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Byrd v. State

Court of Appeals of Arkansas, Division IV

October 19, 2016

JAMES BYRD APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE MADISON COUNTY CIRCUIT COURT [NO. CV-2014-071] HONORABLE DOUG MARTIN, JUDGE

          Howerton Law Firm, by: Wendy R. Howerton, for appellant.

          Leslie Rutledge, Att'y Gen., by: Karen Virginia Wallace, Ass't Att'y Gen., for appellee.

          CLIFF HOOFMAN, Judge

         Appellant 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.

         The 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.

         On 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.[1] 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 Cape.

         On 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.

         The 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.

         On June 8, 2015, a bench trial was conducted. At the outset, the trial judge agreed to hear preliminary motions.

         Appellant's 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.

         The 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.

         The 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 of process.

         At the 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 attorney's ...


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