Reeves v. Hinkle

Danny REEVES, Individually, and d/b/a Reeves
Body Shop v. Michael HINKLE, Individually,
and d/b/a Hinkle Auto & ATV Sales

95-1092                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered November 25, 1996


1.   Appeal & error -- argument raised for first time on appeal not
     considered -- justices will not scour record. -- The appellate
     court, citing appellant's failure to comply with Ark. Sup. Ct.
     R. 4-2(a)(6), declined to reach appellant's argument that
     appellee's complaint was insufficient because it did not
     allege any relationship or contact between appellee and
     appellant and could not support a default judgment predicated
     on either constructive fraud or breach of warranty; the
     appellate court will not consider an argument raised for the
     first time on appeal where that argument has not been first
     presented to the trial court for resolution; while the issue
     or argument may be contained in a pleading or brief in the
     record, there are seven justices of the supreme court and one
     record, and the court will not be placed in the position of
     having seven justices scour one record for pertinent
     information.

2.   Appeal & error -- appellant's abstract was skeletal at best --
     supreme court could not ascertain what arguments resulted in
     default judgment. -- Appellant's abstract was skeletal at
     best, and the appellate court could not garner from it whether
     the argument regarding lack of relationship or contact between
     appellee and appellant, which appellant contended was
     essential for a cause of action for constructive fraud or
     breach of warranty, was raised before the trial court or
     considered by it; indeed, the appellate court could not
     ascertain from the abstract what arguments before the trial
     court resulted in the default judgment and, specifically,
     whether the court actually decided that the warranty and fraud
     causes of action were sufficiently pleaded; the court
     emphasized that it was critical that it not be placed in a
     position of considering an issue for the first time on appeal.

3.   Judgment -- default judgment -- standard of review --
     appellant was unable to show erroneous decision or abuse of
     discretion. -- The standard of review for default judgments is
     the deferential standard of whether the trial court abused its
     discretion; in light of the abstract presented, it was
     impossible for appellant to show that the trial court decided
     the matter erroneously or abused its discretion in entering
     the default judgment.


     Appeal from Lee Circuit Court; Harvey Yates, Judge; affirmed.
     W. Frank Morledge, P.A., by: W. Frank Morledge, for appellant.
     Daggett, Van Dover & Donovan, by:  Robert J. Donovan, for
appellee.

     Robert L. Brown, Justice.
     This is the second time this matter has been before us.  In
the first appeal, we dismissed under Ark. R. Civ. P. 54(b), owing
to unresolved claims among the parties and the failure of the
abstract to include an order which set forth facts warranting an
intermediate appeal.  Reeves v. Hinkle, 321 Ark. 28, 899 S.W.2d 841
(1995) (Reeves I).  Appellant Danny Reeves now raises the same
issues in his second appeal: error in the trial court's grant of a
default judgment on liability and summary judgment on damages.  We
affirm for failure to comply with Ark. Sup. Ct. R. 4-2(a)(6).
     The facts, as stated, are taken from Reeves's abstract in his
brief and from Hinkle's supplemental abstract.  On November 24,
1992, appellee Michael Hinkle, individually and d/b/a Hinkle's Auto
& ATV Sales (Hinkle), filed a complaint in Lee County Circuit Court
against James Crossland, individually and d/b/a Crossland Auto
Sales (Crossland), alleging breach of express and implied
warranties of title resulting from a sale of two stolen vehicles by
Crossland to Hinkle.  On December 1, 1992, Crossland filed a third-
party complaint against his seller, appellant Reeves, individually
and d/b/a Reeves Body Shop (Reeves), seeking indemnification.  On
December 4, 1992, Hinkle filed a direct complaint against third-
party-defendant Reeves in the same litigation and alleged that
Reeves breached the express and implied warranties of title because
he knew the two vehicles were stolen when he sold them to
Crossland.  The F.B.I. confiscated one vehicle from Hinkle and
picked up the second vehicle from Hinkle's subsequent purchaser.
     On December 16, 1992, Reeves moved to dismiss Crossland's
third-party complaint due to improper venue because Reeves was a
resident of St. Francis County.  The circuit court denied the
motion and ruled that venue was appropriate because the third-party
complaint concerned the sale of stolen vehicles which "may be
defined as fraud."  The circuit court concluded that venue was
appropriate in Lee County under Ark. Code Ann.  16-60-113 (b)
(1987).
     On April 21, 1993, Reeves moved for reconsideration and,
alternatively, for summary judgment on Hinkle's claim and stated
that based on the allegations in the complaint, he was entitled to
judgment as a matter of law.
     On April 27, 1993, Hinkle moved for a default judgment against
Reeves.   Reeves responded, alleging: (1) that Crossland's filed
answer inured to his benefit; and (2) that the trial court should
exercise its discretion in denying a default; (3) that he possessed
a meritorious defense, and (4) that the allegations of Hinkle's
complaint were insufficient to support a default judgment.  The
trial court issued a letter opinion finding that Hinkle's motion
for default judgment should be granted and that Reeves's motions
for dismissal for improper venue and for summary judgment should be
denied.  He reserved ruling on the damages issue.  Hinkle
subsequently filed a motion for summary judgment on damages, which
was granted.  Judgment based on Reeves's default and denying
Reeves's motions was entered.  Summary judgment was subsequently
entered against Reeves in the amount of $16,800 plus prejudgment
interest.
     Reeves now urges that the default judgment must fail because
there is no factual basis for a constructive-fraud cause of action
and, similarly, no basis for a breach-of-warranty claim. 
Specifically, he contends that Hinkle's complaint did not allege
any relationship or contact between Hinkle and Reeves.  See
Kohlenberger, Inc. v. Tyson Foods, Inc., 256 Ark. 584, 510 S.W.2d 555 (1974).  Hence, according to Reeves's theory of the case,
Hinkle's complaint was insufficient and cannot support a default
judgment predicated on either constructive fraud or breach of
warranty.
     We decline to reach this issue due to failure to comply with
Rule 4-2(a)(6) of the Supreme Court Rules.  Nowhere in Reeves's
abstract is it shown that this issue was raised or considered by
the circuit court, and we will not turn to the record to decide
that issue.  We have stated the blackletter law regarding
sufficiency of an abstract as follows:
          This court has been adamant in refusing to consider
     arguments raised for the first time on appeal, where that
     argument has not been first presented to the trial court
     for resolution.  See, e.g., Stacks v. Jones, 323 Ark.
     643, 916 S.W.2d 120 (1996); Thompson v. Perkins, 322 Ark.
     720, 911 S.W.2d 582 (1995).  While the issue or argument
     may be contained in a pleading or brief in the record, we
     have said many times that there are seven justices of the
     Supreme Court and one record, and we will not be placed
     in the position of having seven justices scour one record
     for pertinent information.  Kearney v. Committee on Prof.
     Conduct, 320 Ark. 581, 897 S.W.2d 573 (1995); Stroud
     Crop, Inc. v. Hagler, 317 Ark. 139, 875 S.W.2d 851
     (1994).  We, accordingly, affirm due to lack of
     sufficient information in the appellant's abstract to
     enable us to decide this point.  See Ark. Sup. Ct. R. 4-
     2(b)(2).
Hardy Constr. Co. v. Arkansas State Highway & Transp. Dep't, 324
Ark. 496, 503, 922 S.W.2d 705, 708 (1996).
     Here, Reeves's abstract is skeletal at best, and we cannot
garner from it whether the argument regarding lack of relationship
or contact between Hinkle and Reeves, which Reeves contends is
essential for a cause of action for constructive fraud or breach of
warranty, was raised before the trial court or considered by it. 
Indeed, we cannot ascertain from the abstract what arguments before
the trial court resulted in the default judgment and, specifically,
whether the court actually decided that the warranty and fraud
causes of action were sufficiently pled.  It is critical that this
court not be placed in a position of considering an issue for the
first time on appeal.
     It is well-settled that the standard of review for default
judgments is the deferential standard of whether the trial court
abused its discretion.  Arnold & Arnold v. Williams, 315 Ark. 632,
870 S.W.2d 365 (1994); Divelbliss v. Suchor, 311 Ark. 8, 841 S.W.2d 600 (1992).  In light of the abstract presented, which we must rely
on to decide this case, it is impossible for Reeves to show that
the trial court decided the matter erroneously or abused its
discretion in entering the default judgment.
     Affirmed.
     Dudley and Newbern, JJ., not participating.
     Special Justice Toney D. McMillan joins.
     Special Justice Hermann Ivester joins.