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Thomas v. Robinson

Court of Appeals of Arkansas, Division IV

November 14, 2018

TRAVIS THOMAS APPELLANT
v.
PHYLLIS ROBINSON AND SYLVESTER ROBINSON APPELLEES

          APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35CV-16-610] HONORABLE ROBERT H. WYATT, JR., JUDGE

          Smith, 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, for appellees.

          BRANDON J. HARRISON, JUDGE

         Travis 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.

         On 21 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.

         The 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.

         In due 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 forward."

         After 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 the Robinsons.

         The 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 ...


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