Self v. Hustead

2017 Ark. App. 339, 525 S.W.3d 33, 2017 Ark. App. LEXIS 353
CourtCourt of Appeals of Arkansas
DecidedMay 24, 2017
DocketCV-17-21
StatusPublished
Cited by3 cases

This text of 2017 Ark. App. 339 (Self v. Hustead) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Self v. Hustead, 2017 Ark. App. 339, 525 S.W.3d 33, 2017 Ark. App. LEXIS 353 (Ark. Ct. App. 2017).

Opinion

LARRY D. VAUGHT, Judge

|rOn April 1, 2009, the Washington County Circuit Court entered a default judgment against Jerry Michael Self in a breach-of-contract case brought by Stephen and Ruth Hustead (“the Husteads”). In 2016, Self moved to set aside the default judgment, and the circuit court denied his motion. On appeal, Self contends that the trial court erred in denying the motion, arguing that the default judgment was void due to defective constructive service, which had been effectuated by a warning order. After conducting a de novo review, we agree and .reverse and remand the circuit court’s order denying Selfs motion to set aside the default judgment,

In August 2007, the Husteads and Self entered into a one-year agreement, whereby Self agreed to pay monthly rent to lease the Husteads’ house in Huntsville, Arkansas. In February 2008, Self moved out of the Husteads’ house. On August 14, 2008, the Husteads filed a Lcomplaint against Self seeking damages for breach of the lease. 1 In December 2008, the Hu-steads requested and were granted an extension of time for service of process. In January 2009, the Husteads’ attorney filed an affidavit for warning order that stated:

Comes now J. David Zurborg/Attorney for Plaintiffs, and upon his Oath states as follows: • ■
1. That I have made diligent inquiry and that it is my information and belief that the Defendant Jerry Michael Selfs last known address was 3203 McDonald Avenue, Springdale, Washington County, Arkansas 72762.
2. Personal service upon Defendant was unsuccessfully attempted by Carolyn Williamson, licensed process server at said address.
3. That the Clerk of this Court should forthwith issue a Warning Order directing the defendant to appear and show cause, if any, why the relief prayed for by the Plaintiffs should not be granted.

A warning order was issued' by the court on January 2, 2009, and published in the newspaper thereafter. On April 1, 2009, the circuit court issued an order for default judgment against Self in the amount of $27,442.89, plus cost's and attorney’s fees.

In June 2016, the Husteads petitioned the court for a contempt citation and an order to appear based upon Selfs failure “to obey” the order of default judgment. The circuit court entered an order to appear and show cause on June 27, 2016, and set the matter-for a hearing on July 28, 2016,

On July 28, 2016, prior to the show-cause hearing, Self filed a motion to set aside the default judgment. Among other reasons not at issue on-appeal, Self argued that the default | .judgment was void pursuant to Arkansas Rule of Civil Procedure 55(c)(2) 2 because it was “unclear that service by warning order was appropriate under the . circumstances then present.” Self later argued that he had no knowledge of the Husteads’ lawsuit, the default judgment, or the show-cause hearing until July 21, 2016. Self filed a renewed motion to set aside the default judgment on August 19, 2016, and .attached his affidavit that stated that he had advised the Hu-steads that he was vacating their home, in February 2008; that since that time he had been living in Rogers, Arkansas, although he had worked in Van Burén and Fayetteville; that he had never lived on a street named “McDonald” in his entire life; and that the Husteads’ real-estate agent called and talked to him on his cell phone shortly after'he left the Husteads’ home.

On August 26, 2016, Self filed a second renewed motion to dismiss, arguing that the Husteads’ affidavit for warning order failed to satisfy Arkansas Rule of Civil Procedure 4(f)(1). He submitted a second affidavit, stating that from the time he left the Husteads’ home in 2008 until 2012, he had lived at 2614 Everest Avenue, Rogers, AR; from 2012 to 2013, he had lived at # 68B Wellington Circle, Rogers, AR; and from 2013 to the present, he lived at 4103 W. Seneca Road, Rogers, AR. He reiterated that neither he nor any of his family members had lived on a street named “McDonald.” He stated that after he had moved out of the Husteads’ home, he had worked as a general manager at an automobile dealership and currently worked as a real-estate agent. On October 6, 2016, the circuit court denied Selfs motion to set aside the default judgment. Self timely appealed.

14Our standard of review for an order denying a motion to set aside a default judgment depends on the grounds on which the appellant challenges the default judgment. In cases in which the appellant claims that the default" judgment is void, our review is de novo, and we give no deference to the circuit court’s ruling. Bloodman v. Bank of Am., N.A., 2016 Ark. App. 67, at 5, 482 S.W.3d 340, 343. Because Selfs argument on appeal concerns allegations of insufficient service of process, and default judgments are void ab initio due to defective process, we review Selfs appeal de novo. Id., 482 S.W.3d at 343.

Self argues on appeal that the circuit court erred in failing to set aside the default judgment because it was void for insufficient service of process. More specifically, he contends that the Husteads failed to strictly comply with Arkansas Rule of Civil Procedure 4(f)(1), which governs service by warning order. He argues that the Husteads failed to conduct a diligent inquiry into his whereabouts and that just stating that their attorney made a diligent inquiry is not sufficient. Citing Arkansas Code Annotated section 16-65-108, 3 Self argues that because the default judgment is void, all proceedings resulting from the default judgment are also null and void.

Arkansas law is long settled that valid service of process is necessary to give a court jurisdiction over a defendant. Morgan v. Big Creek Farms of Hickory Flat, Inc., 2016 Ark. App. 121, at 3, 488 S.W.3d 535, 538 (citations omitted). It is equally well settled that statutory service requirements must be strictly construed and compliance with them must be exact because they Rare in derogation of common-law rights. Id., 488 S.W.3d at 538 (citations omitted). The supreme court has held that the same reasoning applies to service requirements imposed by court rules. Id., 488 S.W.3d at 538 (citations omitted).

Rule 4(f)(1) authorizes service by warning order if it appears from the affidavit of a party or his or her attorney that, “after diligent inquiry, the identity or whereabouts of a defendant remains unknown.” Ark. R. Civ. P. 4(f)(1). We have stated that Rule 4(f) requires more than a conclusory affidavit stating that a diligent inquiry had been made in order to have valid service by publication. XTO Energy, Inc. v. Thacker, 2015 Ark. App. 203, at 9, 467 S.W.3d 161, 167 (citations omitted). A mere recitation in an affidavit that a diligent inquiry was made is not sufficient. Id. at 9, 467 S.W.3d at 168 (citations omitted). The burden is on the moving party to demonstrate to the court that he or she actually attempted to locate the defendant. Morgan, 2016 Ark. App. 121, at 5, 488 S.W.3d at 539 (citations omitted).

In Gilbreath v. Union Bank, 309 Ark. 360, 363-64, 830 S.W.2d 854

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Bluebook (online)
2017 Ark. App. 339, 525 S.W.3d 33, 2017 Ark. App. LEXIS 353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/self-v-hustead-arkctapp-2017.