JPMorgan Chase Bank, N.A. v. Scott

Cite as 2017 Ark. App. 358
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-16-754
Opinion Delivered May 31, 2017
JPMORGAN CHASE BANK, N.A.
APPELLANT APPEAL FROM THE JACKSON
COUNTY CIRCUIT COURT
V. [NO. 34CV-15-15]
FORLANDA A. SCOTT AND PELVIN HONORABLE HAROLD S. ERWIN,
L. SCOTT III JUDGE
APPELLEES
MOTION TO DISMISS GRANTED
N. MARK KLAPPENBACH, Judge
JPMorgan Chase Bank, N.A. (Chase), appeals from the Jackson County Circuit
Court’s order granting a default judgment to appellees Forlanda A. Scott and Pelvin L. Scott
III (the Scotts) as a discovery sanction pursuant to Arkansas Rule of Civil Procedure 37.
Before we can reach the merits of the case, we must address the motion to dismiss the appeal
filed by the Scotts. We conclude that we lack jurisdiction and dismiss the appeal.
As a sanction for discovery violations, the order on appeal holds Chase in default as
to the Scotts’ counterclaims and dismisses Chase’s complaint for forcible entry and unlawful
detainer. The order states that the Scotts are permitted to proceed to a jury trial on damages
for all of the causes of action in their counterclaim. There is no dispute that the order is not
final because it determined only liability and reserved for trial the amount of damages. Arnold
Fireworks Display, Inc. v. Schmidt, 307 Ark. 316, 820 S.W.2d 444 (1991). However, Chase
contends that the appeal is a proper interlocutory appeal pursuant to Arkansas Rule of
Cite as 2017 Ark. App. 358
Appellate Procedure–Civil 2(a)(4), which provides that an appeal may be taken from “[a]n
order which strikes out an answer, or any part of an answer, or any pleading in an action.”
Ark. R. App. P.–Civ. 2(a)(4). An order striking a pleading that may be appealed pursuant
to Rule 2(a)(4) must be appealed within thirty days from its entry; it cannot be challenged
as an intermediate order after entry of final judgment. In re Estate of Stinnett, 2011 Ark. 278,
383 S.W.3d 357.
Among the discovery sanctions a court may enter is “[a]n order striking out pleadings
or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the
action or proceeding or any part thereof, or rendering a judgment by default against the
disobedient party.” Ark. R. Civ. P. 37(b)(2)(C). Here, the trial court entered a judgment
by default, but it did not strike any pleadings. Nevertheless, Chase contends that the trial
court “implicitly” struck Chase’s answer based on its assertion that a default judgment may
be entered pursuant to Rule 37 only if the requirements for a default judgment under Rule
55 are met. See Ark. R. Civ. P. 55 (providing that a default judgment may be entered when
a party has “failed to plead or otherwise defend as provided by these rules”). The supreme
court, however, has held that Rule 55 requirements do not apply to Rule 37 sanctions. Nat’l
Front Page, LLC v. State ex rel. Pryor, 350 Ark. 286, 86 S.W.3d 848 (2002); Viking Ins. Co.
of Wisconsin v. Jester, 310 Ark. 317, 836 S.W.2d 371 (1992). Therefore, Chase’s argument
is without merit. Because the order does not strike Chase’s answer, the appeal cannot be
brought pursuant to Rule 2(a)(4). See Reynolds v. Lindberg, 2015 Ark. App. 324.
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Cite as 2017 Ark. App. 358
Motion to dismiss granted.
GRUBER, C.J., and HIXSON, J., agree.
Wright, Lindsey & Jennings LLP, by: Gary D. Marts, Jr.; and Quillings, Selander,
Lownds, Winslett & Moser, P.C., by: Marcie L. Schoutt, pro hac vice, for appellant.
Ford & Cook, PLC, by: Bryce D. Cook; and Brian G. Brooks, Attorney at Law, PLLC,
by: Brian G. Brooks, for appellees.
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