ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION III

BROOKSHER L. BANKS, Individually and d/b/a FASHION PARK CLEANERS & FASHION PARK CLEANERS, INC.

APPELLANTS

V.

CAPITOL CHEMICAL AND SUPPLY COMPANY

APPELLEE

CA 01-520

DECEMBER 19, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CV 1999-11647]

HONORABLE WILLARD PROCTOR, JR., CIRCUIT JUDGE

AFFIRMED

The appellants, Brooksher L. Banks and Fashion Park Cleaners, Inc., appeal from a default judgment entered against them, and in favor of the appellee Capitol Chemical and Supply Company. On appeal, appellants argue that the trial court abused its discretion in entering a default judgment, and in extending the default judgment to the issue of damages. We find no error and affirm.

Appellee filed suit in Pulaski County Circuit Court, Fifth Division, against Brooksher L. Banks, d/b/a Fashion Park Cleaners. The suit was filed to collect a balance owed to appellee on an open account. The original agreement between the parties was that appellee would supply chemicals to Fashion Park Cleaners. An open account was set up, and appellee began supplying chemicals, and Fashion Park Cleaners began making monthly payments on

the account. Fashion Park Cleaners fell in default on the account and appelleefiled a complaint. Along with the complaint, appellee filed an affidavit of account with an itemized statement of the account stating that as of December 20, 1999, Fashion Park Cleaners owed $108,815.12. On April 13, 2001, an amended complaint was filed, alleging that Mr. Banks, was liable for fraud. Appellee alleged that as president and owner of Fashion Park Cleaners, Mr. Banks made personal assurances, prior to the filing of the complaint that the account would be paid in full. Appellee alleged that it specifically and justifiably relied on these statements to its detriment. The amended complaint was filed against Brooksher L. Banks, individually and d/b/a Fashion Park Cleaners, and Fashion Park Cleaners.

On February 1, 2000, appellee served appellants interrogatories and requests for production of documents. Appellants filed a motion for protective order.1 Appellee filed a motion to compel on July 19, 2000. Appellants answered the interrogatories on August 18, 2000. However, appellants objected to all of the interrogatories and all of the requests for admission. On July 7, 2000, appellee served upon appellants a second set of interrogatories and requests for production. These were never answered. On August 30, 2000, appellee filed an amended motion to compel.

On September 1, 2000, a pre-trial hearing was held, at which appellants failed to appear. On October 6, 2000, as sanctions for appellants' failure to participate and adhere tothe Arkansas Rules of Civil Procedure, with respect to discovery, the trial court struck appellants' answer and awarded a default judgment in the amount of $108,815.12 to appellee. Appellants filed a motion to set aside the judgment. However, this motion was not ruled on by the trial court within thirty days, and was thus deemed denied.

The imposition of sanctions for failure to provide with discovery rests in the trial court's discretion, and our supreme court has repeatedly upheld the trial court's exercise of such discretion in fashioning severe sanctions for flagrant discovery violations. Calandro v. Parkerson, 333 Ark. 603, 970 S.W.2d 796, 799 (1998). "There is no requirement under Rule 37, or any of our rules of civil procedure, that the trial court make a finding of willful or deliberate disregard under the circumstances before sanctions may be imposed for the failure to comply with the discovery requirements." Id at 608, 970 S.W.2d 799. Here, the trial court specifically found that appellants did not exercise good faith in connection with their efforts to comply with discovery.

Arkansas Rule of Civil Procedure 37(d) states in relevant part:

If a party, or an officer, director or managing agent of a party or person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party, fails (1) to appear before the officer who is to take his deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under rule 33, after proper service of the interrogatories, or (3) to serve a written response to request for inspection submitted under rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others may take any action authorized under paragraphs (A), (B) and (C) of subdivision (b)(2) of this rule.

The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to acthas applied for a protective order as provided in Rule 26(c).

Thus, Rule 37(d) allows the court to impose such sanctions that are allowed in

sections (A), (B), and (C) of Rule 37(b)(2). Under sections (A), (B), and (C) of Rule

37(b)(2), the court is allowed the enter such orders as the following:

(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;

(C) An 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.

In the present case, the trial court entered a default judgment against appellants as a result of appellants' failure to comply with discovery procedures. Appellants argue this was an abuse of the trial court's discretion. We disagree. Appellants were served with two sets of interrogatories by appellee. Appellants objected to all of the interrogatories in appellee's first set. Appellants failed to respond at all to appellee's second set of interrogatories. Also, appellants failed to appear at the pre-trial hearing. Under Rule 37(b)(2)(C), a trial court may render a default judgment against a disobedient party. We hold that the trial court did not abuse this discretion when it did just that in this case. Our holding is not based on any one violation by appellants, but instead on appellants complete failure to comply with discovery procedures. We cannot say that the trial court erred in finding that appellants did notexercise good faith in connection with their efforts to comply with discovery.

Appellants also argue that the trial court abused its discretion in granting a default judgment on the issue of damages. Again, we disagree. Generally, a default judgment establishes liability but not the extent of damages. Miller v. Transamerica Commercial Finance Corp., 74 Ark. App. 237, 242, 47 S.W.3d 288, (2001). Thus, proof must be presented as to the amount of damages. Id. However, there is an exception to the proof requirement in a suit filed on an account where a verified statement of the account is filed with the complaint. Ark. Code Ann. § 16-45-104 (Repl. 1999); Miller, supra. In any suit on an account, the affidavit of the plaintiff, duly taken and certified according to law, that the account is just and correct shall be sufficient to establish the account, unless the defendant denies under oath the correctness of the account, in which case the plaintiff must prove the account by other evidence. Ark. Code Ann. § 16-45-104.

Here, appellee filed an affidavit of account stating that appellants owed it $108,815.12. The affidavit was made before a notary public and was a sufficient verification of the account. See Burns v. Hall, 234 Ark. 943, 356 S.W.3d 235 (1962). Appellant did not deny the correctness of appellee's verification, thus the affidavit of account was sufficient to support the default judgment award.

Affirmed.

Baker, J., agrees.

Bird, J., concurs.

1 We have found nothing in the record to indicate that this motion was ever set for hearing or ruled on by the trial court.