Murdock v. Slater

Claude MURDOCK v. Charles E. SLATER, Jr.

96-686                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered December 23, 1996


1.   Judgment -- consent judgment defined -- appellant neither
     agreed nor consented to judgment. -- A consent judgment is a
     judgment not reached by the court but one that is agreed to by
     the parties and entered by the court; here, appellant clearly
     did not "agree" to the judgment, nor did he make any clear and
     unequivocal expressions of consent or confession to the
     judgment by his default; rather, he simply failed to appear or
     answer, and his inaction did not give rise to a judgment by
     consent or confession.  

2.   Appeal & error -- municipal court -- when Ark. Code Ann.  16-
     96-501 allows for de novo appeals. --  Arkansas Code Annotated
      16-96-501 allows for de novo appeals from judgments entered
     as a result of a guilty plea and a plea of nolo contendere in
     municipal court; moreover, entry of judgment by consent in
     municipal court does not bar a de novo appeal to circuit as
     the defendant may simply wish to exercise his right to jury
     trial.

3.   Trial -- appellant entitled to de novo review of municipal
     default judgment in circuit court -- law makes no distinction
     between appeal from default judgement or appeal after trial. -
     -  Pursuant to Art. 2,  7, of the Arkansas Constitution,
     which guarantees the right to jury trial, the plain language
     of Ark. Code Ann.  16-96-507, which makes no distinction
     between an appeal from a judgment by default or after trial,
     and ultimately the nature of de novo appeal, the supreme court
     found that reversal was mandated; appellant was entitled to de
     novo review of the municipal default judgment in circuit
     court.

4.   Pleadings -- later pleadings allowed on issue of liability --
     appellant's timely filed answer and counterclaim after appeal
     to circuit court could be relied upon. -- Appellant's argument
     that his later pleading should be allowed because of the de
     novo nature of appeal to circuit court was well taken; the
     court determined that further pleading should be allowed after
     entry of the municipal court judgment because it would be
     illogical to provide for a complete retrial of municipal court
     judgments entered pursuant to pleas of guilty, by consent or
     confession or by default, if the issue of liability could not
     also be retried; the constitutional guarantee of a jury trial
     would be meaningless in those appeals involving a sum certain
     if the defaulting defendant was not allowed to deny liability
     on de novo review; moreover, written answers are presently
     only required in the small-claims division of municipal
     courts; appellant may rely on the answer and counterclaim
     timely filed after his appeal to circuit court. 


     Appeal from Jefferson Circuit Court; Berlin C. Jones, Judge;
reversed and remanded.
     Ramsay, Bridgforth, Harrelson & Starling, by:  John T.
Starling, for appellant.
     Brockman, Norton, & Taylor, for appellee.

     Andree Layton Roaf, Justice.
     This case presents an issue of first impression in Arkansas - 
whether a defendant who defaults in municipal court has a right to
a direct de novo appeal to circuit court.  Charles E. Slater, Jr.,
obtained a default judgment against  Claude Murdock in the small
claims division of municipal court.  Murdock timely filed for a de
novo appeal to circuit court, where he also filed a belated answer
and counterclaim.  The circuit court dismissed Murdock's appeal,
finding that the failure to timely respond or appear in municipal
court constituted a consent or confession of the judgment, from
which an appeal would not lie.  On appeal, Murdock argues 1) that
Ark. Code Ann.  16-96-507 (1987) entitles him to a direct de novo
appeal of the default judgment, and 2) that he is entitled to rely
on the belated answer and counterclaim he filed in circuit court
or, in the alternative, to a hearing in which Slater must prove his
damages. 
     We agree that Murdock is entitled to a de novo review, and we
reverse and remand.
     On April 26, 1995, the appellee, Charles Slater, Jr., filed a
complaint in the small claims division of the Pine Bluff Municipal
Court against the appellant, Claude Murdock.  The complaint alleged
that Murdock, a painter, performed an "unacceptable" paint job on
Slater's home, that the paint was peeling, and that his kitchen
floor was ruined.  Slater claimed damages in the amount of $3,000. 
Murdock was served with the complaint on April 29, 1995, but did
not file an answer or appear in court.  
     On May 25, 1995, the municipal court entered judgment for
Slater in the amount of $3,000 plus court costs. There is no
indication in the abstract or record that a hearing was held to
determine damages.  Murdock filed an appeal with the Jefferson
County Circuit Court on June 22, 1995, requesting a trial de novo.
On June 29, 1995, Murdock filed an answer with the circuit court,
raising the affirmative defenses of set-off and comparative fault,
and counterclaimed for the contract price of the paint job, $350. 
Slater responded with a motion to dismiss the appeal and
counterclaim.
     On February 14, 1996, the circuit court entered an order
granting Slater's motion to dismiss the appeal and the
counterclaim, finding that Murdock's failure to appear or answer in
the municipal court proceeding amounted to a consent or confession
of judgment.  The order set a hearing in which Slater was to prove
his damages.  However, an amended order was entered on February 20,
1996, dismissing the appeal and counterclaim in its entirety. 
Murdock appeals from this order, arguing that he is entitled to a
full trial de novo in the circuit court, or, in the alternative,
that he is entitled to a hearing on the issue of damages.
            1. De novo appeal from default judgment.
     Murdock first argues that Ark. Code Ann.  16-96-507 entitles
him to a trial de novo in circuit court as a matter of law. 
     Arkansas Code Annotated  16-96-507, which governs appeals
from municipal court to circuit court, provides that "the case
shall be tried anew as if no judgment had been rendered."  See also
Whittle v. Washington County Circuit Ct., 325 Ark. 136, 925 S.W.2d 383 (1996) (appeal to circuit court of a municipal court judgment
results in a trial de novo).  Whether a party has a direct right of
appeal to circuit court from the entry of a default judgment has
never been squarely addressed by this court. Murdock relies on the
plain wording of Ark. Code Ann.  16-96-507 and on language
contained in a recent case decided by this court for his assertion
of the right to directly appeal the default judgment to circuit
court.
     In Marcinkowski v. Affirmative Risk Management Corp., 322 Ark.
580, 910 S.W.2d 679 (1995), Marcinkowski failed to answer a
complaint filed against him in municipal court for the intentional
interference  with a business expectancy.  Affirmative Risk
Management Corp. was awarded the full amount requested in a default
judgment, even though no hearing was held on the issue of damages. 
Marcinkowski then filed a belated answer and a motion to set aside
the default judgment in municipal court, seeking a hearing on the
reasons for his failure to file an answer and on the matter of
damages.  The municipal court denied the motion to set aside the
default judgment, from which Marcinkowski appealed to circuit
court.  The circuit judge dismissed the appeal as untimely, and
this court reversed, holding that the appeal from the denial of the
motion to set aside the default judgment was timely.
     Although Marcinkowski did not involve the direct appeal from
a default judgment, we stated in dictum that "[w]e are tempted to
conclude that [the appellant] is entitled to no relief because he
could have had a complete de novo review of his case had he simply
appealed from the Municipal Court judgment instead of filing the
belated answer and then moving to set the judgment aside."  Id.
(emphasis added).  We remanded to the circuit court to conduct a de
novo proceeding under Ark. R. Civ. P. 55(c), in order to determine
whether a justification to set aside the default judgment existed,
and further explained that  "[i]f no such relief is justified, the
matter is ended. . . [i]f relief is granted, the case will then be
treated as any other de novo review of a municipal court judgment." 
Id.
     However, Slater contends that Marcinkowski is inapplicable to
the present case, because Murdock did not move the municipal court
to set aside the default judgment, but instead opted for a direct
de novo appeal to circuit court.  Slater further argues that a
default judgment is tantamount to a judgment by consent or
confession, and is therefore not appealable from municipal court to
circuit court.  The circuit court based its order dismissing
Murdock's case on this argument, and found that Murdock consented
to or confessed to "owing the Plaintiff's sum certain" by failing
to timely respond or appear in the municipal court.  Slater also
relies on Watson v. White, 217 Ark. 853, 233 S.W.2d 544 (1950),
where this court suggested that an appeal cannot be taken from
municipal to circuit court from a judgment by consent or
confession.  However, Watson did not involve a defendant who had
defaulted, and we further noted that "before a judgment should be
treated as one rendered on confession or consent the recitals
showing such confession or consent should be clear and
unequivocal."  Id.
     This court has defined a consent judgment as a judgment not
reached by the court, but one that is agreed to by the parties and
entered by the court.  Selig v. Barnett, 233 Ark. 900, 350 S.W.2d 176 (1961).  Clearly, Murdock did not "agree" to the judgment, nor
did he make any clear and unequivocal expressions of consent or
confession to the judgment by his default.  Rather, Murdock simply
failed to appear or answer, and his inaction does not give rise to
a judgment by consent or confession.  
     Moreover, entry of judgment by consent in municipal court does
not bar a de novo appeal to circuit as the defendant may simply
wish to exercise his right to jury trial.   De novo appeal of
inferior court judgments in Arkansas is founded on the Arkansas
Constitution, Art. 2,  7, which provides in part: "The right of
trial by jury should remain inviolate, and shall extend to all
cases at law, without regard to the amount in controversy... ."
(emphasis added).
     In 1987, the legislature enacted the "Municipal Court Civil
Jurisdiction Act,"  1987 Ark. Acts No. 431. The act provides that:
     There shall be no jury trials in municipal court. In
     order that the right of trial by jury remain inviolate,
     all appeals from judgment in municipal court shall be de
     novo to circuit court."
Id.  (codified at Ark. Code Ann.  16-17-703). 
     Before Marcinkowski, supra, this court had rarely been called
upon to consider civil appeals from municipal court judgments,
undoubtedly because the jurisdictional amount for municipal court
claims was only $300 before it was raised to $3,000 in 1987, by
Amendment 64 to the Arkansas Constitution.  However, we have
addressed the right to de novo review of such judgments in the
context of criminal appeals on a number of occasions.
     Prior to 1943, this court had held that there was no right to
appeal to circuit court from a guilty plea in a municipal court. 
See City of Fayetteville v. Bell, 205 Ark. 672, 170 S.W.2d 666
(1943).  In 1945, the General Assembly passed Act 197 of 1945,
which clearly expresses the intent that the right to de novo appeal
from municipal court be absolute: 
     Section 2.  Hereafter all persons convicted in any municipal,
     justice of the peace or mayor's court upon any plea of
     guilty in any misdemeanor case may appeal to the circuit
     court from such judgment of conviction by following the
     same procedure prescribed by law for appeals in other
     misdemeanor cases. 
(Emphasis added.)
     We have interpreted this act, compiled as Ark. Stat. Ann. 44-
502, and later codified as Ark. Code Ann.  16-96-501, as allowing
for de novo appeals from judgments entered as a result of a guilty
plea and a plea of nolo contendere in municipal court. See Allred
v. State, 310 Ark. 476, 837 S.W.2d 469 (1992); Riley v. City of
Corning, 294 Ark. 480, 743 S.W.2d 820 (1988); Ex parte Hornsby, 228
Ark. 975, 311 S.W.2d 529 (1958).  
     We thus conclude that Art. 2,  7, of the Arkansas
Constitution which guarantees the right to jury trial,  the plain
language of Ark. Code Ann.  16-96-507 which makes no distinction
between an appeal from a judgment by default or after trial, and
ultimately the nature of de novo appeal, mandates reversal in the
present case. 2.  Belated answer and counterclaim.
     Murdock essentially argues that his later pleading should be
allowed because of the de novo nature of appeal to circuit court. 
He again submits the statement in Marcinkowski, supra, that a
complete de novo review could have been had by directly appealing
the municipal court default judgment.  Murdock further relies on
several criminal cases, where this court stated that a defendant is
entitled to a new trial "as if no judgment had been rendered in the
municipal court,"  Stephens v. State, 295 Ark. 541, 750 S.W.2d 52
(1988), and that "the purpose of the trial de novo is to conduct a
trial as though there had been no trial in the lower court." 
Bussey v. State, 315 Ark. 292, 867 S.W.2d 433 (1993).  However,
these cases refer to de novo  review as only a new trial, and do
not address the issue of whether further pleading should be allowed
after entry of the municipal court judgment.  
     Nevertheless, we are convinced that it is indeed illogical to
provide for a complete retrial of municipal court judgments entered
pursuant to pleas of guilty, by consent or confession or by
default, if the issue of liability cannot also be retried.  The
constitutional guarantee of a jury trial would be meaningless in
those appeals involving a sum certain if the defaulting defendant
is not allowed to deny liability on de novo review.  Moreover,
written answers are presently only required in the small claims
division of municipal courts.  
     We hold that Murdock may rely on the answer and counterclaim
timely filed after his appeal to circuit court. 
     Reversed and remanded.