Rose v. Harbor E., Inc.

• Decision Date: 05 December 2013
• Docket Number: No. CV–13–327.,CV–13–327.
• Citation: 2013 Ark. 496,430 S.W.3d 773
• Parties: Steve ROSE, Appellant v. HARBOR EAST, INC.; Harbor East Property Owners Association; Recreational Management, Inc.; Iberia Bank, Successor in Interest to Pulaski Bank and Trust; and Unknown Tenants, Appellees.
• Court: Arkansas Supreme Court

2013 Ark. 496
430 S.W.3d 773

Steve ROSE, Appellant
v.
HARBOR EAST, INC.; Harbor East Property Owners Association; Recreational Management, Inc.; Iberia Bank, Successor in Interest to Pulaski Bank and Trust; and Unknown Tenants, Appellees.

No. CV–13–327.

Supreme Court of Arkansas.

Dec. 5, 2013.

[430 S.W.3d 774]

Hosto & Buchan, PLLC, by: Sammie P. Strange, Jr., and Kimberly Eden, for appellant.

William L. Owen, P.A., Little Rock, by: William L. Owen, for appellees.

PAUL E. DANIELSON, Justice.

Appellant Steve Rose appeals from the circuit court's order granting summary judgment to separate appellees Harbor East Property Owners Association (“the POA”) and Recreational Management, Inc. (“Recreational”), and dismissing Rose's complaint for foreclosure with prejudice. On appeal, Rose asserts (1) that the POA and Recreational were estopped from collaterally attacking Rose's order of revivor because it was not void; (2) that the requirements of Arkansas Code Annotated § 16–65–501 (Repl.2005), pertaining to writs of scire facias, were satisfied; (3) that the service requirements of Arkansas Rule of Civil Procedure 4 have no application to the requirements set forth in the

[430 S.W.3d 775]

statute; and (4) that equity demands his judgment be revived. We affirm the circuit court's order.

On August 4, 2010, Rose filed a complaint in foreclosure against the POA, Recreational, and other separate defendants.¹ The complaint alleged that, on April 21, 1989, in the Montgomery County Chancery Court, Case Number 89–26, Rose and Harbor East, Inc., had entered into a consent judgment, which awarded Rose $176,000, plus interest at eleven and one-half percent, commencing May 1, 1989.² Rose stated in his foreclosure complaint that he had filed a motion to revive the 1989 judgment on March 18, 1999, and that an order reviving the judgment was entered on June 27, 2001.³ He further asserted that on February 25, 2009, he filed a subsequent motion to revive the judgment and that an order reviving the judgment was entered on March 11, 2009.⁴ Rose maintained that the judgment had not been satisfied and prayed that he be granted judgment in rem, that the judgment lien be foreclosed, that a sale effectuating the foreclosure be declared, and for costs and attorney's fees. An amended complaint was filed on May 13, 2011.

On June 26, 2012, the POA filed a motion for summary judgment.⁵ In it, the POA asserted that, because no writ of scire facias had been issued prior to the 2009 order of revivor, Rose's judgment was not revived in accord with section 16–65–501. Consequently, the POA contended, the 2009 order of revivor was void ab initio for lack of jurisdiction. Rose responded that the statute in no way required that a writ of scire facias be issued and that he had properly complied with the statute by filing his petition for writ before his lien expired. He further countered that Arkansas courts had not previously held that personal service, as required for service of a summons under Ark. R. Civ. P. 4, was required in the service of a scire facias. For these reasons, he asserted that his service was proper and, therefore, the court's 2009 order of revivor was valid.

A hearing was held on the motion on September 21, 2012, at which the circuit court heard the arguments of the POA, Recreational, and Rose. On October 5, 2012, the circuit court filed its letter opinion in the matter, wherein it found that the summary-judgment motion “must be granted” and reasoned, in pertinent part, as follows:

The basis for the decision is that the order of revivor of March 17, 2009 should not have been entered. First, A.C.A. § 16–65–501 mandates that a writ of scire facias be served on the defendant or other specified parties. The record in E–89–26 does not reflect that this was done. A petition was filed but the statute requires more. The purpose of the writ is to put interested parties on notice and to advise them to “show cause” why the judgment should not be revived. (An alternate method under A.C.A. § 16–65–501 is to permit service by publication.) Since no writ

[430 S.W.3d 776]

was issued (only a petition filed), the order of revivor was improperly entered.

Second, although there is no set time within which a writ of scire facias must be served, an order entered prior to any proof of service (even if the writ was issued) is also improper. This court apparently failed to check the file for proof of service before signing the order, violating a normal practice of the court.[ ⁶]

An order memorializing the circuit court's decision was filed on December 18, 2012, and Rose filed a timely motion to reconsider on December 20 and a timely notice of appeal on January 23, 2013. Rose now appeals the circuit court's order granting summary judgment.

On appeal, Rose argues that, because a revivor action is not a new action, but the continuation of an old one, the court was not without jurisdiction when it issued the 2009 order of revivor. For this reason, he claims, the order was not void and could not be the subject of a collateral attack. Even assuming arguendo that the 2009 order of revivor was subject to collateral attack, Rose asserts that the order was valid in light of the fact that he complied with the requirements of the apposite statute, Ark.Code Ann. § 16–65–501. Specifically, he claims, he timely filed his petition for writ of scire facias in 2009 and he served the petition, thereby giving the judgment debtor notice of his intent to revive the judgment. Rose contends that the statute does not differentiate between a petition for writ of scire facias and a writ of scire facias; thus, compliance with the statute was had when he timely filed his petition. He further maintains that the statute does not require that proof of service be filed and that Ark. R. Civ. P. 4's requirements are inapplicable. Finally, he urges, should this court find that the 2009 order of revivor was subject to collateral attack and that he failed to properly comply with the requirements of the statute, he should be given the opportunity to correct any deficiencies as equity demands that such an opportunity be provided.

The POA and Recreational similarly counter Rose's contentions. They initially argue that, because the circuit court did not affirmatively and expressly rule on Rose's collateral-attack argument, the issue is not preserved for appeal. Alternatively, they contend that, because no writ of scire facias was issued in 2009, Rose failed to strictly adhere to the method of obtaining the court's jurisdiction as set forth in the statute. They further contend that their attempt to have the 2009 order of revivor declared void is a direct attack and not a collateral one. They maintain that Rose's filing of his petition for the writ did not satisfy the statute's requirement that a writ be issued by the clerk prior to the order of revivor being entered, and they aver that this court is not able to provide Rose with any equitable relief, even if it was warranted.

Our law is well settled that summary judgment is to be granted by a circuit court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. See City of Malvern v. Jenkins, 2013 Ark. 24, 425 S.W.3d 711. Normally, we determine if summary judgment is proper based on whether evidentiary items presented by the moving party leave a material fact unanswered, viewing all evidence in favor of the nonmoving party. See Massey v. Fulks, 2011 Ark. 4, 376 S.W.3d 389. Here,

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however, the facts are not in dispute, and the circuit court decided the case purely as a matter of statutory interpretation.

The question of the correct application and interpretation of an Arkansas statute is a question of law, which this court decides de novo. See McLemore v. Weiss, 2013 Ark. 161, 427 S.W.3d 56. We...