Arkansas Court of Appeals Sets Aside 8-Year Old Judgment Due to A Deficient Warning Order Affidavit
The Arkansas Court of Appeals recently took
the wood to a default judgment that was entered against a defendant solely on
the basis of constructive service by warning order. See Self v. Hustead, 2017 Ark. 339. In this case, our firm, Daily & Woods,
P.L.L.C. represented the successful appellant.
Setting the
Stage
All lawsuits begin with the filing of a
complaint. The Court does not acquire jurisdiction
over the defendant, however, until he is served with the summons. Service of process rules must be complied
with exactly and while there are several ways to serve a defendant in person,
none of those methods were relevant in Self. In that case, service was constructive, and “accomplished”
through the publication of a warning order.
Warning order service amounts to notice
by way of an ad in the newspaper that more or less says, “Hey…Pssst…You’ve been
sued.” Unless the defendant scans the
classified ads on a daily basis, he’ll never see it. In fact, I don’t know of a single case where
the defendant happened to be looking for a used car, or lawn tool, etc., only
to discover that he had been named a civil defendant. Nevertheless, it’s a valid means of serving a
defendant, but only as a last resort.
To obtain the warning order, the
plaintiff must file an affidavit, or otherwise prove, that “after diligent
inquiry, the identity or whereabouts of a defendant remains unknown.” Ark.
R. Civ. P. 4(f)(1). The warning order is usually issued on the same day, and then
it becomes published in the newspaper. If
no response is filed, the court will enter a default judgment. That’s the usual order of operations,
anyway.
Self
v. Hustead
In Self v. Hustead, the plaintiff was a home-owner landlord, and the defendant had
been a tenant in the plaintiffs’ home.
After the defendant moved out, the plaintiffs sued the defendant for
breach of the lease and damages.
Plaintiffs never actually served
the defendant with the complaint or summons.
Instead, the defendant attempted to effectuate service by warning order.
The affidavit used to obtain the warning
order read as follows:
Comes
now [Attorney for Plaintiffs], and upon his Oath states as follows:
1.
That I have made diligent inquiry and that it is my information and belief that
the [Defendant’s] last known address was 3203 McDonald Avenue, Springdale,
Washington County, Arkansas 72762.
2.
Personal service upon Defendant was unsuccessfully attempted by [a] licensed
process server at said address.
3.
That the Clerk of this Court should forthwith issue a Warning Order directing
the defendant to appear and show cause, if any, why the relief prayed for by
the Plaintiffs should not be granted.
(Names have
been redacted. It’s all public record, so if you’re curious, check the case
file.)
The warning order was issued based on
this apparent showing of a diligent inquiry to locate the defendant, and it was
published. After 30 days, with no additional
activity in the case file, the plaintiffs requested that the court enter a
default judgment. The court entered
judgment against the defendant in the amount of $27,442.89, plus costs and
attorney fees.
Nothing happened for another 8
years. Defendant eventually learned
about the sizeable default judgment rendered against him when he was served
with a show cause order in early 2016. In response, he moved to set aside the
default judgment, based on service being defective. The trial court denied his requests, so he
appealed.
The Appeal
On appeal, the Arkansas Court of Appeals
agreed with the defendant, reversed the trial court and set aside the default
judgment. Specifically, the Court of Appeals held that service was wholly defective
because the warning order was obtained based on a patently deficient
affidavit. The defendant never lived at
the address listed in the affidavit and the affidavit contained absolutely no
information that would support how the plaintiffs or their process server
determined that McDonald Street in Springdale, Arkansas was an address he ever
used.
Also, the record revealed that the plaintiffs’
had some means to contact the defendant, but they apparently didn’t try. Their real estate agent had defendant’s cell
phone number, and had actually communicated with the defendant during the time
leading up to the lawsuit. On these
facts, the Court of Appeals determined that the plaintiffs had not conducted a
diligent inquiry—a prerequisite to obtaining the warning order.
The Result
If the procedures used to obtain the
warning order are not followed exactly, then the warning order is defective,
and service is never accomplished. For
this reason, in Self v. Hustead, the default
judgment was set aside, and all proceedings related to the case were held to be
void. In other words, the original winner—the
Plaintiff, became the loser. Since the
default judgment was set aside as void, it is treated as if it never
happened.
To avoid this result, the attorney for
the plaintiff must always make a diligent attempt to locate the defendant, and
should document all attempts. Through a diligent search, he may even locate the
defendant, and be able to serve him with actual service of the complaint and
summons.
C. Michael Daily is an attorney with the long-established law firm of Daily & Woods, P.L.L.C. and is licensed to practice in Arkansas, Oklahoma, North Dakota and Wyoming. C. Michael Daily can be contacted by telephone at 479-242-3953, by email at mdaily@dailywoods.com, or by regular post at 58 South 6th Street, Fort Smith, Arkansas 72902.
C. Michael Daily accepts civil litigation, appeals, oil, gas, mineral, probate cases, and other matters in all cities in Arkansas, Oklahoma, North Dakota and Wyoming. You can follow C. Michael Daily via social network using any of the social network links in the right hand column of the page.
Disclaimer: This blog is for informational purposes, is certainly not to be considered legal advice and is absolutely not a substitute for any of the benefits that are associated with the attorney-client relationship.
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