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Young v. Welch

Court of Appeals of Arkansas, Division III

December 14, 2016

BRITTNEY G. YOUNG AND CAREY YOUNG APPELLANTS
v.
JANE WELCH AND LARRY WELCH APPELLEES

         APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION [NO. 60CV-14-1413] HONORABLE TIMOTHY DAVIS FOX, JUDGE

         AFFIRMED

          Tona M. DeMers, for appellants.

          Matthews, Sanders & Sayes, P.A., by: William Roy Sanders and Gail O. Matthews, for appellees.

          PHILLIP T. WHITEAKER, Judge

         This appeal involves a default judgment against appellants Brittney and Carey Young that was obtained by appellees Jane and Larry Welch. The Youngs filed a motion to set aside the default judgment, which the Pulaski County Circuit Dourt denied. The Youngs appeal, raising several points. We affirm.

         I. Background

         The Welches wanted to build a home in North Little Rock, and they contracted with the Youngs for the construction. The Welches subsequently sued the Youngs for breach of contract, seeking damages of $58, 143.[1] The Welches attempted to serve the Youngs with the summons and complaint. After repeatedly attempting personal service and being unable to find a forwarding address, the Welches filed an affidavit for warning order. The Pulaski County Circuit Clerk issued a warning order, which was published in the North Little Rock Times. After the Youngs failed to respond to the warning order, the Welches filed a motion for default judgment against the Youngs, which the circuit court granted. The order granting default judgment also awarded the Welches the damages they sought, as well as attorney's fees and interest.

         After obtaining the default judgment, the Welches filed a writ of garnishment. In response to this collection attempt, the Youngs filed a motion to set aside the default judgment and motion to quash garnishments.[2] In their motion to set aside the default judgment, the Youngs alleged that the Welches failed to make a diligent inquiry into their whereabouts prior to obtaining service by warning order, as is required by Arkansas Rule of Civil Procedure 4(f)(1) (2015). The circuit court denied the motion, and the Youngs filed a timely notice of appeal.

         II. Standard of Review

         Default judgments are governed by Rule 55 of the Arkansas Rules of Civil Procedure. Rule 55(c) sets forth the circumstances pursuant to which a court may set aside a default judgment:

The court may, upon motion, set aside a default judgment previously entered for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) the judgment is void; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; or (4) any other reason justifying relief from the operation of the judgment. The party seeking to have the judgment set aside must demonstrate a meritorious defense to the action; however, if the judgment is void, no other defense to the action need be shown.

Ark. R. Civ. P. 55(c) (2015).

         On appeal, the Youngs argue that the circuit court erred in refusing to set aside the default judgment because they were not properly served pursuant to Rule 4 of the Arkansas Rules of Civil Procedure, making the default judgment void under Rule 55(c)(2). In cases where the appellant claims that the judgment is void under Rule 55(c)(2), the appellate courts will review a trial court's denial of a motion to set ...


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