2013 Ark. App. 595
Ark. Ct. App.2013Background
- Powell sued Fernandez for a 2009 automobile accident in Benton County.
- Powell sought extensions to perfect service; first extension granted within 120 days, second extension granted after 120 days.
- Fernandez was served June 30, 2012, during the second extension period.
- Fernandez answered Sept 2012; Powell moved to strike and sought a default judgment.
- Default judgment entered Nov 16, 2012; Fernandez moved to set aside asserting defective service and voidness.
- Trial court set aside the default judgment as void under Rule 55(c)(2) because second extension was untimely; Powell appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the default judgment was void for defective service | Powell | Fernandez | Default judgment void for improper extension timing |
| Proper standard of review for void judgment or Rule 55(c) relief | Powell urged de novo review for voidness | Fernandez urged abuse of discretion | De novo review applies to void judgments |
| Whether alternative service under Rule 4(f) existed to avoid delay | Powell had no need for alternative service | Fernandez could be served via warning order under Rule 4(f) | Powell could pursue Rule 4(f) warning-order service |
Key Cases Cited
- Nucor Corp. v. Kilman, 358 Ark. 107 (2004) (voidness of judgment involves pure question of law)
- Edwards v. Szabo Food Service, Inc., 317 Ark. 369 (1994) (motion to extend service time filed within 120 days can be valid despite post-expiration order)
- Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701 (2003) (Rule 6(b)/extension interplay discussed with Rule 4(i))