WILLIAMSBURG MANAGEMENT CO INC LLC v. PERKINS FIRE PRO INC PFP (2026)

Appellants Williamsburg Management Co., Inc. (Williamsburg), and Innisfree Investments, LLC (Innisfree) (collectively appellants), appeal after the Pulaski County Circuit Court filed an order denying their petition for writ of execution and the deemed denial of their motion for reconsideration in favor of appellee Perkins Fire Pro, Inc., a/k/a Fire Sprinkler PFP, Inc. (Perkins or appellee). On appeal, appellants argue that (1) they had satisfied the requirements for scire facias pursuant to Arkansas Code Annotated section 16-65-501 (Supp. 2023),¹ and the Pulaski County Circuit Court therefore had proper jurisdiction to issue the writ of execution against appellee; and (2) the circuit court clearly erred in finding that appellants’ Benton County Circuit Court scire facias suit was time-barred because the Pulaski County Circuit Court relied on an affirmative defense appellee failed to plead on its own. We reverse and remand for further proceedings consistent with this opinion.

I. Relevant Facts

A. Benton County Circuit Court Proceedings

This case stems from a judgment obtained in the Benton County Circuit Court. On April 26, 2012, the Benton County Circuit Court entered a judgment against appellee and awarded appellants damages in the amount of $77,813.04, bearing interest at a rate of 17 percent per annum until paid in full, as a result of appellee's negligent installation and maintenance of a sprinkler system. The judgment was not satisfied.

On March 14, 2022, appellants filed a motion to renew judgment to sue out scire facias and revive the judgment against appellee for an additional period of ten years in the Benton County Circuit Court. On March 23, 2022, after appellants were unable to locate appellee, appellants filed a motion for order authorizing service by warning order with the Benton County Circuit Court. On March 28, 2022, the Benton County Circuit Court issued an order for service by warning order and to show cause, which stated the following in relevant part:

COMES on for consideration by the Court the Motion and Affidavit of Plaintiff for service of Defendant Perkins Fire Pro, Inc., a.k.a. Fire Sprinkler PFP, Inc. by Warning Order under Order of this Court pursuant to Ark. Code Ann. § 16-65-501(c)(1), which allows the Court to direct the manner of such service.

Having reviewed the Plaintiffs Motion and Affidavit, being fully advised in the premises, the Court finds that despite diligent effort the Defendant cannot be found and that accordingly such service should proceed upon the Defendant, whether located within or without the State of Arkansas, pursuant to Ark. Code Ann. § 16-65-501(c)(1).

The nature of this case is a scire facias motion filed on behalf of Williamsburg Management Co., Inc. and Innisfree Investments, LLC, to sue out scire facias to revive the Judgment obtained on April 27, 2012 against Perkins Fire Pro, Inc., a.k.a Fire Sprinkler PFP, Inc., in Benton County, Arkansas, which secured a lien on real property owned by Perkins Fire Pro., Inc., located at 3 Warehouse Row, Jacksonville, AR 72706.

On April 26, 2022, the Benton County Circuit Clerk filed a return of service stating that the order was posted on the Benton County Courthouse bulletin board from March 28 to April 26, 2022. That same day, following the show-cause hearing at which neither appellee nor any other interested persons appeared, the Benton County Circuit Court filed an order granting appellants’ motion in its entirety and reviving the judgment for ten years from the date of the order pursuant to Arkansas Code Annotated section 16-65-501.

B. Pulaski County Circuit Court Proceedings

After obtaining their judgment in 2012 from the Benton County Circuit Court, appellants registered the judgment as a judgment lien against appellee's real property located in Pulaski County on June 5, 2012, and a writ of execution was subsequently issued by the Pulaski County Circuit Court clerk on July 18, 2012. The judgment was not satisfied. On July 14, 2023, another writ of execution was issued by the Pulaski County Circuit Court clerk against appellee's real property. Because the Pulaski County Sheriff's Department was unable to locate appellee to serve the writ of execution, appellants filed a motion for order authorizing service by warning order with attached exhibits in the Pulaski County Circuit Court on July 17, 2023. On October 4, 2023, the Pulaski County Circuit Court filed an order for service of process upon appellee by warning order and to show cause.

On February 2, 2024, following the proper posting of a warning order, the Pulaski County Circuit Court held a show-cause hearing. Appellee did not appear. At the hearing, the circuit court stated that it needed proof that a writ of scire facias was served on appellee before the Benton County Circuit Court filed the order reviving the judgment pursuant to Arkansas Code Annotated section 16-65-501(b). Appellants’ counsel briefly explained the history of the Benton County Circuit Court proceedings as already outlined above. At the conclusion of the hearing, the Pulaski County Circuit Court asked appellants’ counsel to brief the issue of whether the Benton County Circuit Court's order of revivor was valid on the issues of service and jurisdiction in light of the holding in Rose v. Harbor East, Inc., 2013 Ark. 496, 430 S.W.3d 773.

Appellants filed their memorandum of law on March 20, 2024. After outlining the procedural history, appellants argued that they had satisfied the service and writ requirements for scire facias pursuant to Arkansas Code Annotated section 16-65-501. They further argued that because they had properly complied with the statute, the Pulaski County Circuit Court held proper jurisdiction to issue a writ of execution against appellee. Appellee did not file a response.

On June 3, 2024, the Pulaski County Circuit Court filed an “Order Denying Revivor,” which stated that it was denying appellants’ petition for writ of execution. We note that the circuit court misquotes portions of section 16-65-501 in its findings. For example, it quotes the language contained in subsection (d) of the statute instead of the language contained in subsection (c). After the circuit court cited and discussed Rose, supra, and Horne v. Cuthbert, 2015 Ark. App. 592, 473 S.W.3d 559, the circuit court made the following relevant findings:

[I]n this case, no writ of scire facias was ever issued or served on [appellee] before the ten years from the entry of the default judgment elapsed. Accordingly, this Court finds that the April 26, 2022 “order of revivor” issued by the Benton County Circuit Court is void ab initio and leaves this Court without jurisdiction to grant the requested relief of a writ of execution against Defendant's real property. Because the lien expired, this matter is time-barred, and there is no basis for this complaint in foreclosure.

Petition for Writ of Execution is hereby DENIED.

On June 11, 2024, appellants filed a motion for reconsideration of the order denying writ of execution and a brief in support of the motion pursuant to Arkansas Rule of Civil Procedure 60. In their motion and brief in support, appellants argued that the circuit court erred in denying their petition for writ of execution because they satisfied the statutory requirements for scire facias pursuant to Arkansas Code Annotated section 16-65-501; therefore, the circuit court had proper jurisdiction to issue the writ of execution against appellee. They further argued that the circuit court should have reconsidered its finding that appellants’ revivorship suit was time-barred because that determination relied on an affirmative defense appellee did not specifically plead on its own. Appellee did not file a response.

The circuit court never ruled on the motion for reconsideration; accordingly, the motion for reconsideration was deemed denied by operation of law as of the thirtieth day from the date it was filed. See Ark. R. App. P.–Civ. 4(b)(1). This timely appeal followed.

II. Standard of Review

The question of the correct application and interpretation of an Arkansas statute is a question of law. See Rose, supra. When the issue is one of law, our review is de novo; however, we will not reverse a circuit court's factual findings unless they are clearly erroneous. Middleton v. Lockhart, 2012 Ark. 131, 388 S.W.3d 451; Wadley v. Hatton, 2024 Ark. App. 297, 689 S.W.3d 691. A finding of fact made by a circuit court sitting in equity is clearly erroneous when, despite supporting evidence in the record, the appellate court viewing all the evidence is left with a definite and firm conviction that a mistake has been made. Middleton, supra.

III. Discussion

On appeal, appellants generally argue that the Pulaski County Circuit Court erred in finding that the Benton County Circuit Court's April 26, 2022 “order of revivor” was void ab initio and the Pulaski County Circuit Court was therefore left without jurisdiction to grant the requested relief of a writ of execution against appellee's real property. In support, appellants specifically argue that they had satisfied the requirements for scire facias pursuant to Arkansas Code Annotated section 16-65-501, and we agree.

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 execution of the judgment that has already been obtained. Rose, supra. In order to revive a judgment, appellants were required to comply with the procedures dictated in section 16-65-501, which states the following in relevant part:

(a) The plaintiff or his or her legal representatives at any time before the expiration of the lien of a judgment may 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.

(c)(1) If the defendant cannot be found, the court shall make an order briefly setting forth the nature of the case and requiring all persons interested to appear on a date set by the court and show cause why the judgment or decree should not be revived and lien continued.

(2) A copy of the order shall be put up for four (4) weeks at the courthouse door of the county in which the judgment or decree may have been rendered.

(d) If upon service or publication of the scire facias, as required in subsection (c) of this section, 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 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.

(f) No scire facias to revive a 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.

(Emphasis added.)

The plain language of the statute makes clear that a plaintiff may “sue out” a scire facias to revive the judgment. See Ark. Code Ann. § 16-65-501(a). Clearly, appellants did so on March 14, 2022, when appellants filed a motion to renew judgment to sue out scire facias and revive the judgment against appellee for an additional period of ten years in the Benton County Circuit Court. See Rose, 2013 Ark. 496, at 9, 430 S.W.3d at 779 (quoting Black's Law Dictionary 1474 (8th ed. 2004), defining “sue out” as “[t]o apply to a court for the issuance of (a court order or writ)”). The statute next requires that the scire facias be served on the defendant. See Ark. Code Ann. § 16-65-501(b). We agree that this did not occur. However, section 16-65-501(c) specifically provides an alternative procedure when the defendant cannot be found, which the Pulaski County Circuit Court apparently ignored. The statute states that “[i]f the defendant cannot be found, the court shall make an order briefly setting forth the nature of the case and requiring all persons interested to appear on a date set by the court and show cause why the judgment or decree should not be revived and lien continued.” Id. § 16-65-501(c)(1) (emphasis added). “A copy of the order shall be put up for four (4) weeks at the courthouse door of the county in which the judgment or decree may have been rendered.” Id. § 16-65-501(c)(2). Here, as stated above, the Benton County Circuit Court issued an order for service by warning order and to show cause on March 28, 2022, and the order was posted on the Benton County Courthouse bulletin board from March 28 to April 26, 2022. Clearly, appellants satisfied the requirements set out in section 16-65-501(c). Finally, because there was “publication of the scire facias, as required in subsection (c),” and because appellee failed to appear and show cause on April 26, 2022, the Benton County Circuit Court properly filed an order granting appellants’ motion in its entirety and reviving the judgment for ten years from the date of the order pursuant to section 16-65-501(d).

The Pulaski County Circuit Court denied appellants’ petition for writ of execution on the mistaken belief that it lacked jurisdiction because the Benton County Circuit Court's order was void ab initio. Relying on Rose, supra, the Pulaski County Circuit Court found that appellants were required to serve a writ of scire facias on appellee before the ten years from the entry of the judgment elapsed. However, Rose is distinguishable from the facts of this case in that the defendants’ whereabouts were known. In fact, the plaintiff in Rose served the defendants with his petition for writ of scire facias. Therefore, the plaintiff in Rose was required to satisfy the requirements of section 16-65-501(b). Here, appellants could not satisfy the requirements of section 16-65-501(b) because appellee could not be found. Therefore, they were required to satisfy the requirements of section 16-65-501(c). Appellants did so, and the Pulaski County Circuit Court clearly erred in finding that the Benton County Circuit Court's order was void ab initio and that it lacked jurisdiction. Accordingly, we must reverse and remand for further proceedings consistent with this opinion. Because we reverse and remand for the reasons stated herein, it is unnecessary for us to opine on the remainder of appellants’ arguments for reversal. See Tilley v. Malvern Nat'l Bank, 2019 Ark. 376, 590 S.W.3d 137.

Reversed and remanded.

FOOTNOTES

1.   We note that the legislature recently amended Arkansas Code Annotated section 16-65-501; however, the amended version was not in effect at the time of either court's decisions in this matter.

KENNETH S. HIXSON, Judge

Wood and Murphy, JJ., agree.