Taylor v. Miles

2013 Ark. App. 762

• Court: Court of Appeals of Arkansas
• Decided: December 18, 2013
• Docket: CV-13-108
• Status: Published

Opinion

Cite as 2013 Ark. App. 762

ARKANSAS COURT OF APPEALS DIVISION IV CV-13-108 No.

Opinion Delivered December 18, 2013

JACQUELINE TAYLOR APPEAL FROM THE LONOKE APPELLANT COUNTY CIRCUIT COURT [NO. CV-10-365] V. HONORABLE SANDY HUCKABEE, CYNTHIA MILES JUDGE APPELLEE

AFFIRMED

WAYMOND M. BROWN, Judge

Appellant Jacqueline Taylor appeals the November 5, 2012 decree quieting title to

certain lots in Lonoke County to appellee Cynthia Miles.1 Appellant argues that because

appellee failed to obtain valid service on appellant within 120 days of filing the petition to

quiet title, the decree quieting title must be set aside. We affirm.

The pertinent facts of this case are not in dispute. Appellee filed her petition to quiet

title on April 28, 2010, claiming that she had adversely possessed certain lands. Appellant was

named as a defendant in the petition.2 Appellee published her notice of the quiet-title action

1 Lots are described as:

LOTS THREE (3), FOUR (4), FIVE (5), AND SIX (6) BLOCK ONE (1), MCQUEEN ADDITION CITY OF CARLISLE, LONOKE COUNTY, ARKANSAS. 2 The petition was filed against Bertha Nichols Estate, Jacqueline Taylor, and Unknown Heirs of Bertha Nichols Estate. Cite as 2013 Ark. App. 762

for four weeks in the local paper beginning on May 12, 2010. Appellee attempted service on

appellant by certified, restricted mail on June 3, 2010, to the address listed for appellant with

the Lonoke County Tax Assessor. This mail was returned and marked “unclaimed.”

Appellee next attempted service via the sheriff of Jackson County, Missouri, at the same

address. The sheriff was advised that no one by appellant’s name lived at the address. At a

hearing held on September 3, 2010, the court advised the parties that the case would not

proceed further until service was perfected on all of the defendants. Appellee filed an affidavit

for warning order September 23, 2010. On September 24, 2010, the court signed a warning

order. The warning order was published on September 29, 2010, and again on October 6,

2010.

Appellant filed an answer on July 12, 2012, claiming an interest in the property. She

stated that she was a “certified heir to the Bertha Nichols Estate” and she denied appellee’s

claim of adverse possession. Appellant asked the court to deny appellee’s petition and that

“the Plaintiffs and anyone who may be claiming title by and through or under them enjoined

temporarily and permanently from claiming any interest in the property.” She further asked

the court to determine that she and “other heirs has [sic] legal and real title to said property

and all other just and proper relief to which she may be entitled.” Appellee filed a motion for

default judgment, a motion to strike appellant’s answer, and a motion for judgment on the

pleadings on July 23, 2012. The trial court held a hearing on appellee’s motion on July 30,

2012. The court declined to make a ruling on appellee’s motions at that time, noting that

appellant still had time to file a response. On August 17, 2012, appellant filed a motion to

2 Cite as 2013 Ark. App. 762

dismiss, claiming appellee did not perfect service on her before 120 days as mandated by Rule

4(i) of the Arkansas Rules of Civil Procedure, and did not seek an extension to perfect service.

On August 17, 2012, appellant also responded to appellee’s July 23, 2012 motions, again

arguing that service had not been perfected within the statutory limit.

The court filed a decree quieting title to the property in appellee on November 5,

2012. In the order, the court found that proper notice and service of process had been

effectuated. The court denied and dismissed the remaining claims for relief. Appellant’s

timely notice of appeal was filed on December 4, 2012. This appeal followed.

Appellant argues that the trial court lost jurisdiction to take any action on the case

because appellee did not serve her within the time specified in the rule. Therefore, according

to appellant, the trial court erred by granting appellee’s petition to quiet title. Quiet-title

actions have traditionally been reviewed de novo as equity actions.3 However, we will not

reverse the circuit court’s findings in such actions unless the findings are clearly erroneous.4

A finding of fact is clearly erroneous when, although there is evidence to support it, we are

left with the definite and firm conviction that a mistake has been made.5

While we agree with appellant that statutory service requirements must be strictly

construed and that compliance with them must be exact,6 we find her argument unavailing.

3 City of Cabot v. Brians, 93 Ark. App. 77, 216 S.W.3d 627 (2005). 4 Id. 5 Id. 6 See Bob Cole Bonding v. State, 340 Ark. 641, 13 S.W.3d 147 (2000).

3 Cite as 2013 Ark. App. 762

“It is well settled that pursuant to Ark. R. Civ. P. 12(h)(1), a party waives the defense of

sufficiency of process under Ark. R. Civ. P. 12(b)(4) if he or she fails to raise the argument

in either the answer or a motion filed simultaneously with or before the answer.”7 Appellant

filed her answer on July 12, 2012. The answer contained no assertion that service of process

was insufficient. Appellant did not object to, or reserve any issues concerning service of

process, adequacy, or sufficiency of service of process. Additionally, appellant sought

affirmative relief, that is, the pleading filed was more than a defensive action.8 Appellant asked

not only that appellee’s petition be denied, she asked that persons be enjoined from claiming

an interest in the property. Appellant did not challenge service until August 17, 2012, when

she filed a motion to dismiss the case. Therefore, under Ark. R. Civ. P. 12(h)(1), appellant’s

failure to assert the defense of insufficiency of service of process in her initial pleading resulted

in a waiver of the defense. Accordingly, we affirm.

Affirmed.

WYNNE and HIXSON, JJ., agree.

Ronald Carey Nichols, for appellant.

Stuart Law Firm, P.A., by: J. Michael Stuart, for appellee.

7 Dunklin v. First Magnus Fin. Corp., 79 Ark. App. 246, 86 S.W.3d 22 (2002). 8 Wallace v. Hale, 341 Ark. 898, 20 S.W.3d 392 (2000) (citing Storey v. Brewer, 232 Ark. 552, 339 S.W.2d 112 (1960)).