Wright v. Viele
2013 Ark. App. 471
| Ark. Ct. App. | 2013Background
- The Wrights sued in 1990 to quiet title to surface and mineral interests, alleging defects in a 1929 mineral conveyance and claiming adverse possession and payment of taxes.
- Some defendants were served personally; others were subject to constructive service by warning order after an affidavit stated their whereabouts were unknown. The warning order named "E. Crows" (and variants) but did not consistently identify "E. Graves."
- A 1991 consent/settlement decree quieted title to both surface and mineral interests in the Wrights; the decree recited proper service and defaults by remaining defendants.
- Decades later, appellees tracing title to E. Graves sought to set the 1991 decree aside, alleging defective service (misnamed parties and improper warning-order procedures) and lack of notice; they moved for summary judgment declaring the 1991 decree void.
- The circuit court granted summary judgment to appellees, finding the warning orders defective (no affidavit that 30 days had elapsed after first publication and omission of a legal description) and that the misnomer (E. Crows vs. E. Graves) was fatal; the Wrights appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of constructive service by warning order in 1990–91 | Wrights: complied with Rule 4; publication affidavits suffice and constructive service was proper | Appellees: service defective—no plaintiff/attorney affidavit that 30 days elapsed and no proper mailing; warning order lacked required content | Held: Service was invalid—Rule 4(j) required an affidavit by plaintiff/attorney that 30 days had elapsed (and mailing where applicable); publication affidavits alone insufficient |
| Sufficiency of warning order content | Wrights: warning order adequate | Appellees: warning order omitted a legal property description and misnamed a defendant | Held: Warning order was defective for lacking required description; misnomer was material and fatal |
| Effect of misnomer (E. Crows vs. E. Graves) | Wrights: decree binding; appellees’ claims time-barred or collateral attack | Appellees: misnomer prevented notice to true interested party (E. Graves) so decree void | Held: Misnomer was substantial; naming "E. Crows" rather than E. Graves rendered decree void as to those interests |
| Timeliness / statute of limitations | Wrights: challenge barred by three-year statute for setting aside deeds/judgments | Appellees: limitation inapplicable where there was no notice/service | Held: Limitations did not bar direct attack where judgment was void for lack of notice/service |
Key Cases Cited
- Nucor Corp. v. Kilman, 358 Ark. 107, 186 S.W.3d 720 (void-judgment review is a question of law)
- Cole v. First Nat’l Bank, 304 Ark. 26, 800 S.W.2d 412 (lack of service renders default judgment void)
- Horne v. Savers Fed. Sav. & Loan Ass’n, 295 Ark. 182, 747 S.W.2d 580 (constructive service allowed when identity/whereabouts unknown)
- Pulaski Choice, L.L.C. v. 2735 Villa Creek, L.P., 2010 Ark. App. 451, 376 S.W.3d 500 (publication affidavit does not replace plaintiff/attorney affidavit required by Rule 4)
- Crenshaw v. Special Adm’r of Estate of Ayers, 2011 Ark. 222 (material misnomer can be fatal)
- Shotzman v. Berumen, 363 Ark. 215, 213 S.W.3d 13 (same: substantial naming errors may void judgments)
- Rettig v. Ballard, 2009 Ark. 629, 362 S.W.3d 260 (service requirements strictly construed)