Cogburn v. Marsh
| Decision Date | 01 March 2023 |
| Docket Number | CV-22-18 |
| Citation | 2023 Ark.App. 114 |
| Parties | MARK COGBURN AND KATELYN COGBURN APPELLANTS v. WILLIAM T. MARSH, JR. APPELLEE |
| Court | Arkansas Court of Appeals |
APPEAL FROM THE MONTGOMERY COUNTY CIRCUIT COURT [NO. 49CV-19-51] HONORABLE ANDY RINER, JUDGE
Robert S. Tschiemer, for appellants.
Legacy Law Group, by: Michael S. McCrary and Philip B. Montgomery for appellee.
Mark Cogburn and Katelyn Cogburn appeal the July 19, 2021 orders denying their motion to dismiss and granting the motion for default judgment filed by appellee William T. Marsh, Jr. The Cogburns raise three points on appeal: (1) they never waived lack of jurisdiction; (2) in the absence of service of process, the orders appealed from are void; and (3) they did not waive their objections by appearing at the hearings. The first and third points on appeal are essentially the same and the second rises and falls with the resolution of the first and third. Thus, the issue before us is whether the circuit court erred in determining that the Cogburns waived the affirmative defense of insufficiency of service of process such that the circuit court acquired personal jurisdiction over them. The Cogburns' points are well taken, and we reverse and dismiss.
This case originated as a property dispute between the Cogburns and Marsh. The Cogburns purchased real property adjacent to Marsh in May 2019. On October 23, 2019, Marsh filed a complaint against both Cogburns seeking an injunction, declaratory relief, a temporary restraining order (TRO), and to quiet title, claiming that he had acquired a portion of the Cogburns' real property through adverse possession or, alternatively, boundary line by acquiescence. On November 1, Ms. Cogburn was hand delivered "papers" at home by a process server; Mr. Cogburn was not at home. Thereafter, two returns of service were filed. As such, Marsh and the circuit court believed the Cogburns had been properly served. However, it was ultimately determined that the "papers" delivered to Ms Cogburn were a copy of the complaint, the TRO, and a hearing notice for November 5. No summonses were ever served on either Cogburn.
Three hearings were held in this matter. On November 5, 2019, a hearing was held on the petition to continue the TRO (November hearing). Both Cogburns were present without legal representation. Mr. Cogburn took the stand; Ms. Cogburn did not. On February 25, 2020, a hearing was held on the motion for default judgment that had been filed by Marsh on December 23, 2019, at which Mr. Cogburn was present without legal representation (February hearing). A May 21, 2021 hearing was held on the Cogburns' motion to dismiss, filed on March 5, 2020. Counsel for the Cogburns appeared, having entered an appearance on February 5. Marsh was represented by an attorney for the entirety of the proceedings before the circuit court.
On July 19, 2021, the circuit court entered two orders, one denying the Cogburns' motion to dismiss and one granting Marsh's motion for default judgment. In the order denying the motion to dismiss, the court concluded that it had acquired jurisdiction over the Cogburns at the November hearing because the Cogburns waived the issue of personal service by appearing and participating at the November hearing, asking the court to make a finding in their favor and failing to raise an objection to personal jurisdiction. The court granted Marsh's motion for default judgment because the Cogburns did not file a responsive pleading within thirty days of service of the complaint. This timely appeal followed.
Service of valid process is necessary to give a court jurisdiction over a defendant. Patsy Simmons Ltd. P'ship v. Finch, 2010 Ark. 451, 370 S.W.3d 257. Our service rules place an extremely heavy burden on the plaintiff to demonstrate that compliance with our rules has been had. Wine v. Chandler, 2020 Ark.App. 412, at 10, 607 S.W.3d 522, 528. The guiding principle of Arkansas Rule of Civil Procedure 4 and the purpose of a summons is to ensure due process by giving the defendant adequate notice of the suit and an opportunity to respond before a judgment is entered. Ligon v. Bloodman, 2021 Ark. 124, at 8; see also, Malloy v. Smith, 2017 Ark.App. 288, at 9, 522 S.W.3d 819, 825. Actual knowledge of a proceeding does not validate defective process. Trusclair v. McGowan Working Partners, 2009 Ark. 203, at 3-4, 306 S.W.3d 428, 430.
Where no answer has been filed, a summons must comply exactly and not substantially with the requirements of Rule 4(b).[1] Gatson v. Billings, 2011 Ark. 125; Ark. R. Civ. P. 4(k) (2022). The strict-compliance standard grows out of default situations, as getting a default judgment set aside in Arkansas remains notoriously difficult. Ligon, 2021 Ark. 124, at 8. The bright-line standard of strict compliance permits certainty in the law. Trusclair, 2009 Ark. 203, at 3-4, 306 S.W.3d at 430.
The form of summons adopted by the supreme court provides in relevant part:
Service defects may be waived. T.S.B. v. Robinson, 2019 Ark.App. 359, at 2, 586 S.W.3d 650, 653. The defense of personal jurisdiction may be also waived. Affordable Bail Bonds, Inc. v. State, 2015 Ark.App. 44, at 4. In a number of contexts, our courts have defined waiver as the voluntary abandonment or surrender by a capable person of a right known by him to exist, with the intent that he shall forever be deprived of its benefits, and it may occur when one, with full knowledge of the material facts, does something that is inconsistent with the known right or his intention to rely upon it. Travelers Cas. & Sur. Co. of Am. v. Cummins Mid-South, LLC, 2015 Ark.App. 229, at 6, 460 S.W.3d 308, 313-14. Whether a waiver occurred is a question of intent, which is usually a question of fact. Id. at 7, 460 S.W.3d at 314.
A party may waive a service challenge by actively participating in an action without objecting to the alleged insufficiency of service. Dixon v. Dixon, 2022 Ark.App. 439, at 9, 655 S.W.3d 520, 525. A determining factor in deciding whether a defendant has waived his rights and entered an appearance is whether the defendant seeks affirmative relief. Affordable Bail Bonds, Inc., supra. A request for affirmative relief that waives a challenge to sufficiency of process is something more than a defensive action that is inconsistent with a defendant's assertion that the circuit court lacked personal jurisdiction over him. Johnson v. Schumacher Grp. of Ark., Inc., 2019 Ark.App. 545, at 11-12, 589 S.W.3d 470, 477. The most obvious examples are counterclaims, cross-claims, and third-party claims in which a defendant invokes the jurisdiction of the court and thereby submits to it. Id. at 12, 589 S.W.3d at 477. We have also suggested that a motion for a stay of a final divorce hearing or a motion for additional time to locate a fugitive for a bond-forfeiture hearing demonstrate the sort of affirmative relief that may waive personal jurisdiction. Id. When service is not made in a manner provided for in Rule 4, the service and the judgment entered thereon are void ab initio. Dobbs v. Discover Bank, 2012 Ark.App. 678, at 12, 425 S.W.3d 50, 57.
We review a circuit court's factual conclusions regarding service of process under a clearly erroneous standard. Wine, 2020 Ark.App. 412, at 9, 607 S.W.3d at 528. In cases where the appellant claims that the circuit court erred in denying a motion to dismiss based on alleged errors in the process of service, our standard of review is whether the circuit court abused its discretion in denying the motion to dismiss. Dobbs, supra. In cases in which the appellant claims that the default judgment is void, our review is de novo, and we give no deference to the circuit court's ruling. Lockard & Williams Ins. Servs., Inc. v. Waldrip, 2020 Ark.App. 274, at 5, 600 S.W.3d 662, 665.
On appeal, the Cogburns argue that they did not waive their affirmative defenses, and the circuit court never acquired personal jurisdiction over them. Marsh responds that by attending the November and February hearings, failing to object to personal jurisdiction at either hearing, and requesting affirmative relief at the hearings, the Cogburns waived service of process and submitted to the court's jurisdiction.
The circuit court concluded that it acquired personal jurisdiction over the Cogburns at the November hearing. The Cogburns contend that their attendance at the November hearing could not have waived their affirmative defenses because, even assuming proper service occurred on November 1 there was still ample time remaining for them to file a responsive pleading under our rules of civil procedure. We agree. The circuit court's conclusion does not comport with the pleading requirements set out by our rules of civil procedure. The Cogburns are entitled to thirty days-not four days-to respond to a lawsuit and assert affirmative defenses, either within a responsive pleading or a motion. Ark. R. Civ. P. 12. Marsh sought a TRO and injunctive relief, which required that the matter be set for a hearing at the earliest possible time under ...
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