                                Cite as 2016 Ark. App. 614

                ARKANSAS COURT OF APPEALS
                                      DIVISION III
                                      No. CV-16-482


BRITTNEY G. YOUNG AND CAREY                     Opinion Delivered   December 14, 2016
YOUNG
                   APPELLANTS                   APPEAL FROM THE PULASKI
                                                COUNTY CIRCUIT COURT, SIXTH
                                                DIVISION
V.                                              [NO. 60CV-14-1413]

                                                HONORABLE TIMOTHY DAVIS
                                                FOX, JUDGE
JANE WELCH AND LARRY WELCH
                    APPELLEES                   AFFIRMED



                          PHILLIP T. WHITEAKER, Judge

       This appeal involves a default judgment against appellants Brittney and Carey Young

that was obtained by appellees Jane and Larry Welch. The Youngs filed a motion to set aside

the default judgment, which the Pulaski County Circuit Dourt denied. The Youngs appeal,

raising several points. We affirm.

                                       I. Background

       The Welches wanted to build a home in North Little Rock, and they contracted with

the Youngs for the construction. The Welches subsequently sued the Youngs for breach of

contract, seeking damages of $58,143.1 The Welches attempted to serve the Youngs with the


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        The lawsuit also named Roy Treat as a defendant. Treat was served with the
complaint and answered it, but the Welches ultimately dismissed him from the suit. He is not
a party to this appeal.
                                 Cite as 2016 Ark. App. 614

summons and complaint. After repeatedly attempting personal service and being unable to

find a forwarding address, the Welches filed an affidavit for warning order. The Pulaski

County Circuit Clerk issued a warning order, which was published in the North Little Rock

Times. After the Youngs failed to respond to the warning order, the Welches filed a motion

for default judgment against the Youngs, which the circuit court granted. The order granting

default judgment also awarded the Welches the damages they sought, as well as attorney’s

fees and interest.

       After obtaining the default judgment, the Welches filed a writ of garnishment. In

response to this collection attempt, the Youngs filed a motion to set aside the default

judgment and motion to quash garnishments.2 In their motion to set aside the default

judgment, the Youngs alleged that the Welches failed to make a diligent inquiry into their

whereabouts prior to obtaining service by warning order, as is required by Arkansas Rule of

Civil Procedure 4(f)(1) (2015). The circuit court denied the motion, and the Youngs filed

a timely notice of appeal.

                                    II. Standard of Review

       Default judgments are governed by Rule 55 of the Arkansas Rules of Civil Procedure.

Rule 55(c) sets forth the circumstances pursuant to which a court may set aside a default

judgment:

               The court may, upon motion, set aside a default judgment previously entered
       for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2)


       2
        The circuit court denied the motion to quash garnishments. The Youngs have not
appealed that denial.

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       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. The party seeking to have
       the judgment set aside must demonstrate a meritorious defense to the action;
       however, if the judgment is void, no other defense to the action need be shown.

Ark. R. Civ. P. 55(c) (2015).

       On appeal, the Youngs argue that the circuit court erred in refusing to set aside the

default judgment because they were not properly served pursuant to Rule 4 of the Arkansas

Rules of Civil Procedure, making the default judgment void under Rule 55(c)(2). In cases

where the appellant claims that the judgment is void under Rule 55(c)(2), the appellate

courts will review a trial court’s denial of a motion to set aside a default judgment using a de

novo standard. Nucor Corp. v. Kilman, 358 Ark. 107, 118, 186 S.W.3d 720, 727 (2004).

                                        III. Discussion

       Arkansas law is long settled that valid service of process is necessary to give a court

jurisdiction over a defendant. Shotzman v. Berumen, 363 Ark. 215, 213 S.W.3d 13 (2005);

Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003);

Raymond v. Raymond, 343 Ark. 480, 36 S.W.3d 733 (2001). It is equally well settled that

statutory service requirements must be strictly construed and compliance with them must be

exact because they are in derogation of common-law rights. Shotzman, supra; Carruth v.

Design Interiors, Inc., 324 Ark. 373, 921 S.W.2d 944 (1996). The supreme court has held that

the same reasoning applies to service requirements imposed by court rules. Nucor, supra;

Carruth, supra. As a result, default judgments are void ab initio due to defective process




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regardless of whether the defendant had actual knowledge of the pending lawsuit. Nucor,

supra; Smith, supra.

       The Youngs advance numerous arguments in support of their contention that the

circuit court erred in refusing to set aside the default judgment. For example, they argue that

the notice of default judgment was not published in a newspaper having general circulation

in a county where the action was filed; that Rule 4(f)(2) requires the party seeking default

judgment to mail a copy of the complaint to the defendant at his or her last known address

by any form of mail with delivery restricted to addressee; that the Welches did not put in

their notice the specific wording of “default judgment” as required by Rule 4(f)(2); that the

Welches did not file any documents that indicated they attempted to mail the Youngs the

complaint by restricted delivery mail; that the answer filed by codefendant Roy Treat inured

to the Youngs’ benefit; and that a default judgment establishes only liability, not the extent

of damages, and the Welches did not request or receive a hearing on their damages.

       None of these arguments, however, was presented to the circuit court, and they are

therefore not preserved for this court’s review. Wise v. Harper, 2015 Ark. App. 702, 477

S.W.3d 565 (refusing to address arguments pertaining to the circuit court’s refusal to set aside

a default judgment where the arguments were being raised for the first time on appeal);

Morgan v. Century 21 Perry Real Estate, 78 Ark. App. 180, 79 S.W.3d 878 (2002) (same).

       The Youngs’ sole argument that is preserved for appeal is their claim that the Welches

failed to conduct a diligent inquiry into their whereabouts before serving them by warning

order. Service by warning order is governed by Arkansas Rule of Civil Procedure 4(f)(1).


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That rule 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. See Scott v. Wolfe, 2011 Ark. App. 438,

384 S.W.3d 609. A mere recitation in an affidavit that a diligent inquiry was made is not

sufficient. Morgan v. Big Creek Farms of Hickory Flat, Inc., 2016 Ark. App. 121, 488 S.W.3d

535. An affidavit will be deemed insufficient if it is conclusory or “contain[s] no indication

of what steps were taken as part of the required ‘diligent inquiry’ as to the whereabouts” of

a defendant. XTO Energy, Inc. v. Thacker, 2015 Ark. App. 203, at 9, 467 S.W.3d 161, 168.

The burden is on the moving party to demonstrate to the court that he or she actually

attempted to locate the defendant. Morgan, supra (citing Smith v. Edwards, 279 Ark. 79, 648

S.W.2d 482 (1983)).

       Given this framework, we examine the steps taken by the Welches to serve the

Youngs. The Welches employed Davis Process Service (“Davis”) to serve the complaint and

summons on the Youngs. According to the process server, the first attempt at service was

made at 311 Commentry Way in Little Rock. On April 21, 2014, process server Michael

Riegler reported to Davis that after many attempts, he had been unable to get anyone to

answer the door at this address, even though a neighbor told Riegler that the house was

occupied. On May 7, 2014, process server Jan Caple reported to Davis that she had likewise

been unable to get anyone to the door, despite many attempts. Caple further stated that she

was sure the house was occupied, because she had observed trash cans at the street and then

later back at the house. Both Riegler and Caple left multiple voice messages at the phone


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number provided to them, but neither ever received a call back from either defendant.

Additionally, neither Riegler nor Caple ever saw a vehicle present at the Commentry Way

address.

       Davis documented its further attempts at service as follows:

              On May 7, 2014 an FOI request for each defendant was forwarded to the
       72223 Post Office; they were returned May 15, 2014 marked “Not known at address
       given.”

              Research performed by this office netted 2 possible previous addresses for the
       2 defendants. On May 15, 2014 an FOI request for each defendant was forwarded to
       the 72190 Post Office for Post Office Box 95322. They were returned May 19, 2014
       marked “Delivered as addressed, street address of boxholder is 912 Valley Creek
       Point, North Little Rock, AR 72116.” On May 19, 2014 an FOI request for each
       defendant was forwarded to the 72116 Post Office for 912 Valley Creek Point
       address. They were returned marked “Moved, left no forwarding address.”

               Research performed by this office netted no other information that might aid
       in service of process.

Attached to the process server’s document were copies of the FOI requests that had been

sent to the postmasters.

       This court recently found a similarly detailed affidavit to be legally sufficient in

Morgan, supra. In that case, as in the instant one, the process servers provided affidavits setting

out the numerous steps they had taken to find and serve the defendants at multiple addresses

over the course of several months. We held that the plaintiff conducted a diligent inquiry

into the whereabouts of the defendants sufficient to satisfy the constructive-service provision

of Rule 4(f). Morgan, 2016 Ark. App. 121, at 6, 488 S.W.3d at 539. The affidavit in the

instant case is likewise sufficient to demonstrate that the Welches conducted a diligent

inquiry into the Youngs’ whereabouts. Accordingly, we conclude that the service by warning

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order was effectuated in compliance with Rule 4(f), and the subsequently entered default

judgment was not void for want of service.

       Affirmed.

       VIRDEN and GLOVER , JJ., agree.

       Tona M. DeMers, for appellants.

       Matthews, Sanders & Sayes, P.A., by: William Roy Sanders and Gail O. Matthews, for

appellees.




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