appellee filed a motion to strike appellants’ answers on October 21, Cite as 2011 Ark. App. 274 2009, in which it argued that appellants’ answers were not timely filed. On the same date, appellee filed a motion for default judgment based upon the alleged untimely filing of the answers. Appellants filed a response to the motion for default judgment in which they generally denied the allegations in the motion and specifically argued that the trial court did not have jurisdiction over appellee because appellee was not a current corporation and did not have standing to bring an action against them. Appellants also filed a response to the motion to strike their answers in which they denied that their answers were untimely on the basis that the parties had discussed settlement and appellee’s attorney indicated that, if necessary, more time would be allowed to file an answer. Following a telephone hearing that is not included in the record, the trial court entered a judgment on the motions for default and to strike the answers on January 12, 2010, in which it found that appellants’ answers were filed one day late and that appellants offered no reason to file a belated answer. The trial court struck appellants’ answers and entered a default judgment in favor of appellee. Following a hearing on the issue of damages, the trial court entered a judgment on March 8, 2010, in which it awarded appellee a judgment in the amount of $116,447.87. On April 2, 2010, the trial court awarded appellee an attorney’s fee in the amount of $10,000. The standard by which we review the granting of a default judgment and the denial of a motion to set aside the default judgment is whether the trial court abused its discretion. Southeast Foods, Inc. v. Keener, 335 Ark. 209, 979 S.W.2d 885 (1998). 2 Cite as 2011 Ark. App. 274 Appellee argues in its brief that appellants’ arguments on appeal cannot be considered because they are different from those that were raised before the trial court. We agree with appellee. Arguments not raised before the trial court will not be considered for the first time on appeal. Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997). Appellants make arguments on appeal that were not made below. As noted above, appellants’ arguments in response to the motions to strike and for default judgment were that the trial court did not have jurisdiction over appellee because appellee was not a current corporation and that the filed answers were not late because the parties had discussed settlement and counsel for appellee indicated that the time to file an answer would be extended if necessary. Appellants make neither of these argument on appeal. Instead, appellants argue in their brief that it was overly harsh and purely technical to strike their answers and grant a default judgment to appellee. Appellants spend the majority of their argument requesting that the Arkansas appellate courts adopt the view taken by the federal courts in granting default judgments. As there is no indication in the record that the arguments made by appellants on appeal were made before the trial court, we will not consider the arguments made on appeal. Affirmed. G LADWIN and G LOVER, JJ., agree. 3

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