Young v. Welch
2016 Ark. App. 614
| Ark. Ct. App. | 2016Background
- Jane and Larry Welch contracted with Brittney and Carey Young to build a home; the Welches sued the Youngs for breach of contract seeking $58,143.
- Process servers made multiple unsuccessful personal-service attempts at the Youngs’ listed addresses, left voicemail messages, and observed signs the premises were occupied but saw no occupants or vehicles.
- The process server sent FOI/postmaster inquiries for multiple addresses; one returned “Not known at address,” another indicated delivery to a PO Box with a street address showing the occupants had “Moved, left no forwarding address.”
- The Welches obtained a warning order under Ark. R. Civ. P. 4(f)(1), published notice in the local paper, and secured a default judgment awarding damages, fees, and interest.
- The Youngs moved to set aside the default judgment and to quash garnishments, arguing inadequate diligent inquiry under Rule 4(f)(1); the circuit court denied the motion and the Youngs appealed.
Issues
| Issue | Plaintiff's Argument (Welch) | Defendant's Argument (Young) | Held |
|---|---|---|---|
| Whether service by warning order complied with Ark. R. Civ. P. 4(f)(1) | Process-server affidavits showing multiple attempts, FOI/postmaster inquiries, and lack of forwarding address demonstrate diligent inquiry | Affidavits were insufficient; Welches failed to diligently inquire into Youngs’ whereabouts before using warning order | Court held the process-server affidavit was sufficiently detailed; Rule 4(f) complied with and service was valid |
| Whether default judgment was void for lack of service | Service was proper, so judgment is valid | Judgment void ab initio for defective process; must be set aside | Judgment not void; trial court denial of motion to set aside affirmed |
| Preservation of other service-related claims | N/A | Youngs raised additional defects (publication county, restricted mail, wording, damages hearing) | Court declined to review those claims because they were not raised below |
| Standard of review for claim that judgment is void | N/A | N/A | Appellate court reviews de novo when void-judgment claim is asserted under Ark. R. Civ. P. 55(c)(2) |
Key Cases Cited
- Nucor Corp. v. Kilman, 358 Ark. 107, 186 S.W.3d 720 (discussing when default judgment is void for defective service)
- Shotzman v. Berumen, 363 Ark. 215, 213 S.W.3d 13 (service of process required for jurisdiction)
- Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525 (service requirements strictly construed)
- Raymond v. Raymond, 343 Ark. 480, 36 S.W.3d 733 (jurisdictional importance of valid service)
- Carruth v. Design Interiors, Inc., 324 Ark. 373, 921 S.W.2d 944 (service rules in derogation of common law must be strictly followed)
- Morgan v. Big Creek Farms of Hickory Flat, Inc., 2016 Ark. App. 121, 488 S.W.3d 535 (affidavit of diligent inquiry held sufficient)
- Scott v. Wolfe, 2011 Ark. App. 438, 384 S.W.3d 609 (construction of Rule 4(f)(1) and warning orders)
- XTO Energy, Inc. v. Thacker, 2015 Ark. App. 203, 467 S.W.3d 161 (conclusory affidavits insufficient to show diligent inquiry)
- Smith v. Edwards, 279 Ark. 79, 648 S.W.2d 482 (burden on plaintiff to show attempts to locate defendant)