Horne v. Cuthbert

Cite as 2015 Ark. App. 592

ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-15-44

Opinion Delivered October 21, 2015

APPEAL FROM THE SEBASTIAN
MARGARET SUZANNE HORNE COUNTY CIRCUIT COURT,
APPELLANT FORT SMITH DISTRICT
[NO. CV-2013-143]
V.
HONORABLE J. MICHAEL
FITZHUGH, JUDGE
EUNICE ERNESTINE CUTHBERT
APPELLEE REVERSED AND DISMISSED

LARRY D. VAUGHT, Judge

The Sebastian County Circuit Court ordered foreclosure of a judgment lien

based on a judgment that Eunice Cuthbert obtained against her former husband, John

Horne, in 1978 and periodically revived. Horne’s widow, Margaret Horne, brings

this appeal, arguing, among other points, that certain orders reviving the judgment

were void for lack of proper service. We agree, and reverse and dismiss.

Cuthbert and John Horne were divorced in 1970. Horne was ordered to pay

both alimony and child support. He married Margaret Horne in 1978. In October

1
Cite as 2015 Ark. App. 592

1978, Cuthbert obtained a judgment against her ex-husband for unpaid child support

and alimony of approximately $15,300. 1

On October 6, 1981, Cuthbert filed a motion for revivor of judgment. A writ

of scire facias was issued, but was returned unserved. On January 15, 1982, another

writ of scire facias was issued and served on January 20, 1982. An order of revivor of

judgment was entered in favor of Cuthbert on March 2, 1982. The order stated that

Cuthbert’s judgment lien related back to issuance of the writ of scire facias, and was

extended for a period of three years, until March 2, 1985. 2

Cuthbert filed a motion for revivor on April 25, 1985, seeking to again extend

her judgment lien. According to the divorce court’s docket sheet, the motion and

writ were not served upon John Horne until May 7, 1985. An order of revivor of

judgment lien was entered on April 29, 1985.

On August 31, 1988, Cuthbert filed another motion to revive judgment lien

asking, in part, that the judgment lien be revived for “another period of 10 years.”

1
The judgment was broken down into $9,100 for unpaid alimony and $6,190
in unpaid child support.
2
At the time Cuthbert obtained the 1978 judgment, what is now Ark. Code
Ann. § 16-65-117(d)(1) (Supp. 2013) provided that a judgment lien would expire
after three years and may be revived. In 1985, the General Assembly adopted Act
228, which was effective June 28, 1985. The Act provided that the lien would extend
for a period of ten years and may be revived. The Act also amended what is now Ark.
Code Ann. § 16-65-501(f) (Supp. 2013) for a corresponding period of ten years.
2
Cite as 2015 Ark. App. 592

The writ of scire facias was issued and served on John Horne on September 1, 1988.

An order of revivor of judgment lien was entered on September 6, 1988.

Cuthbert sought another writ of scire facias on July 23, 1998. The writ issued

the same day, but was not served until August 19, 1998. An order of revivor of

judgment lien had been entered on July 23, 1998.

On June 27, 2008, Cuthbert filed another motion to revive judgment lien and

caused another writ of scire facias to be issued. The writ, however, was not served

until July 3, 2008. An order of revivor of judgment lien was entered on June 30,

2008.

John Horne died in May 2012.

In February 2014, Cuthbert filed the present case seeking to foreclose on her

judgment lien against property that she alleged had been owned by John Horne

during his life. She sought a declaratory judgment finding that the lien of the 1978

judgment is prior and paramount to the right, title, or possession of Margaret Horne

in the real property, or alternatively, a finding that Horne holds such real property as

a constructive trustee, to be ordered conveyed to Cuthbert.

Horne’s answer denied the material allegations of the complaint other than the

existence of the judgment and that John Horne acquired and conveyed real property

during his lifetime. Horne also pled the affirmative defenses of estoppel, laches, statute

of a him and him and limitations, waiver, and other affirmative defenses.

3
Cite as 2015 Ark. App. 592

After the circuit court denied Horne’s motion to dismiss and motion for

summary judgment, the case proceeded to a bench trial. In its findings of fact, the

court first set forth the chronology of the prior lien revivors. In doing so, the court

noted that entry of the order reviving the lien preceded service of the writ in the

1985, 1998, and 2008 revivor proceedings. The court found that Cuthbert’s claim

was not barred by laches because she was not guilty of an unreasonable delay in

asserting her rights and that Horne had not proved a detrimental change in her

position as a result of any delay. The court found that Horne admitted in discovery

answers that John Horne owned interests in certain property after the initial judgment

had been entered. The court further found that other evidence showed that John

Horne had an interest in other properties. Cuthbert was declared entitled to a

judgment ordering the sale of the property as was necessary to satisfy her lien.

Judgment was entered on October 7, 2014. This appeal followed the circuit court’s

denial of Horne’s motion for new trial or to amend the court’s findings of fact and

conclusions of law.

Our standard of review on appeal from a bench trial is not whether there is

substantial evidence to support the findings of the circuit court, but whether the

circuit court’s findings were clearly erroneous or clearly against the preponderance of

the evidence. City of Rockport v. City of Malvern, 2010 Ark. 449, 374 S.W.3d 660.

Disputed facts and determinations of credibility are within the province of the fact-

4
Cite as 2015 Ark. App. 592

finder. Id. A circuit court’s conclusions of law, however, are given no deference on

appeal. Id.

Horne first argues that the orders reviving the judgment lien in 1985, 1998,

and 2008 are void because Cuthbert failed to serve her petitions and the writs of scire

facias on John Horne prior to obtaining orders extending the judgment lien. We

agree.

A writ of scire facias is a writ issued requiring a person against whom it is

brought to show cause why a judgment should not be revived. See Rose v. Harbor E.,

Inc., 2013 Ark. 496, 430 S.W.3d 773. Scire facias is not the institution of a new suit

but is a continuation of the old one, and its object is not to procure a new judgment

for the debt but to execute the judgment that has already been obtained. Id. Section

16-65-501 of the Arkansas Code governs the issuance of a writ for scire facias and

provides, in pertinent part, as follows:

(a) The plaintiff or his or her legal representatives may, at any time before
the expiration of the lien on any judgment, sue out a scire facias to revive the
judgment.

(b) The scire facias shall be served on the defendant or his or her legal
representatives, terre-tenants, or other person occupying the land, and may be
directed to and served in any county in this state.

....

(d) If upon service or publication of the scire facias, . . . the defendant or
any other person interested does not appear and show cause why such
judgment or decree shall not be revived, the judgment shall be revived and the

5
Cite as 2015 Ark. App. 592

lien continued for another period of ten (10) years and so on from time to time
as often as may be necessary.

(e) If a scire facias is sued out before the termination of the lien of any
judgment or decree, the lien of the judgment revived shall have relation to the
day on which the scire facias issued. However, if the lien of any judgment or
decree has expired before suing out the scire facias, the judgment of revival
shall be only a lien from the time of the rendition of the judgment.

(f) No scire facias to revive the judgment shall be issued except within
ten (10) years from the date of the rendition of the judgment, or if the
judgment shall have been previously revived, then within ten (10) years from
the order of revivor.

Ark. Code Ann. § 16-65-501 (Repl. 2013).

In response to Horne’s reliance on Rose, Cuthbert attempts to distinguish it.

She argues that, because no writ was issued in Rose, it could never be served, while

she always obtained service on her former husband. However, the Rose court rejected

the appellant’s argument that, by serving the petition itself, he complied with the

statute. Because there was service, albeit without the writ itself, in Rose, Cuthbert’s

attempted distinction fails.

Cuthbert also argues that Rose does not require service of the writ prior to

entry of the order reviving the judgment lien. This argument is belied by the statute

itself. Service of the writ is required by Ark. Code Ann. § 16-65-501(b). Personal

service is not necessarily required because section 16-65-501(c) allows for service by

posting if the judgment debtor cannot be located and served. Bohnsack v. Beck, 294

Ark. 19, 740 S.W.2d 611 (1987). If upon service of the scire facias, the defendant or

6
Cite as 2015 Ark. App. 592

any other person interested does not appear and show cause why such judgment shall

not be revived, the judgment shall be revived and the lien continued for another

period of ten years. Ark. Code Ann. § 16-65-501(d). If the purpose of the writ is to

require the judgment debtor to show cause why the judgment should not be

extended, then service before entry of the order extending the lien is required,

otherwise the judgment debtor is denied a meaningful chance to be heard.

As the Rose court noted,

Arkansas Code Annotated § 16-65-108 . . . Provides that “[a]ll
judgments, orders, sentences, and decrees made, rendered, or pronounced by
any of the courts of the state against anyone without notice, actual or
constructive, and all proceedings had under judgments, orders, sentences, or
decrees shall be absolutely null and void.” And as this court has observed, a
judgment rendered without notice to the parties is void. When there has been
no proper service and, therefore, no personal jurisdiction over the defendants
in a case, any judgment is void ab initio.

Rose, 2013 Ark. 496, at 10, 430 S.W.3d at 779–80 (citations omitted) (alteration in

original).

Because there was no service of the writ of scire facias in accord with our

statute’s service requirements prior to the entry of the orders reviving Cuthbert’s

judgment lien in 1985, 1998, and 2008, we hold that the orders reviving the lien are

void ab initio. As more than ten years have elapsed since Cuthbert obtained a valid

reviver of her lien, see Ark. Code Ann. § 16-65-501(f), her lien expired and there is

7
Cite as 2015 Ark. App. 592

no basis for her complaint for foreclosure. Accordingly, we reverse the judgment of

the circuit court and dismiss Cuthbert’s complaint. 3

Reversed and dismissed.

VIRDEN and GLOVER, JJ., agree.

Kenneth W. Cowan, PLC, by: Kenneth W. Cowan, for appellant.

Hardin, Jesson & Terry, PLC, by: Rex M. Terry, for appellee.

We express no opinion on whether Cuthbert’s underlying judgment remains
3

valid.
8