Meeks v. Stevens, 89-183

• Decision Date: 26 February 1990
• Docket Number: No. 89-183,89-183
• Citation: 785 S.W.2d 18,301 Ark. 464
• Parties: Susan E. MEEKS, Appellant, v. Arthur STEVENS, Appellee.
• Court: Arkansas Supreme Court

Page 18

785 S.W.2d 18

301 Ark. 464

Susan E. MEEKS, Appellant, v. Arthur STEVENS, Appellee.

No. 89-183.

Supreme Court of Arkansas.

Feb. 26, 1990.

Mary B. Stallcup, Deputy Atty. Gen., Little Rock, for appellant.

John D. Van Kleef, Dardanelle, for appellee.

TURNER, Justice.

Appellant, Susan E. Meeks, challenges the validity of a default judgment obtained by appellee, Arthur Stevens, contending that service of process was never perfected. We agree.

Appellant was formerly employed as a social worker with the Arkansas Social Services Division of the Arkansas Department of Human Services. In August, 1988, she informed appellee and his wife of a Division investigation, directed by her, that revealed possible child abuse and neglect of the children of appellee's wife. Among other things, the report contained allegations of sexual abuse by appellee of his stepdaughter.

Appellee subsequently filed an action against the appellant, alleging that she had used her position, and had conspired with the natural father of the children, to destroy appellee's reputation. He sought damages for libel, slander, outrage, and invasion of privacy.

Appellee sought personal service on his complaint by placing the summons in the hands of a deputy sheriff, who was unable to locate appellant. Appellee then attempted service by certified mail, addressed to appellant's postal box, with delivery restricted to appellant. Notices directed to appellant were placed in the box on three separate occasions, but the certified mail was never claimed. There was no evidence that the notices were received by appellant, but they were not returned to the issuing office and, in addition, other mail addressed to appellant at that box was not returned and was apparently removed from the box.

Thereafter, the certified mail was returned to appellee's attorney marked by the Postal Service "unclaimed." Subsequently, appellee sent a summons, complaint, and letter to appellant, which warned that the case could proceed to default judgment. This letter was again sent by certified mail to appellant's postal box. Appellee also sent a copy of the motion for default judgment by certified mail on the same date.

The motion for default judgment was subsequently heard and a judgment was entered on appellee's complaint when appellant failed to appear. Thereafter, appellant moved to set aside the default judgment. It is from a denial of that motion that appellant brings this appeal.

Though Rule 55 of the Arkansas Rules of Civil Procedure provides for entry of a default judgment when a party fails to appear or otherwise to defend, Tapp v. Fowler, 291 Ark. 309, 724 S.W.2d 176 (1987), the courts have made it abundantly clear that defaults are not favored and this court has so stated. Allstate Insurance Co. v. Bourland, 296 Ark. 488, 758 S.W.2d 700 (1988). Because of its harsh and drastic nature which can result in the deprivation of substantial rights, a default judgment should only be granted when strictly authorized and when the party affected should clearly know he is subject to default if he does not act in a required manner. Winters v. Lewis, 260 Ark. 563, 542 S.W.2d 746 (1976).

Service of process or a waiver of that service is necessary in order to satisfy the due process requirements of the United States Constitution. Smith v. Edwards, 279 Ark. 79, 648 S.W.2d 482 (1983). Therefore, where sufficient notice of an action has not been given, and a default judgment has followed, a motion to set aside the judgment must be granted. Ideal Mutual Insurance Co. v. McMillian, 275 Ark. 418, 631 S.W.2d 274 (1982). Appellee's attempt at service of process and notice of impending default must then be measured against the extremely heavy burden imposed upon him.

Appellee first attempted personal service pursuant to Arkansas Rules of Civil Procedure, Rule 4(d)(1), but was unsuccessful. He next sent a copy of the summons and complaint by certified mail to appellant's postal box in compliance with Arkansas Rules of Civil Procedure, Rule 4(d)(8)(A), which provides in pertinent part:

Service of a summons and complaint upon a defendant ... may be made ... by any form of mail addressed to the person to be served with a return receipt requested and delivery restricted to the addressee or the agent of the addressee. Service pursuant to this paragraph shall not be the basis for the entry of a default or judgment by default unless the record contains a return receipt signed by the addressee or the agent of the addressee or a returned envelope, postal document or affidavit by a postal employee reciting or showing refusal of the process by the addressee. If delivery of mailed process is refused, the plaintiff or attorney making such service, promptly upon receipt of notice of such refusal, shall mail to the defendant by first class mail the copy of the summons and complaint and a notice that despite such refusal the case will proceed and the judgment by default may be rendered against him unless he appears to defend the suit.

Clearly, the rule requires a "refusal" of the mailed notice before default may be entered. The question dispositive of this appeal is whether...