Self v. Hustead
2017 Ark. App. 339
| Ark. Ct. App. | 2017Background
- In August 2007 Self leased the Husteads’ house; he moved out in February 2008. The Husteads sued in August 2008 for breach of lease and damages (~$27,442.89).
- Plaintiffs sought service by warning order in January 2009 after an affidavit from their attorney asserted a "diligent inquiry," listed Self’s "last known address" as 3203 McDonald Avenue, and said personal service there had been unsuccessfully attempted.
- A warning order was issued and published; the circuit court entered default judgment against Self on April 1, 2009.
- In 2016 the Husteads sought contempt based on the default judgment; Self first learned of the judgment in July 2016 and moved to set aside the default judgment as void for defective service.
- Self submitted affidavits showing continuous residence in Rogers (different addresses) since 2008 and that he never lived on McDonald Avenue; he also stated the Husteads’ agent had his cell number after he moved.
- The circuit court denied the motion; on de novo review the Court of Appeals reversed, holding the warning-order affidavit failed to show the required, nonconclusory "diligent inquiry" under Ark. R. Civ. P. 4(f)(1).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service by warning order was valid under Ark. R. Civ. P. 4(f)(1), so that the default judgment is void for insufficient service | The Husteads contended their attorney’s affidavit showing a last-known address and an attempted personal service sufficed to authorize a warning order and constructive service | Self argued the affidavit was conclusory, failed to describe steps of a "diligent inquiry," did not establish that his whereabouts were unknown, and omitted available leads (e.g., his cell number and nearby Rogers residences) | The court held the affidavit was insufficient: mere recitation of "diligent inquiry" and listing a last-known address without facts about efforts to locate Self failed Rule 4(f)(1); default judgment was void and the denial to set it aside was reversed and remanded |
Key Cases Cited
- Bloodman v. Bank of Am., N.A., 482 S.W.3d 340 (discussing de novo review and standards for warning-order affidavits)
- Morgan v. Big Creek Farms of Hickory Flat, Inc., 488 S.W.3d 535 (strict construction of service rules and burden on moving party to show efforts to locate defendant)
- XTO Energy, Inc. v. Thacker, 467 S.W.3d 161 (warning-order affidavit held conclusory where it recited only that a diligent inquiry was made)
- Gilbreath v. Union Bank, 830 S.W.2d 854 (warning-order affidavit insufficient where it did not state whereabouts were unknown after inquiry)
- Billings v. U.S. Bank Nat’l Ass’n, 484 S.W.3d 715 (warning-order affidavit sufficient where it described specific failed service attempts and unknown present address)
- Smith v. Edwards, 649 S.W.2d 482 (affirming defective constructive service where affidavit used only boilerplate language and lacked factual inquiry)
- Morgan v. Century 21 Perry Real Estate, 79 S.W.3d 878 (affirming constructive service where affidavit recited investigative steps and inability to locate defendant)