FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35CV-16-610]
HONORABLE ROBERT H. WYATT, JR., JUDGE
Williams & Meeks, L.L.P., by: Karen J. Hughes; and Julia
Busfield, P.A., by: Julie L. Busfield, for appellant.
Bridges, Young, Matthews & Drake PLC, by: John P. Talbot,
BRANDON J. HARRISON, JUDGE
Thomas asks this court to conclude that the circuit court
erred when it entered a default judgment against him because
the court never acquired jurisdiction over the
personal-injury complaint that Phyllis and Sylvester Robinson
filed against him. The jurisdiction question itself turns on
whether the Robinsons satisfied the service-by-warning-order
process prescribed by Arkansas Rule of Civil Procedure
4(f)(1) (2017). If they did not satisfy the rule, then the
court never acquired jurisdiction over Thomas. If the court
did not acquire jurisdiction, then it could not have entered
a valid default judgment against him.
September 2016, the Robinsons filed a complaint against
Jaylan Haskin and Travis Thomas. (Jaylan Haskin was dismissed
from the case and is not a party to this appeal.) A summons
was prepared that same day. In January 2017, the Robinsons
moved for more time to serve legal process and explained that
the summons had been "diligently provided to a process
server who has diligently attempted to obtain service but
cannot locate that Defendant." They asked for an
additional 120 days to serve Thomas, which the court granted.
On January 25, the Robinsons' counsel filed an affidavit
for warning order that stated:
1. I am attorney for the Plaintiff and am licensed to
practice law in the State of Arkansas.
2. Plaintiffs engaged the services of a process server to
obtain service on Defendant. The professional process server
attempted service on numerous occasions but has been unable
to locate the Defendant. See attached Exhibit A, non-est
return of service.
3. After a diligent inquiry, the whereabouts of the
Defendant, Travis Thomas, remain unknown.
4. Therefore, a Warning Order should be issued for this
Defendant and duly published.
record reflects, and the parties do not dispute, that no
exhibit was filed with the affidavit although paragraph 2
indicated that an exhibit was attached to the affidavit.
course the clerk issued a warning order. Thereafter, the
Robinsons filed a second affidavit that recited (1) the
warning order had been published in the time and manner
required by law, and (2) a restricted-delivery mailing of the
summons, complaint, and warning order to Thomas's
last-known address had been "returned to sender"
marked as "attempted-not known" and "unable to
Thomas did not answer the complaint within thirty days of the
warning order's first publication, the Robinsons moved
for a default judgment against Thomas and asked the circuit
court to find Thomas liable for the reasons alleged in the
complaint. The court entered a default judgment. Thomas
answered the Robinsons' complaint (in early October 2017)
and denied that he acted negligently or caused any harm to
Robinsons moved to strike Thomas's answer as untimely.
Thomas then moved to set aside the default judgment, citing
insufficient service of process. He specifically argued that
the Robinsons did not make the obligatory diligent inquiry
into his whereabouts as Ark. R. Civ. P. 4(f) requires. He
pointed out that the affidavit failed to provide details of
the attempted service effort, including the address or
addresses at which service was attempted; nor did the
affidavit explain any further attempts to locate Thomas. The
Robinsons stood on the affidavit but attached to their
response the return of service in which the process server
stated, "Non-Est unable to locate defendant. Last ...