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Self v. Hustead

Court of Appeals of Arkansas, Division II

May 24, 2017

JERRY MICHAEL SELF APPELLANT
v.
STEPHEN C. HUSTEAD AND RUTH L. HUSTEAD APPELLEES

         APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72CV-08-3022] HONORABLE DOUG MARTIN, JUDGE

          Daily & Woods, P.L.L.C., by: C. Michael Daly, for appellant.

          Matthews, Campbell, Rhoads, McClure & Thompson, P.A., by: Sarah L. Waddoups and Ed McClure, for appellees.

          LARRY D. VAUGHT, Judge

         On April 1, 2009, the Washington County Circuit Court entered a default judgment against Jerry Michael Self in a breach-of-contract case brought by Stephen and Ruth Hustead ("the Husteads"). In 2016, Self moved to set aside the default judgment, and the circuit court denied his motion. On appeal, Self contends that the trial court erred in denying the motion, arguing that the default judgment was void due to defective constructive service, which had been effectuated by a warning order. After conducting a de novo review, we agree and reverse and remand the circuit court's order denying Self's motion to set aside the default judgment.

         In August 2007, the Husteads and Self entered into a one-year agreement, whereby Self agreed to pay monthly rent to lease the Husteads' house in Huntsville, Arkansas. In February 2008, Self moved out of the Husteads' house. On August 14, 2008, the Husteads filed a complaint against Self seeking damages for breach of the lease.[1] In December 2008, the Husteads requested and were granted an extension of time for service of process. In January 2009, the Husteads' attorney filed an affidavit for warning order that stated:

Comes now J. David Zurborg, 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 Jerry Michael Self's last known address was 3203 McDonald Avenue, Springdale, Washington County, Arkansas 72762.
2. Personal service upon Defendant was unsuccessfully attempted by Carolyn Williamson, 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.

         A warning order was issued by the court on January 2, 2009, and published in the newspaper thereafter. On April 1, 2009, the circuit court issued an order for default judgment against Self in the amount of $27, 442.89, plus costs and attorney's fees.

         In June 2016, the Husteads petitioned the court for a contempt citation and an order to appear based upon Self's failure "to obey" the order of default judgment. The circuit court entered an order to appear and show cause on June 27, 2016, and set the matter for a hearing on July 28, 2016.

         On July 28, 2016, prior to the show-cause hearing, Self filed a motion to set aside the default judgment. Among other reasons not at issue on appeal, Self argued that the default judgment was void pursuant to Arkansas Rule of Civil Procedure 55(c)(2)[2] because it was "unclear that service by warning order was appropriate under the circumstances then present." Self later argued that he had no knowledge of the Husteads' lawsuit, the default judgment, or the show-cause hearing until July 21, 2016. Self filed a renewed motion to set aside the default judgment on August 19, 2016, and attached his affidavit that stated that he had advised the Husteads that he was vacating their home in February 2008; that since that time he had been living in Rogers, Arkansas, although he had worked in Van Buren and Fayetteville; that he had never lived on a street named "McDonald" in his entire life; and that the Husteads' real-estate agent called and talked to him on his cell phone shortly after he left the Husteads' home.

         On August 26, 2016, Self filed a second renewed motion to dismiss, arguing that the Husteads' affidavit for warning order failed to satisfy Arkansas Rule of Civil Procedure 4(f)(1). He submitted a second affidavit, stating that from the time he left the Husteads' home in 2008 until 2012, he had lived at 2614 Everest Avenue, Rogers, AR; from 2012 to 2013, he had lived at #68B Wellington Circle, Rogers, AR; and from 2013 to the present, he lived at 4103 W. Seneca Road, Rogers, AR. He reiterated that neither he nor any of his family members had lived on a street named "McDonald." He stated that after he had moved out of the Husteads' home, he had worked as a general manager at an ...


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