Scott v. Wolfe
Annotate this Case
Download PDF
Cite as 2011 Ark. App. 438
ARKANSAS COURT OF APPEALS
DIVISION II
No. CA 10-1267
Opinion Delivered
June 15, 2011
KAREN SCOTT
APPELLANT
V.
APPEAL FROM THE HOT SPRING
COUNTY CIRCUIT COURT
[NO. CV-2000-36-2]
JIM PAUL WOLFE
HONORABLE PHILLIP H.
SHIRRON, JUDGE
APPELLEE
REVERSED AND DISMISSED
DOUG MARTIN, Judge
The Hot Spring County Circuit Court granted appellee Jim Paul Wolfe’s “Petition for
Scire Facias,” thus reviving a judgment by default entered on September 13, 2000, in which
appellant Karen Scott was ordered to pay $19,800 plus $1,000 in attorney’s fees. The trial
court denied Scott’s motion to set aside the default judgment and entered an “Order Reviving
or Extending Judgment” filed September 28, 2010, from which Scott appeals. We find merit
in Scott’s argument that Wolfe did not make a diligent inquiry as to Scott’s whereabouts
before attempting to obtain service by warning order pursuant to Arkansas Rule of Civil
Cite as 2011 Ark. App. 438
Procedure 4(f).1 Accordingly, the default judgment entered against Scott was void ab initio.
We reverse and dismiss.
Entry of Default Judgment in 2000
Wolfe is in the business of breeding goats and selling their offspring for profit. On or
about November 1, 1994, Wolfe placed an advertisement in the Arkansas Democrat-Gazette
seeking to purchase pure-bred registered goats. Scott responded to the advertisement and
verbally agreed to sell two Toggenburg goats and eight to ten Nubian goats for $100 each.
Scott assured Wolfe that all of the goats were registered and pregnant and that breeding
certificates would be furnished. On or about November 8, 1994, Wolfe drove to Scott’s
residence in Traskwood in Saline County, where he paid cash for and took possession of the
goats. Scott gave Wolfe a handwritten receipt indicating the amount paid and noting that
registration papers and breeding certificates would be provided. From 1995 through 1999,
Scott promised to provide the documentation for the goats but failed to do so.
On February 18, 2000, Wolfe filed a complaint in Hot Spring County Circuit Court,
seeking damages for the difference between the fair market value of the goats sold without
papers and the fair market value of the goats had they been sold with the proper
1
Where it appears by the affidavit of a party or his attorney that, after diligent inquiry,
the identity or whereabouts of a defendant remains unknown, service shall be by warning
order issued by the clerk and published weekly for two consecutive weeks in a newspaper
having general circulation in a county wherein the action is filed and by mailing a copy of the
complaint and warning order to such defendant at his last known address, if any, by any form
of mail with delivery restricted to the addressee or the agent of the addressee. Ark. R. Civ.
P. 4(f)(1) (2000).
2
Cite as 2011 Ark. App. 438
documentation. Wolfe alleged that he suffered a loss of income in excess of $5,000 because
he could not sell the goats he purchased from Scott as registered animals. Wolfe, who is from
Greenwood in Sebastian County, Arkansas, alleged that Scott was, at all times relevant to the
case, a citizen and resident of Malvern in Hot Spring County, Arkansas.
On May 26, 2000, Wolfe’s attorney filed an affidavit stating that, on February 23,
2000, he mailed an original, file-marked complaint and two summonses to Richard Colley,
a process-server in Malvern, for the purpose of procuring service on Scott. The affidavit states
simply, “Richard Colley was unable to locate and serve the Defendant, Karen Scott.” The
affidavit further provides that, on April 19, 2000, Wolfe’s attorney mailed a file-marked copy
of the summons and complaint by certified mail, return receipt requested, and restricted
delivery to Scott at her last known address of 2210 Traskwood, Malvern, Arkansas 72104.
Wolfe’s attorney averred that on April 24, 2000, the envelope was returned to him and
marked by the U.S. Postal Service as “Returned to Sender, No Such Number.” Pursuant to
Ark. R. Civ. P. 4(f)(1), Wolfe’s attorney requested that the Hot Spring County Circuit Clerk
issue a warning order to Scott and publish it for two consecutive weeks in a newspaper having
general circulation in Hot Spring County. Wolfe’s attorney also stated that, pursuant to Rule
4(f)(1), he was mailing a copy of the complaint and warning order to Scott at her “last known
address” with delivery restricted to Scott or her agent.
On June 14, 2000, Wolfe’s attorney filed an “Affidavit of Service of Process” and
attached a copy of the Certificate of Publication indicating that the warning order was
3
Cite as 2011 Ark. App. 438
published in the Malvern Daily Record on June 1, 2000, and June 8, 2000. Also attached to
the affidavit was a statement from the Malvern Daily Record and the law firm’s check made
out to the newspaper for $96.80.
On August 7, 2000, Wolfe moved for a default judgment, alleging that Scott had been
served pursuant to Rule 4(f)(1) and had failed to timely respond. Thereafter, on
September 13, 2000, a hearing was held, and a default judgment was granted on August 7,
2000. The trial court awarded Wolfe damages in the amount of $19,800, plus an attorney’s
fee in the amount of $1,000.
Petition to Revive Judgment in 2010
Wolfe filed a “Petition for Scire Facias” to revive the default judgment on February 4,
2010, alleging that the balance of the judgment remains wholly unsatisfied. The petition
correctly states that Scott’s last known address is 2210 Traskwood Road, Traskwood, Arkansas
72167.
On February 26, 2010, Scott responded to Wolfe’s petition and moved to set aside the
default judgment, alleging that she has lived at 2210 Traskwood Road, Traskwood, Arkansas
72167, since 1994. Scott cites a pre-Civil Procedure Rules case, contending that no personal
judgment can be rendered against a defendant who is constructively served. Scott argues that
constructive service through a warning order pursuant to Ark. R. Civ. P. 4(j) was not
intended to be used where a money judgment was sought and mistakenly received.
Alternatively, Scott argues that Wolfe did not make a diligent inquiry as to her whereabouts,
4
Cite as 2011 Ark. App. 438
as required by Rule 4(f). She points out that Wolfe obviously knew where her home was
located because he drove to her residence to purchase the goats. Scott states that there is no
evidence that Wolfe questioned why the certified mail came back undeliverable when it was
sent to the wrong, non-existing address and no evidence that Wolfe directed the processserver to her residence. Scott also argues that Wolfe did not file an affidavit with the court
stating that thirty days had elapsed since the first publication of the warning order or that
thirty days had passed since Wolfe mailed Scott a copy of the warning order and complaint.
Scott argues that thirty days had not passed, given that the affidavit was filed on June 14, 2000,
when the warning order was published on June 1 and 8 and the certified mail, addressed to
yet another incorrect address at Hot Spring County Road 66, Malvern, Arkansas, was
postmarked June 1, 2000. Scott argues that the trial court did not have personal jurisdiction
over her in entering the default judgment, which violates due process. Scott maintains that
the default judgment is void because attempted service was invalid and she had no notice of
the suit against her.
At a hearing held on September 1, 2010, the trial court ruled:
This Court is not about to set aside a Judgment that was entered ten years ago when
the defendant has known for many years that it was in existence. I believe I heard
some abstract company was interested in 2007. She’s selling a home or property and
can’t get rid of it because of a judgment. You know that then, you waited that many
more years to do anything. And the Court believes that sufficient compliance, I’ll call
it, there is with the requirement of the service because the publication was made. She
had more than 30 days to appear and defend this action, she was on notice of that, the
mere filing early had nothing to do—did not prejudice her rights in any way
whatsoever to appear and defend this case, when it should have been done. The
Petition for Scire Facias is granted. The Motion to Set Aside is denied. That’s the
Court’s order.
5
Cite as 2011 Ark. App. 438
Thereafter, on September 28, 2010, the trial court entered an order reviving the
judgment and providing that Scott owes $41,526.03 as of September 1, 2010, and that the
judgment is extended for another ten-year period, unless satisfied sooner. Scott timely
appealed from this ruling on October 1, 2010.
De Novo Review
On appeal, Scott makes the same arguments as set forth above in responding to Wolfe’s
“Petition for Scire Facias,” but Scott adds that she is not barred from challenging the default
judgment by laches or estoppel because those defenses do not apply to void judgments.
Arkansas Rule of Civil Procedure 55(c) provides that a default judgment can be set
aside 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. Ark. R. Civ. P. 55(c) (2010). Scott argues here that
the default judgment entered against her is void. We agree.
In cases involving an appeal of the grant or denial of a motion to set aside a default
judgment, our standard of review depends on the grounds upon which the appellant is
claiming the default judgment should be set aside. Nationwide Ins. Enter. v. Ibanez, 368 Ark.
432, 246 S.W.3d 883 (2007) (citing Nucor Corp. v. Kilman, 358 Ark. 107, 186 S.W.3d 720
(2004)). Ordinarily, this court applies an abuse-of-discretion standard; however, in cases
where the appellant claims that the default judgment is void, the matter is a question of law,
which we review de novo and give no deference to the circuit court’s ruling. Id.
6
Cite as 2011 Ark. App. 438
Rule 4(f)(1) of the Arkansas Rules of Civil Procedure provides that, if it appears by the
affidavit of a party seeking judgment or his attorney that, after diligent inquiry, the
whereabouts of a defendant remains unknown, service shall be by warning order issued by the
clerk. This rule permits constructive service by warning order only if the whereabouts of the
defendant is unknown “after diligent inquiry.” A mere recitation in an affidavit that a diligent
inquiry was made is not sufficient. See, e.g., Smith v. Edwards, 279 Ark. 79, 648 S.W.2d 482
(1983). The burden is on the moving party to demonstrate to the court that he actually
attempted to locate the defendant. Id. Wolfe obviously knew of Scott’s whereabouts, as he
alleged in his complaint that he traveled to Scott’s residence to retrieve the goats he purchased
in 1994. In fact, Scott was at the same residence in Traskwood–not Malvern–throughout the
course of these proceedings.
Under these circumstances, we agree with Scott that Wolfe did not make a diligent
inquiry into her whereabouts. While Wolfe asserted that “defendant did all she could to avoid
service,” thus forcing him to obtain service by warning order, there is no evidence that Scott
avoided service at her residence in Traskwood. A copy of Scott’s 2000 personal property
assessment is in the abstract, and it contains Scott’s correct address in Traskwood. The certified
mail was not returned “unclaimed”; rather, it was returned because there was “no such
number,” i.e., the residence was not in existence. Wolfe served Scott with the “Petition for
Scire Facias” at her correct address, but all of his attempts in 2000 were at different incorrect
addresses and thus improper. While Scott may have learned about a lien against her property
7
Cite as 2011 Ark. App. 438
in 2006 or 2007, that knowledge does not validate a void default judgment regardless of when
the judgment was entered.
Because Wolfe knew of Scott’s whereabouts, as he had been to her residence, Scott
was entitled to actual notice. Comment 12 to Rule 4(f) states that the rule requires service
resulting in actual notice in all cases where the identity or whereabouts of the defendant is
known. Wolfe failed to strictly comply with the applicable service requirements, and service
of valid process is necessary to give a court jurisdiction over a defendant. Nucor, supra.
Judgments by default rendered without valid service are judgments rendered without
jurisdiction and are therefore void. Grand Slam Stores, LLC v. L & P Builders, Inc., 92 Ark.
App. 210, 212 S.W.3d 6 (2005). Wolfe’s reliance on laches and estoppel is misplaced, as those
doctrines do not apply where a default judgment is, as here, void ab initio. See Raymond v.
Raymond, 343 Ark. 480, 36 S.W.3d 733 (2001); Lawson v. Edmondson, 302 Ark. 46, 786
S.W.2d 823 (1990). We do not address Scott’s remaining arguments because the jurisdictional
issue is dispositive. Wilson v. Beckett, 95 Ark. App. 300, 236 S.W.3d 527 (2006).
For the reasons cited herein, we reverse and dismiss.
R OBBINS and B ROWN, JJ., agree.
8
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.