Tuccillo v. Adkins & Assocs., Inc.
| Decision Date | 30 January 2019 |
| Docket Number | No. CV-18-452,CV-18-452 |
| Citation | 569 S.W.3d 900,2019 Ark. App. 55 |
| Parties | Roy TUCCILLO, Appellant v. ADKINS & ASSOCIATES, INC., Appellee |
| Court | Arkansas Court of Appeals |
Sanford Law Firm, PLLC, by: Josh Sanford, for appellant.
Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellee.
Roy Tuccillo appeals a judgment of the Pope County Circuit Court finding him personally liable to appellee Adkins & Associates, Inc. ("Adkins"), for $ 100,800, plus interest and attorney's fees. On appeal, he argues that the circuit court erred in two respects: (1) in finding that issuance of the summons was properly effectuated pursuant to Arkansas Rule of Civil Procedure 4(a) (2018); and (2) in finding that he personally guaranteed the debts of his company, Anchor Frozen Foods ("Anchor"). We find no error and affirm.
Adkins is an Arkansas-based poultry broker. Tuccillo is the president and majority stockholder of a New York-based company, Anchor Frozen Foods. Adkins began selling frozen chicken to Anchor in 2009. To accomplish shipment orders without prepayment, Adkins required Anchor to complete a "Customer Profile Form." Adkins forwarded the form to Anchor, and Anchor returned the form completed with Tuccillo's signature at the bottom.
In March 2012, Anchor ordered 60,000 pounds of frozen chicken from Adkins with a total purchase cost of $ 100,800. Adkins shipped the chicken to Anchor, but Anchor objected to the weight of the goods and refused to pay. Adkins initially attempted collection against Anchor.1 When those efforts failed, Adkins filed a complaint against Tuccillo, asserting that he had personally guaranteed payment of the Anchor account. Tuccillo answered Adkins's complaint, admitting that Anchor purchased chicken from Adkins but denying that he personally guaranteed payment for Anchor's debts. In addition, Tuccillo asserted insufficiency of service of process as an affirmative defense.2
The circuit court was essentially called on to decide two issues: (1) Was Tuccillo properly served under Rule 4(a) of the Arkansas Rules of Civil Procedure ? and (2) Did Tuccillo personally guarantee payment for Anchor? The circuit court found that Tuccillo had been properly served. The court also determined that Adkins had proved the validity of Tuccillo's signature on the guarantee agreement; alternatively, the court found that by his conduct, Tuccillo was estopped from denying the validity of the agreement. The circuit court entered judgment finding that Tuccillo was indebted to Adkins in the amount of $ 100,800, plus interest and attorney's fees. Tuccillo timely appealed.
In his first argument on appeal, Tuccillo argues that the circuit court erred in finding that service of process in this case complied with Rule 4(a) of the Arkansas Rules of Civil Procedure. To address this argument, we provide more details concerning the filing of Adkins's complaint, the issuance of summons, and the service on Tuccillo.
Adkins filed its complaint on June 20, 2014. That same day, the Pope County circuit clerk issued a summons informing Tuccillo that the lawsuit had been filed against him. Adkins began its efforts to serve Tuccillo, but these efforts proved difficult. Adkins was required to file multiple motions for extension of time to complete service, each of which was granted.3 A New York-based process server finally hand-delivered a copy of a summons and complaint on Tuccillo on December 13, 2016. The summons that was eventually served, however, bore a date of June 8, 2016, not the original summons date of June 20, 2014. Tuccillo contends that service on him of a summons dated 719 days after the filing of the complaint was in violation of Rule 4(a) of the Arkansas Rules of Civil Procedure.
Rule 4(a) sets out the requirement for the issuance of a summons and provides that "[u]pon the filing of the complaint, the clerk shall forthwith issue a summons and cause it to be delivered for service to a person authorized by this rule to serve process."4 Here, the Pope County circuit clerk issued a summons on June 20, 2014, the date of the filing of the complaint. We conclude that this action of the clerk satisfies the language of Rule 4(a) requiring the summons to issue "forthwith."
Tuccillo argues on appeal that he was not served with the summons that had been issued forthwith upon the filing of the lawsuit, on June 20, 2014. Instead, he asserts that he was served with a "completely different" summons dated June 8, 2016.5 Tuccillo asserts that Adkins served him with a summons dated 719 days after the filing of the complaint, "in violation of the requirement that the summons issue ‘forthwith’ upon filing of the complaint."
In support of this argument, Tuccillo cites cases holding that the service requirements of Rule 4 must be strictly construed and exactly complied with. See, e.g. , Smith v. Sidney Moncrief Pontiac, Buick, GMC Co. , 353 Ark. 701, 120 S.W.3d 525 (2003) ; Vinson v. Ritter , 86 Ark. App. 207, 167 S.W.3d 162 (2004). We agree that the technical requirements of a summons set out in Ark. R. Civ. P. 4(b) must be construed strictly, and compliance with them must be exact. Wilkins v. Food Plus, Inc. , 99 Ark. App. 64, 68, 257 S.W.3d 107, 111 (2007) (citing Tobacco Superstore, Inc. v. Darrough , 362 Ark. 103, 207 S.W.3d 511 (2005) ); see also Davis v. Shelter Ins. , 2017 Ark. App. 656, at 4, 536 S.W.3d 621, 625 (). We do not find Tuccillo's arguments persuasive, however.
The plain language of Rule 4(a) states only that the summons be issued "forthwith." Nothing in Rule 4(a), however, expressly provides that the summons must thereupon be served "forthwith."6 Instead, Rule 4(i) allows 120 days for serving the summons and complaint, unless the court extends the time for service upon good cause shown. As noted above, Tuccillo does not challenge any of the extensions that were granted by the circuit court, and any delay necessitating the issuance of a new summons reflecting the office of the circuit clerk's current personnel was because of Tuccillo's efforts to avoid service. Because he cites no authority that dictates that a subsequent, duplicate summons is ineffective when the first summons was issued "forthwith" upon the filing of the complaint, we affirm on this point.
In his second point on appeal, Tuccillo argues that the circuit court erred in finding that he personally guaranteed Anchor's debts. To address this issue, we examine the "Customer Profile" document between Adkins and Anchor. For clarity, we reproduce pertinent portions of the form here:
ADKINS & ASSOCIATES CUSTOMER PROFILE
NAME OF BUSINESS: Anchor Frozen Foods
TRADE NAME: _________________
BILLING ADDRESS: PO Box 887 Westbury NY 11590
SHIPPING ADDRESS: 28 Urban Ave Westbury NY 11590
NAME(S) OF OWNER, PARTNERS, OR OFFICERS
NAME: Roy Tuccillo TITLE: President
Tuccillo thus represented himself at the top of the document as "President" of Anchor. The document further contained the following relevant language:
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