Mona Lee Maradeo v. Wayne Farwell and William A. Stidham and Peggy Stidham
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NOT DESIGNATED FOR PUBLICATION
ARKANSAS COURT OF APPEALS
DIVISION III
No. CA08-250
MONA LEE MARADEO
Opinion Delivered
September 17, 2008
APPELLANT
APPEAL FROM THE CARROLL
COUNTY CIRCUIT COURT,
[NO. CV 2006-116]
V.
WAYNE FARWELL and WILLIAM A.
STIDHAM AND PEGGY STIDHAM,
APPELLEES
HONORABLE ALAN D. EPLEY,
JUDGE
REVERSED AND REMANDED
JOSEPHINE LINKER HART, Judge
In this one-brief case, Mona Lee Maradeo appeals from an order of the Carroll
County Circuit Court quieting title in the appellees, Wayne Farwell and William A. and
Peggy Stidham. She argues that the trial court committed clear error by (1) failing to
require compliance with the provisions of Arkansas Code Annotated sections 18-60-602
and 18-60-603(d) (Repl. 2003), which require the court clerk to send notice to the owner
of the property; (2) failing to recognize her as a party to the action under the provisions
of Arkansas Code Annotated section 26-38-204; (3) failing to require the appellees to
comply with the provisions of Rule 4 of the Arkansas Rules of Civil Procedure; and (4)
ruling that her answer was not timely filed.
We reverse and remand for further
proceedings consistent with this opinion.
Evelyn McCoy was the title holder of 160 acres of property in Carroll County for
which taxes were not paid in the years 1996-2000. On September 24, 2001, appellees
acquired the property in a tax sale.
On November 14, 2006, appellees petitioned to
confirm title, designating appellant as one of the named defendants. On December 20,
2006, an affidavit of publication was filed.
On January 17, 2007, appellees sent to
appellant’ s residence in Illinois a copy of the petition by restricted-delivery certified mail.
That copy was returned by the post office, marked “ refused. 1” On February 3, 2007,
appellees then sent by regular first-class mail another copy of the petition, which appellant
timely answered on February 27, 2007.
Meanwhile, the trial court entered a decree quieting title in the property, on
February 16, 2007. Appellees moved to dismiss appellant’ s answer on March 8, 2007.
They asserted that the order confirming title had been entered and that appellant’ s answer
was not timely. After a hearing at which the trial court determined that the motion to
dismiss was actually a motion to strike appellant’ s answer, the trial court found in favor
of the appellees. It found that it had entered its order on February 16, 2007, and the
appellant had not petitioned to set aside the decree within ninety days as required by
Arkansas Rule of Civil Procedure 60. Appellant now appeals that order.
Although appellant states her argument in four points, we believe that it boils down
to a single question: Did the trial court err when it struck appellant’ s answer in light of
1
Appellant submitted to the trial court an affidavit from the Lansing, Illinois postmaster
that stated that the post office erred in returning the certified restricted-delivery mailing.
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CA08-250
the notice requirements imposed by Arkansas Rule of Civil Procedure 4 and the United
States Supreme Court’ s decision in Jones v. Flowers, 547 U. S. 220 (2006)? We hold that
the trial court did err and reverse and remand for further proceedings consistent with this
opinion.
Due process requires that notice be “ reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford them
an opportunity to present their objections. ” Flowers, 547 U. S. at 226. While Rule 4(e)
authorizes service of out-of-state defendants by mail, it expressly requires that the service
comport with due process in that the service be “ reasonably calculated to give actual
notice. ” However, we agree with appellant that this requirement was not met in this case.
When service by mail is attempted in accordance with the provisions of Rule 4(d)(8)(A)(I),
and the summons and complaint is refused, the material must then be sent by regular first
class mail, postage prepaid, along with a notice that stated: “ despite such refusal the case
will proceed and that judgment by default may be rendered against him unless he appears
to defend the suit. ” Ark. R. Civ. P. 4(d)(8)(A)(ii). It was only upon receipt of the firstclass mail that appellant was properly served, at which time, as a non-resident defendant,
she had thirty days to answer. See Ark. R. Civ. P. 12(a). Accordingly, the trial court’ s
entry of the decree was premature.
We finally note that service by publication was not sufficient in this case because
the “ diligent inquiry” as to the whereabouts of appellant that was required by Arkansas
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CA08-250
Civil Procedure Rule 4(f) did, in fact, yield a good address for appellant. Where essential
statutory provisions governing service by publication are not strictly complied with as to
non-resident defendants, all proceedings as to them are void. Jackson v. Jackson, 81 Ark.
App. 249, 100 S. W. 3d 92 (2003).
Reversed and remanded.
H UNT , J. , agrees;
G RIFFEN , J. , concurs without opinion.
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CA08-250
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