Howard v. Codling
2013 Ark. App. 641
Ark. Ct. App.2013Background
- William Codling (age 91) filed a four‑count counterclaim against his children Elaine and Larry (and claims against Elaine’s husband Don) in response to their petition seeking appointment of a conservator/guardian.
- William served his counterclaim on Elaine and Larry through their attorney but did not serve Don with a summons or copy of the counterclaim. Don was not a party to the original petition.
- Elaine, Larry, and Don jointly filed a response denying allegations and moved to dismiss the counterclaim; Don’s paper was filed 153 days after the counterclaim was filed.
- William moved to strike the answers as untimely and argued the court lacked personal jurisdiction over Don under Ark. R. Civ. P. 4(i) (no service within 120 days). The circuit court orally said it lacked jurisdiction over Don but its written order struck the answers as untimely and entered partial default judgment on Count IV.
- The Court of Appeals reviewed the order striking answers and entering default judgment and reversed the striking of Don’s answer, reasoning that because Don was never served he had no Rule 12 deadline and his response was not untimely; the court remanded unresolved issues (including whether the common‑defense doctrine applies and reconsideration of Count IV).
Issues
| Issue | Plaintiff's Argument (William) | Defendant's Argument (Appellants) | Held |
|---|---|---|---|
| 1. Whether the court properly struck Don Howard’s answer as untimely | Don’s answer was filed after the 30‑day answer period and service was required; Rule 4(i) shows no jurisdiction over Don | Don was never served, so Rule 12 deadline never began; his filing was not untimely | Reversed: court erred in striking Don’s answer (no valid service → no Rule 12 deadline) |
| 2. Whether the common‑defense doctrine makes Don’s answer applicable to Elaine and Larry | Common‑defense inapplicable because Don was not in the case and not properly served | Don’s common defense should save Elaine and Larry’s defenses because they filed a joint response | Not decided on appeal; remanded for circuit court to determine applicability of common‑defense doctrine |
| 3. Whether the circuit court lacked subject‑matter jurisdiction to quiet title (Count IV) | Court had authority to enter relief on Count IV | Appellants argued lack of jurisdiction and other defenses; default on Count IV may be void if jurisdiction lacking | Court of Appeals did not affirm quieting; remanded for reconsideration of Count IV in light of reversal of striking Don’s answer |
| 4. Whether a default judgment is void if the court lacked personal jurisdiction over a defendant | Default judgment valid as entered | A default judgment is void if the trial court lacked personal jurisdiction over the person | Court acknowledged that a default judgment is void without personal jurisdiction and remanded accordingly |
Key Cases Cited
- Looney v. Blair, 2010 Ark. 479 (discretionary review standard for striking answers/default)
- Rennels v. Four Seasons HVAC Distibs., 2011 Ark. App. 274 (standard of review for striking answer/default)
- Littles v. Office of Child Support Enforcement, 2009 Ark. App. 686 (personal‑jurisdiction defense may be waived)
- Raymond v. Raymond, 343 Ark. 480 (service of valid process required for personal jurisdiction)
- Nat’l Home Ctrs., Inc. v. Coleman, 370 Ark. 119 (written order controls over conflicting oral ruling)
- J & V Rest. Supply & Refrigeration, Inc. v. Sup. Fixture Co., 76 Ark. App. 505 (default judgment void if court lacked personal jurisdiction)