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ARKANSAS COURT OF APPEALS DIVISION I No. CV-13-344

ELAINE HOWARD, DONALD Opinion Delivered November 6, 2013 HOWARD, and LARRY CODLING APPELLANTS APPEAL FROM THE BENTON COUNTY CIRCUIT COURT V. [NO. PR 2012-018-5]

HONORABLE XOLLIE DUNCAN, WILLIAM CODLING JUDGE APPELLEE REVERSED AND REMANDED

RITA W. GRUBER, Judge

This is an appeal pursuant to Rule 2(a)(4) of the Arkansas Rules of Appellate

Procedure–Civil, authorizing an appeal from an order that strikes out an answer. The Benton

County Circuit Court struck the answers of appellants—Elaine Howard, Don Howard, and

Larry Codling—as untimely. Appellants bring two points on appeal: (1) the circuit court

erred in striking Don Howard’s answer as untimely and in not recognizing and applying the

common-defense theory to the answers of Elaine Howard and Larry Codling; and (2) the

circuit court lacked subject-matter jurisdiction to enter an order quieting title to the land at

issue in the case. Because we hold that the circuit court erred in striking Don Howard’s

answer as untimely, we reverse its order and remand for further proceedings consistent with

this opinion.

Appellants Elaine Howard and Larry Codling are the only children of appellee,

William Codling, who, at the time of the hearing in this matter, was ninety-one years old. Cite as

Appellant Don Howard is married to Elaine. This case began on January 12, 2012, when

Elaine and Larry filed a petition for the appointment of a conservator of the estate of

William, alleging that he was suffering from a decline in executive reasoning and mental

status. William answered, denying that a conservator was necessary and, on February 27,

2012, filed a four-count counterclaim, requesting the court to order the following: (1) Elaine

to repay the indebtedness due on William’s purchase of a car for her; (2) Elaine to return

funds that she obtained by cashing William’s certificate of deposit; (3) Elaine and Don to

repay the unpaid balance on a promissory note secured by a mortgage for their home, which

they purchased from William; and (4) the setting aside of a quitclaim deed executed by

William and his late wife to William, his late wife, Elaine, and Larry as joint tenants with

right of survivorship. William served a copy of the counterclaim on Elaine and Larry by

serving their attorney. He did not, however, serve a copy of a summons or counterclaim on

Don, who was not a party to the original lawsuit filed by Elaine and Larry.

On July 30, 2012, Elaine, Larry, and Don filed a response denying “each and every

allegation” not specifically admitted—Elaine did admit that she had taken William’s funds to

protect his interests. They also filed a motion to dismiss the counterclaim, alleging that the

counterclaim failed to state a claim upon which relief could be granted, that the applicable

statutes of limitation had expired, that laches barred the claims, that no valid claim was made

against Larry, that William was incompetent and thus could not file a counterclaim, and that

the court lacked personal jurisdiction over Don.

On August 13, 2012, the circuit court dismissed the petition for appointment of a

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conservator, finding that William must consent for a conservator to be appointed under

and that he had not done so. The court stated that William’s

counterclaim was pending and that its order dismissing the petition was without prejudice

to the original petitioners to file a petition for appointment of a guardian if they chose to do

so. Elaine and Larry then filed a petition for appointment of a guardian on August 31, 2012.

William responded, denying that he needed a guardian. On September 19, 2012, he also filed

a motion to strike Elaine and Larry’s answer to his counterclaim and motion to dismiss,

contending that they were untimely. Elaine, Larry, and Don filed a joint response to

William’s motion to strike, arguing that, even if Elaine and Larry had defaulted on the

counterclaim, their defenses were “saved” under the common-defense theory because

Don—who was not properly served—had filed a response asserting a general denial, which

was applicable to all three of them.

The circuit court held a hearing on the motion to strike and the motion to dismiss on

October 31, 2012. William argued that Elaine and Larry’s response to his counterclaim was

untimely, having been filed well past the thirty days allowed for an answer; that Don was not

a party; and that the court had no jurisdiction over Don pursuant to Rule 4(i) of the Arkansas

Rules of Civil Procedure, which requires the court to dismiss a defendant if service has not

been made upon him within 120 days after the filing of the complaint (in this case, the

counterclaim). Thus, William argued, the common-defense theory was not applicable to this

case. Appellants argued that Don entered the case when he filed a joint response with Elaine

and Larry generally denying the allegations in William’s counterclaim; thus, they contended,

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the common-defense doctrine applied, causing Don’s common defense to serve as a defense

for all three appellants. The judge ruled from the bench as follows:

I think I don’t have any jurisdiction of Don Howard, Donald Howard, after one hundred and twenty (120) days of no service and no answer he was out. So, the issue is whether the Motion to Strike the late Answer and the Motion to Dismiss filed by Elaine and Larry should be granted. And I think I have to. I mean, I don’t think I have any choice but to strike those; they’re in default. Donald Howard doesn’t—he’s not in the case, he can’t be in the case. If he filed it before that time, we might be looking at something different, but I don’t—we’re not. So, the Motion to Strike the Answer and the Motion to Dismiss will be granted.

On December 21, 2012, appellants submitted a brief in objection to the proposed

order in which they argued that, although he had not been served, Don was entitled to file

an answer; he did file an answer; having not been served, he missed no deadline in filing his

answer; and Rule 4(i) was not a proper defense for William to raise. The circuit court

entered an order on January 4, 2013, finding that “[appellants] have not timely responded to

the Counterclaim, their Response, Amended Response and Motion to Dismiss are stricken

of record.” The court then entered partial default judgment on behalf of William on Count

IV of his counterclaim, setting aside the quitclaim deed. Finally, the court stated that there

would be “a later hearing to determine the amount of any judgments to be rendered in the

remaining counts of the Counterclaim and to award the appropriate remedies pursuant to the

Counterclaim.” Appellants appeal from the court’s order.

We review a circuit court’s decision to strike an answer and grant a default judgment

for abuse of discretion. Looney v. Blair,

, at 2; Rennels v. Four Seasons HVAC

Distibs.,

, at 3. In this case, the court struck Don’s answer, finding that

it was untimely. Appellants argue that this was an abuse of discretion. We agree, and we

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reverse the court’s order striking Don’s answer.1

We first note that the parties argue on appeal as if the court struck Don’s answer

under Ark. R. Civ. P. 4(i). A court does not strike an answer under Rule 4(i); a court

dismisses the action against the defendant for lack of jurisdiction under Rule 4(i).2 Although

we recognize the court’s oral ruling pursuant to Ark. R. Civ. P. 4(i) that it had no

jurisdiction over Don because service had not been made upon him within 120 days after

William filed his counterclaim, the court’s written order abandoned this oral ruling and

struck Don’s answer as untimely—thereby presuming that it had personal jurisdiction over

him. Our law is clear that to the extent a court’s oral ruling conflicts with its written order,

the written order controls. Nat’l Home Ctrs., Inc. v. Coleman,

, 120–21,

(2007).

We now turn to appellants’ argument that the court erred in striking Don’s answer.

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

jurisdiction over a defendant. Raymond v. Raymond,

,

(2001).

But the defense of personal jurisdiction may be waived. Littles v. Office of Child Support

Enforcement,

,

. In this case, Don was not served

1 We recognize that the court also struck the answers of Elaine and Larry, but appellants have not argued that the court’s decision doing so was error. Thus, our opinion does not affect the court’s order striking their answers. 2 In this case, the court struck Don’s answer and awarded a partial default judgment. A default judgment is void if the trial court lacked jurisdiction over the person. J & V Rest. Supply & Refrigeration, Inc. v. Sup. Fixture Co.,

,

(2002).

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with valid process. He did, however, file a response to William’s counterclaim 153 days after

the counterclaim was filed. Rule 12(a)(1) of the Arkansas Rules of Civil Procedure requires

a response to be filed within thirty days after service of the pleading. Because Don was never

served, his response was not untimely under Rule 12(a)(1), and the court erred in finding

otherwise.

Finally, appellants argue that the common-defense theory applies, causing Don’s

answer to serve as a defense for Elaine and Larry. Because the circuit court struck the joint

response as to all three appellants, it did not decide this issue, and we have no ruling to

review. Accordingly, we remand this issue for the circuit court to determine. We also

remand for reconsideration of the court’s ruling regarding count IV of William’s

counterclaim in light of our reversal of the court’s order striking Don’s answer.

Reversed and remanded.

HARRISON and WHITEAKER, JJ., agree.

Adams Law Firm, by: Lauren Adams, for appellant.

Lingle Law Firm, by: Stephen Hardin, for appellee.

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