Cite as
2016 Ark. App. 614
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-16-482
BRITTNEY G. YOUNG AND CAREY Opinion Delivered December 14, 2016
YOUNG
APPELLANTS APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT, SIXTH
DIVISION
V. [NO. 60CV-14-1413]
HONORABLE TIMOTHY DAVIS
FOX, JUDGE
JANE WELCH AND LARRY WELCH
APPELLEES AFFIRMED
PHILLIP T. WHITEAKER, Judge
This appeal involves a default judgment against appellants Brittney and Carey Young
that was obtained by appellees Jane and Larry Welch. The Youngs filed a motion to set aside
the default judgment, which the Pulaski County Circuit Dourt denied. The Youngs appeal,
raising several points. We affirm.
I. Background
The Welches wanted to build a home in North Little Rock, and they contracted with
the Youngs for the construction. The Welches subsequently sued the Youngs for breach of
contract, seeking damages of $58,143.1 The Welches attempted to serve the Youngs with the
1
The lawsuit also named Roy Treat as a defendant. Treat was served with the
complaint and answered it, but the Welches ultimately dismissed him from the suit. He is not
a party to this appeal.
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summons and complaint. After repeatedly attempting personal service and being unable to
find a forwarding address, the Welches filed an affidavit for warning order. The Pulaski
County Circuit Clerk issued a warning order, which was published in the North Little Rock
Times. After the Youngs failed to respond to the warning order, the Welches filed a motion
for default judgment against the Youngs, which the circuit court granted. The order granting
default judgment also awarded the Welches the damages they sought, as well as attorney’s
fees and interest.
After obtaining the default judgment, the Welches filed a writ of garnishment. In
response to this collection attempt, the Youngs filed a motion to set aside the default
judgment and motion to quash garnishments.2 In their motion to set aside the default
judgment, the Youngs alleged that the Welches failed to make a diligent inquiry into their
whereabouts prior to obtaining service by warning order, as is required by Arkansas Rule of
Civil Procedure 4(f)(1) (2015). The circuit court denied the motion, and the Youngs filed
a timely notice of appeal.
II. Standard of Review
Default judgments are governed by Rule 55 of the Arkansas Rules of Civil Procedure.
Rule 55(c) sets forth the circumstances pursuant to which a court may set aside a default
judgment:
The court may, upon motion, set aside a default judgment previously entered
for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2)
2
The circuit court denied the motion to quash garnishments. The Youngs have not
appealed that denial.
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the judgment is void; (3) fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct of an adverse party; or (4) any other
reason justifying relief from the operation of the judgment. The party seeking to have
the judgment set aside must demonstrate a meritorious defense to the action;
however, if the judgment is void, no other defense to the action need be shown.
Ark. R. Civ. P. 55(c) (2015).
On appeal, the Youngs argue that the circuit court erred in refusing to set aside the
default judgment because they were not properly served pursuant to Rule 4 of the Arkansas
Rules of Civil Procedure, making the default judgment void under Rule 55(c)(2). In cases
where the appellant claims that the judgment is void under Rule 55(c)(2), the appellate
courts will review a trial court’s denial of a motion to set aside a default judgment using a de
novo standard. Nucor Corp. v. Kilman, 358 Ark. 107, 118,
186 S.W.3d 720, 727 (2004).
III. Discussion
Arkansas law is long settled that valid service of process is necessary to give a court
jurisdiction over a defendant. Shotzman v. Berumen, 363 Ark. 215,
213 S.W.3d 13 (2005);
Smith v. Sidney Moncrief Pontiac, Buick, GMC Co.,
353 Ark. 701,
120 S.W.3d 525 (2003);
Raymond v. Raymond,
343 Ark. 480,
36 S.W.3d 733 (2001). It is equally well settled that
statutory service requirements must be strictly construed and compliance with them must be
exact because they are in derogation of common-law rights.
Shotzman, supra; Carruth v.
Design Interiors, Inc.,
324 Ark. 373,
921 S.W.2d 944 (1996). The supreme court has held that
the same reasoning applies to service requirements imposed by court rules.
Nucor, supra;Carruth, supra. As a result, default judgments are void ab initio due to defective process
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regardless of whether the defendant had actual knowledge of the pending lawsuit.
Nucor,
supra;Smith, supra.
The Youngs advance numerous arguments in support of their contention that the
circuit court erred in refusing to set aside the default judgment. For example, they argue that
the notice of default judgment was not published in a newspaper having general circulation
in a county where the action was filed; that Rule 4(f)(2) requires the party seeking default
judgment to mail a copy of the complaint to the defendant at his or her last known address
by any form of mail with delivery restricted to addressee; that the Welches did not put in
their notice the specific wording of “default judgment” as required by Rule 4(f)(2); that the
Welches did not file any documents that indicated they attempted to mail the Youngs the
complaint by restricted delivery mail; that the answer filed by codefendant Roy Treat inured
to the Youngs’ benefit; and that a default judgment establishes only liability, not the extent
of damages, and the Welches did not request or receive a hearing on their damages.
None of these arguments, however, was presented to the circuit court, and they are
therefore not preserved for this court’s review. Wise v. Harper, 2015 Ark. App. 702,
477
S.W.3d 565 (refusing to address arguments pertaining to the circuit court’s refusal to set aside
a default judgment where the arguments were being raised for the first time on appeal);
Morgan v. Century 21 Perry Real Estate,
78 Ark. App. 180,
79 S.W.3d 878 (2002) (same).
The Youngs’ sole argument that is preserved for appeal is their claim that the Welches
failed to conduct a diligent inquiry into their whereabouts before serving them by warning
order. Service by warning order is governed by Arkansas Rule of Civil Procedure 4(f)(1).
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That rule provides that, if it appears by the affidavit of a party seeking judgment or his
attorney that, after diligent inquiry, the whereabouts of a defendant remains unknown,
service shall be by warning order issued by the clerk. See Scott v. Wolfe,
2011 Ark. App. 438,
384 S.W.3d 609. A mere recitation in an affidavit that a diligent inquiry was made is not
sufficient. Morgan v. Big Creek Farms of Hickory Flat, Inc.,
2016 Ark. App. 121,
488 S.W.3d
535. An affidavit will be deemed insufficient if it is conclusory or “contain[s] no indication
of what steps were taken as part of the required ‘diligent inquiry’ as to the whereabouts” of
a defendant. XTO Energy, Inc. v. Thacker,
2015 Ark. App. 203, at 9,
467 S.W.3d 161, 168.
The burden is on the moving party to demonstrate to the court that he or she actually
attempted to locate the defendant. Morgan, supra (citing Smith v. Edwards,
279 Ark. 79,
648
S.W.2d 482 (1983)).
Given this framework, we examine the steps taken by the Welches to serve the
Youngs. The Welches employed Davis Process Service (“Davis”) to serve the complaint and
summons on the Youngs. According to the process server, the first attempt at service was
made at 311 Commentry Way in Little Rock. On April 21, 2014, process server Michael
Riegler reported to Davis that after many attempts, he had been unable to get anyone to
answer the door at this address, even though a neighbor told Riegler that the house was
occupied. On May 7, 2014, process server Jan Caple reported to Davis that she had likewise
been unable to get anyone to the door, despite many attempts. Caple further stated that she
was sure the house was occupied, because she had observed trash cans at the street and then
later back at the house. Both Riegler and Caple left multiple voice messages at the phone
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number provided to them, but neither ever received a call back from either defendant.
Additionally, neither Riegler nor Caple ever saw a vehicle present at the Commentry Way
address.
Davis documented its further attempts at service as follows:
On May 7, 2014 an FOI request for each defendant was forwarded to the
72223 Post Office; they were returned May 15, 2014 marked “Not known at address
given.”
Research performed by this office netted 2 possible previous addresses for the
2 defendants. On May 15, 2014 an FOI request for each defendant was forwarded to
the 72190 Post Office for Post Office Box 95322. They were returned May 19, 2014
marked “Delivered as addressed, street address of boxholder is 912 Valley Creek
Point, North Little Rock, AR 72116.” On May 19, 2014 an FOI request for each
defendant was forwarded to the 72116 Post Office for 912 Valley Creek Point
address. They were returned marked “Moved, left no forwarding address.”
Research performed by this office netted no other information that might aid
in service of process.
Attached to the process server’s document were copies of the FOI requests that had been
sent to the postmasters.
This court recently found a similarly detailed affidavit to be legally sufficient in
Morgan, supra. In that case, as in the instant one, the process servers provided affidavits setting
out the numerous steps they had taken to find and serve the defendants at multiple addresses
over the course of several months. We held that the plaintiff conducted a diligent inquiry
into the whereabouts of the defendants sufficient to satisfy the constructive-service provision
of Rule 4(f). Morgan, 2016 Ark. App. 121, at 6,
488 S.W.3d at 539. The affidavit in the
instant case is likewise sufficient to demonstrate that the Welches conducted a diligent
inquiry into the Youngs’ whereabouts. Accordingly, we conclude that the service by warning
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order was effectuated in compliance with Rule 4(f), and the subsequently entered default
judgment was not void for want of service.
Affirmed.
VIRDEN and GLOVER , JJ., agree.
Tona M. DeMers, for appellants.
Matthews, Sanders & Sayes, P.A., by: William Roy Sanders and Gail O. Matthews, for
appellees.
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