Rose v. Harbor East, Inc.
2013 Ark. 496
Ark.2013Background
- Steve Rose sought foreclosure on a 1989 consent judgment after filing motions to revive the judgment in 1999/2001 and again in 2009, alleging the judgment remained unsatisfied.
- Rose filed a petition for a writ of scire facias on February 25, 2009; an order of revivor was entered March 17, 2009.
- The Montgomery County clerk did not issue a writ of scire facias nor is there proof of service of such a writ before the 2009 order of revivor.
- Harbor East Property Owners Association (POA) and Recreational Management moved for summary judgment, arguing the 2009 revivor was void because the statute required issuance and service of a scire facias before revivor.
- The circuit court granted summary judgment for POA and Recreational, finding the 2009 revivor void for lack of jurisdiction; Rose appealed.
- The Arkansas Supreme Court affirmed, holding strict statutory service and issuance requirements for scire facias were not met, rendering the revivor void.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2009 revivor could not be collaterally attacked because it was a continuation of the 1989 action (revivor not a new action) | Rose: revivor is continuation of old suit, so the court retained jurisdiction and order is not void for collateral attack | POA/Recreational: the revivor is void for lack of jurisdiction because statutory scire facias procedure was not followed | The court treated the challenge as collateral and held the revivor was void for lack of jurisdiction because issuance/service of the writ was required |
| Whether filing a petition for writ of scire facias satisfied Ark. Code Ann. § 16-65-501’s requirement that a scire facias be "sued out" and served | Rose: timely filing and service of the petition satisfied the statute; the statute does not distinguish petition vs. writ | POA/Recreational: the statute requires the clerk to issue the writ and it must be served before revivor | Court: Filing the petition alone was insufficient; the clerk must issue the scire facias and it must be served per the statute |
| Whether Ark. R. Civ. P. 4 service rules apply to scire facias or whether statutory requirements govern | Rose: Rule 4 does not apply; statutory service not interpreted to require personal service as Rule 4 would | POA/Recreational: statutory service requirement governs and must be strictly followed; issuance and service of the writ indispensable | Court: Statutory service requirements govern scire facias; they must be strictly complied with and Rule 4 does not displace §16-65-501 |
| Whether equity requires allowing Rose to cure any procedural defects to revive the judgment | Rose: equity should permit him to correct defects and revive the judgment | POA/Recreational: revivor was void and equitable relief should not be granted | Court: Declined to grant equitable relief; Rose provided no convincing authority and failed to show entitlement to equitable cure |
Key Cases Cited
- Middleton v. Lockhart, 388 S.W.3d 451 (Ark. 2012) (scire facias is a continuation of the original suit and seeks execution of the existing judgment)
- Bohnsack v. Beck, 740 S.W.2d 611 (Ark. 1987) (issuance of the writ by the clerk starts the revivor process; writ occupies place of declaration and summons)
- Raymond v. Raymond, 36 S.W.3d 733 (Ark. 2001) (service of valid process is necessary to confer personal jurisdiction)
- Sides v. Kirchoff, 874 S.W.2d 373 (Ark. 1994) (a judgment rendered without notice is void)
- Lewis v. Bank of Kensett, 247 S.W.2d 354 (Ark. 1952) (a judgment entered on scire facias is not subject to collateral attack unless void on its face or jurisdictional defects exist)