562 S.W.3d 905
Ark. Ct. App.2018Background
- Plaintiffs Phyllis and Sylvester Robinson sued Travis Thomas for personal injuries and sought service of process; a summons was prepared Sept. 21, 2016.
- Plaintiffs filed an affidavit requesting a warning order under Ark. R. Civ. P. 4(f)(1) stating a process server had attempted service “on numerous occasions” and that Thomas’s whereabouts remained unknown; the affidavit referenced an attached exhibit that was not filed.
- The clerk issued a warning order; plaintiffs later filed a second affidavit stating the warning order had been published and that restricted-delivery mail to Thomas’s last-known address was returned as undeliverable.
- Thomas did not answer within 30 days after publication; plaintiffs obtained a default judgment and the court struck Thomas’s late answer. Thomas moved to set aside the default judgment, arguing insufficient service under Rule 4(f)(1).
- The Robinsons later (in response to Thomas’s motion) filed the process server’s return stating two last-known addresses and that the server could not locate Thomas; the circuit court denied Thomas’s motion to set aside and struck his answer.
- On appeal the Arkansas Court of Appeals reviewed de novo whether the initial warning-order affidavit satisfied the Rule 4(f)(1) “diligent inquiry” requirement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service by warning order under Ark. R. Civ. P. 4(f)(1) was proper | The affidavit and subsequent filings showed process server attempts, publication, and returned mail — sufficient to issue warning order | The initial affidavit was conclusory, lacking details of attempts, addresses, or steps showing a diligent inquiry; belated proof cannot cure the initial defect | The affidavit was insufficient as a matter of law; service by warning order was invalid |
| Whether the default judgment is void for lack of personal jurisdiction | Service complied with Rule 4 via warning order and returned-mail affidavit, so judgment was valid | Invalid service voids the judgment and supports setting it aside under Rule 55(c) | Because service was invalid, the default judgment is voidable and must be set aside |
| Whether a later-filed process-server return can cure an inadequate initial affidavit | Plaintiffs contend the later return supplements the record and demonstrates diligence | Thomas contends Rule 4 requires the diligent-inquiry facts in the affidavit when the warning order is first sought, not later | The court held facts showing diligence must appear in the initial affidavit; later filing cannot cure the defect |
| Standard of review for setting aside default judgment based on jurisdictional defect | N/A | N/A | De novo review applies to whether a jurisdictional defect voids a default judgment |
Key Cases Cited
- Nucor Corp. v. Kilman, 358 Ark. 107 (de novo review of jurisdictional defect in default judgment)
- Self v. Hustead, 525 S.W.3d 33 (warning-order affidavit insufficient where it lacked facts showing diligent inquiry)
- XTO Energy, Inc. v. Thacker, 467 S.W.3d 161 (requirement that affidavits detail steps taken to locate defendant)
- Morgan v. Big Creek Farms of Hickory Flat, Inc., 488 S.W.3d 535 (example of affidavit describing multiple specific attempts and investigative steps that satisfied Rule 4)
- Wright v. Viele, 429 S.W.3d 314 (insufficient service can render a judgment void and subject to set-aside under Rule 55)