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2016 Ark. App. 158
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-15-845
RUBEN E. WATKINS Opinion Delivered March 9, 2016
APPELLANT
APPEAL FROM THE GREENE
V. COUNTY CIRCUIT COURT
[NO. CV-2013-170]
MICHAEL TURNER AND MEGAN HONORABLE MELISSA BRISTOW
RAMIREZ RICHARDSON, JUDGE
APPELLEES
AFFIRMED
RITA W. GRUBER, Judge
Ruben Watkins appeals the circuit court’s June 26, 2015 judgment against him that
awarded damages to each of two plaintiffs, Michael Turner and Megan Ramirez (now
appellees). Watkins contends that the circuit court committed reversible error (1) by
awarding compensatory damages and punitive damages that resulted from a May 8, 2015
default judgment, which was entered as a discovery sanction, and (2) by awarding the default
judgment as a discovery sanction. We affirm.
On September 20, 2013, appellees filed a complaint against Watkins for forcible entry
and detainer, assault and outrage, conversion, unjust enrichment, and violation of Arkansas
and federal Fair Housing Acts. Their complaint was based on the following allegations.
Appellees received an assignment of lease for a Paragould residence in August 2012 and, with
Watkins’s consent as lessor, agreed to pay rent of $600 a month. On November 15, 2012,
Watkins and his maintenance man arrived at the residence and told appellees that they must
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immediately vacate due to failure to pay rent. Appellees responded that they had not
received an eviction notice as required by law. Watkins went to his truck, returned with a
Ruger .380 handgun, pointed it at appellees and their young child, and said, “This is your
eviction notice.” Watson and the maintenance man made derogatory remarks, referring to
“coon hunting.” Watson directed several racial slurs toward appellee Turner, a person of
African American and Indonesian descent, and appellee Ramirez, a person of Hispanic and
Native American descent. Appellees called the Paragould Police Department because of the
gun threat. Watkins was arrested at the scene and charged with criminal assault but was
released from custody the same day. Fearing for their safety, appellees vacated the residence
without arrangements to remove some of their larger possessions; Watkins did not release
those items. Appellee Ramirez missed one day of work due to the incident. On March 21,
2013, Watkins was convicted in district court of third-degree assault.
On October 28, 2013, Watkins filed a motion for leave to file his answer out of time
under Arkansas Rule of Civil Procedure 6(b), a provision that gives the circuit court
discretion to accept an answer out of time for good cause shown. The motion recited that
Watkins was in poor health at seventy-nine years of age; he had suffered congestive heart
failure in the thirty days since service of the complaint, which had required several days’
hospitalization; he had been confined to his residence for extended times after being released
from the hospital and was dependent on oxygen; and the allegations in appellees’ complaint
were extensive and required an extensive answer. Watkins also filed an answer to appellees’
complaint on October 28, 2013. He denied the allegations that were the basis of each count;
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affirmatively pleaded defenses that included a failure to state a claim on which relief could
be granted, fraud, laches, unclean hands, and no government action; and prayed that the
complaint be dismissed.
On November 6, 2013, appellees responded to Watkins’s motion for leave to file
answer out of time, requesting that it be denied for lack of “just cause.” In the same filing,
they moved to strike his answer and moved for a default judgment.
Watkins filed a counterclaim on November 21, 2013, alleging that appellees had
voluntarily abandoned the premises after they were asked to vacate for failure to pay rent, and
praying for judgment in the amount of unpaid rent.
On February 21, 2014, the circuit court heard the parties’ arguments on Watkins’s
motion for leave to file answer out of time, appellees’ response to his motion, and appellees’
motions to strike and for default judgment. At the conclusion of the hearing, the court orally
granted Watkins’s motion for leave to file answer out of time; the record, however, contains
no written order reflecting any ruling on the motion.1
On November 18, 2014, appellees filed a motion for sanctions under Arkansas Rules
of Civil Procedure Rule 37(b)(2), which addresses sanctions for failure to comply with an
order for discovery. Under that provision, “the court in which the action is pending may
make such orders in regard to the failure as are just.” Ark. R. Civ. P. 37(b)(2) (2015).
1
It is clear that a motion for additional time in which to answer a complaint does not
extend the time for filing an answer under Arkansas Rule of Civil Procedure 12. Adams v.
Moody, 2009 Ark. App. 474, at 6–7,
324 S.W.3d 348, 352. The burden is on the movant to
obtain a ruling from the trial court, and a failure to do so constitutes a waiver of the motion.
Id.
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Appellees alleged in their motion that as of November 18, 2014—eight months after they
had propounded to Watkins interrogatories and requests for production of documents, on
February 27, 2014—he had not answered. The motion also alleged that Watkins had not
responded to a June 30, 2014 reminder letter to his counsel of the delinquency in answering
interrogatories and requests for production; to appellees’ August 12, 2014 motion to compel
discovery; and to the court’s October 30, 2014 order compelling him to produce discovery
by November 17, 2014. The motion asserted that Watkins’s right to defend should be
deemed waived due to his “willful refusal to participate in this litigation.” Appellees prayed
that the court, as allowed by Rule 37(b)(2)(C), enter an order “striking out pleadings or parts
thereof, or . . . rendering a judgment by default against the disobedient party.” Alternatively,
they prayed under Rule 37(b)(2)(A) for an order that the matters set forth in their complaint
“shall be taken to be established” or under –(b)(2)(B) for an order “refusing to allow the
disobedient party to support or oppose designated claims or defenses,” to include Watkins’s
counterclaim. See Ark. R. Civ. P. 37(b)(2)(A), (B).
By order of January 17, 2015, the court scheduled a May 8, 2015 hearing on appellees’
Rule 37 motion for relief. At the hearing, appellees’ counsel recounted that Watkins’s
counsel had not responded to the interrogatories, letter of reminder, order to compel, or
Rule 37 motion. Appellees’ counsel stated to the court, “I served everything on Mr.
Deprow [Watkins’s counsel]. . . . The court never signed an order of withdrawal. I am
seeking a default judgment as to liability and I would like to set a hearing on damages.” The
court orally ruled,
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Under the circumstances it appears Ruben Watkins has willfully failed and refused to
comply with the rules regarding discovery and a prior Order of Court dated October
31, 2014. He should not be allowed to proceed further by way of defense of this
matter. I find that as to the issue of liability, Turner and Ramirez are entitled to
judgment against Ruben Watkins in an amount to be determined at a further hearing
to be held in this case.
The court’s May 8, 2015 written order for sanctions included the following:
Pursuant to Arkansas Rule of Civil Procedure 37(b)(2)(A), all facts as set forth in the
[appellees’] Complaint shall be deemed established.
Pursuant to Arkansas Rule of Civil Procedure 37(b)(2)(B), [Watkins] is barred from
introducing any evidence opposing any of [appellees’] claims or supporting his
Counterclaim.
Pursuant to Arkansas Rule of Civil Procedure 37(b)(2)(C), judgment by default
should be entered against [Watkins] as to all issues of liability.
The court entered a default judgment against Watkins, dismissed his counterclaim with
prejudice, and scheduled a damages hearing for June 9, 2015.
The parties appeared with their respective attorneys at the damages hearing
conducted by Judge Melissa Richardson. Pursuant to its previous order for Rule 37
sanctions, the court treated all facts in appellees’ complaint as conclusively established and did
not consider any evidence by Watkins in opposition of claims. The court then heard
testimony and reviewed evidence from the parties about the amount of money damages on
each claim. Appellees testified to the events of November 2012 when Watkins ordered them
to vacate the residence, used racial slurs, pointed a gun at them, and joked that the police
knew they could not do anything to him. They also testified that he changed the locks
before they could retrieve their possessions and that he left some of their belongings outdoors,
where they became unusable. They testified to monetary damages they had sustained and to
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how they had otherwise suffered from these events. Watkins, then eighty-one years old,
testified that he was in poor health, owned multiple properties, had several bank accounts and
cash, was illiterate, and had lost half his property in a divorce four years earlier. He denied
pointing a gun at appellees or “stealing their possessions.” Watkins’s great-grandson testified
that he tried to help his great-grandfather, who was in poor health and illiterate and no longer
knew what he owned because he had quit caring after the divorce.
At the conclusion of the hearing, the court found that Watkins’s conduct warranted
imposition of damages and found appellees’ evidence to be credible and compelling in several
instances. The court orally stated,
I want to make very clear that the Court is required, under Arkansas law, based
upon the order that was entered on May 8, 2015, to accept as true the facts and
circumstances set forth in [appellees’] complaint. And Honorable David Laser, On
May 8, 2015, adjudged that [appellees] would have a judgment by default against . .
. Watkins. That [Watkins] is barred from introducing any evidence opposing any of
[appellees’] claims or supporting his own counterclaim. All facts as set forth in
[appellees’] complaint shall be deemed established. I want to make very clear that the
starting point, in this court’s analysis, is that [I] must take as true the facts alleged in the
. . . complaint.
If I take those facts as true, which I am required to do, I find that those facts are
absolutely appalling. Under Arkansas law and in this courtroom, indignation is put
aside. I am required to apply Arkansas law. Everyone that steps into this courtroom
is on equal footing under Arkansas law. Racial prejudice or bias will not be tolerated
under Arkansas law, in this courtroom.
The court found that appellees were entitled to compensatory and punitive damages on the
counts of forcible entry and detainer, assault and outrage, conversion, unjust enrichment, and
fair-housing violations.
The court entered a June 26, 2015 judgment on damages, reiterating its oral findings.
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On the charge of forcible entry and detainer, the court awarded $1,200 liquidated
damages—two months’ rental value—to be split by appellees. On assault, it awarded $3,000
to each appellee for the fright and horror resulting from Watkins’s extreme and outrageous
conduct. On conversion, it awarded $5,620 as the fair market value of their belongings, the
amount to be split evenly between appellees. It awarded each appellee $2,500 for humiliation,
shame, fear, and anxiety resulting from Watkins’s discriminatory conduct. Finding by clear
and convincing evidence that punitive damages were warranted for the fair-housing violation
due to Watkins’s willful and malicious conduct and that those punitive damages would serve
to punish him for his conduct and to deter others from pursuing a similar course, the court
awarded $10,000 to each appellee. From this order, Watkins timely appealed.
In his first point on appeal, Watkins contends that the circuit court erred by awarding
compensatory damages and punitive damages resulting from the previous default judgment
entered as a discovery sanction. He argues that the award of liability for compensatory and
punitive damages for his failure to respond amounts to double punishment. Watkins
complains that he was not allowed to controvert any allegations of the complaint—including
his purported acts of willful and deliberate intimidation and discrimination—that were
deemed completely true at the damages hearing and were the impetus for punitive damages.
He likens his case to Tricou v. ACI Management, Inc., 37 Ark. App. 51,
823 S.W.2d 924
(1992), where we reversed an award of punitive damages resulting from intentional and
fraudulent misrepresentations during contract negotiations.
It is well settled that to preserve an issue for appeal, the trial court must be apprised of
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the particular error alleged. T&T Chem. v. Priest,
351 Ark. 537, 540,
95 S.W.3d 750, 752
(2003). We will not address arguments raised for the first time on appeal; likewise, if a
particular theory is not presented at trial, the theory will not be reached on appeal. Ouachita
Wilderness Inst., Inc. v. Mergen,
329 Ark. 405, 413–14,
947 S.W.2d 780, 785 (1997). Here,
we summarily dispose of Watkins’s double-punishment argument because the abstract does
not reflect that it was presented to or ruled on by the circuit court.
Were we to address Watkins’s arguments regarding punitive damages, we would still
affirm. Here, the court—unlike the trial court in Tricou—specifically found that Watkins
exhibited willful and malicious conduct warranting punitive damages. He was assessed
punitive damages for his actions on November 15, 2012, not for his later failure to provide
discovery.
In his second point on appeal, Watkins contends that the circuit court committed
reversible error by awarding a default judgment as a discovery sanction. The trial court is
given wide latitude to determine the severity of sanctions. Calandro v. Parkerson, 333 Ark.
603,
970 S.W.2d 796 (1998). The granting of sanctions for discovery violations will not be
overturned absent a finding of an abuse of discretion. Matthews v. Matthews,
2009 Ark. App.
400,
322 S.W.3d 15.
Again, we will not address an argument not raised to the trial court. Watkins did not
respond to appellees’ November 2014 motion for Rule 37 relief and request for a default
judgment. He did not appear at the May 2015 hearing, at which the default judgment was
granted, to contest the motion. He did not move to set aside the default judgment, and he
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did not contest it at the damages hearing. The first time he argues that the default judgment
was improper is in his appellate brief. He is precluded from presenting this issue on appeal
because he never presented his argument to the circuit court, and we will not address it on
appeal.
Were we to address the granting of the default judgment, we also would affirm.
Arkansas Rule of Civil Procedure 37(a)–(c) clearly allows a trial court to impose severe
sanctions, which include a default judgment, for discovery violations. The circuit court
entered its default judgment after Watkins had failed to answer two motions, ignored the
court’s order to compel discovery, and failed to attend a hearing. At the time of the default
judgment, the requested discovery was nearly eighteen months overdue. The court found
that Watkins had “willfully failed and refused to comply with the rules regarding discovery
and a prior order of this court.” He was represented at all times in this litigation by an
attorney, who was fully aware of the sanctions requested. Watkins presents no convincing
argument that his age and health problems warranted further warning of the possibility of
severe sanctions.
Affirmed.
GLADWIN, C.J., and VIRDEN, J., agree.
Branch, Thompson, Warmath & Dale, P.A., by: Adam H. Butler, for appellant.
Jason Auer, Legal Aid of Arkansas, Inc., for appellees.
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