FROM THE MADISON COUNTY CIRCUIT COURT [NO. CV-2014-071]
HONORABLE DOUG MARTIN, JUDGE
Howerton Law Firm, by: Wendy R. Howerton, for appellant.
Rutledge, Att'y Gen., by: Karen Virginia Wallace,
Ass't Att'y Gen., for appellee.
James Byrd appeals the entry of a default judgment against
him and in favor of the State in this civil-forfeiture case
regarding a vehicle and currency. Appellant argues that (1)
the State failed to properly serve him with the forfeiture
complaint such that the trial court should have dismissed the
complaint; (2) there was no application for a default or
written notice provided to appellant as required by Ark. R.
Civ. P. 55, requiring reversal; and (3) the trial court erred
by not permitting appellant ten days to respond after the
motion to dismiss was denied before ruling summarily that
default would be entered. Although the trial court correctly
determined that proper service was effected, we hold that the
trial court erred in entering a default judgment in the
absence of a request for a default and in the absence of
compliance with Ark. R. Civ. P. 55. Because we reverse the
entry of default judgment, we need not address
appellant's third argument on appeal.
facts are as follows. Appellant James Byrd was driving a 2011
Mazda four-door hatchback automobile that was pulled over by
Madison County Sheriff's deputies on June 5, 2014. This
led to a search of the car and Byrd's person, which
revealed a quantity of marijuana, drug paraphernalia, and
$840 in currency. The State seized the money and the car.
Joseph J. Moore was also in the car, and the State seized $1,
812 from him.
August 11, 2014, the State filed an "In Rem Complaint
for Forfeiture of Seized Items" in Madison County
Circuit Court, listing as defendants "$840.00 in U.S.
Currency, 2011 Mazda VIN #JM1BL1K51B1378968, and James
Byrd." The case had docket number CV2014-71. The
complaint asked that the currency and vehicle be forfeited to
the State. The proceeding was initiated under Ark.
Code Ann. § 5-64-505(g)(1)(A) (Repl. 2016), which
requires the prosecuting attorney to file a complaint with
the circuit clerk of the county where the property was seized
and to serve "the complaint on all known owners and
interest holders of the seized property in accordance with
the Arkansas Rules of Civil Procedure." A summons was
issued to appellant. The proof of service filed with the
circuit clerk indicated service in the following manner:
"Defendant's counsel, Wendy Howerton, accepted
service by hand delivery on September 9, 2014, from counsel
for the State." The State's attorney was Deputy
Prosecuting Attorney for the Fourth Judicial District, Joel
October 9, 2014, attorney Howerton filed an answer to the in
rem complaint on behalf of appellant in CV2014-71, with the
caption containing appellant's name, the $840 in
currency, and the Mazda vehicle. The answer denied all
material allegations in the forfeiture complaint, and
responded to each of the paragraphs in the State's
complaint. The answer included the following paragraph:
11. Defendant states that the Complaint herein should be
dismissed as the State has failed to meet its requirements
under Ark. Code Ann. § 5-64-505 et seq., that the State
has failed to state a claim upon which relief can be granted
under Rule 12(b)(6), it should be dismissed for insufficiency
of service and service of process; that the search and
seizure of Defendant's person are unconstitutional, and
Defendant reserves the right to assert any and all defenses
which may become available or known upon further discovery,
and amend this Answer or file a counter-complaint should
further discovery warrant.
prayer clause asked that the complaint be dismissed and for
all other proper relief. Appellant provided a notarized
signature acknowledging the contents of the answer, which
acknowledgment was made part of the answer.
8, 2015, a bench trial was conducted. At the outset, the
trial judge agreed to hear preliminary motions.
attorney asserted that appellant was served with a proper
summons related to this money and this vehicle in CV2014-71,
but the accompanying complaint was different. Appellant's
attorney alleged that what had been delivered was a complaint
under a different docket number, CV2014-72, as to a different
defendant, Joseph J. Moore, and different currency, $1, 812.
Nonetheless, appellant's attorney stated that appellant
was aware of the correct complaint and was prepared to
address his defensive motions and even defend on the merits.
Given the failure to serve the proper complaint, appellant
argued that the forfeiture proceeding had to be dismissed for
failure to file the complaint within 120 days of the
property's seizure, as required by statute, purportedly
under the 12(b)(6) aspect of the motion to dismiss.
prosecuting attorney expressed confusion about which motion
he might be responding to, but in any event, he argued that
the summons and complaint were served by hand delivery to
appellant's defense attorney, as shown by the return of
service. He added that the answer appellant filed
corresponded to the proper docketed case number, the properly
captioned complaint, each paragraph of the complaint, and the
answer was acknowledged by appellant himself. The State stood
on its service. The State also argued that as to the proper
complaint that it served, appellant had not included in his
answer a statement describing the ownership of the Mazda as
required by the forfeiture statute such that appellant had no
standing to object to the forfeiture.
trial judge initially stated that service was proper,
reciting the proof of service and the fact that appellant
filed an answer to the correct complaint under the correct
docket number and caption. The trial judge also stated that
the State filed its complaint within 120 days of the seizure
as required by Ark. Code Ann. § 5-64-505(g)(3)(B),
regardless of whether service was proper, so the Rule
12(b)(6) motion was denied. After hearing further argument,
the trial court decided to proceed to make a record regarding
service and make a ruling on that issue. The judge recalled
that this was appellant's motion and that appellant had
listed the defenses of insufficiency of service and service
outset, appellant's attorney maintained that appellant
was served the complaint in CV2014-72 and that was the
complaint answered by appellant. Appellant's attorney
stated on the record, "just to save everyone trouble,
it's not how the items were served, Your Honor, that
we're disputing. . . .What matters is what was
served." Appellant testified in line with his