Dobbs v. Discover Bank

Decision Date28 November 2012
Docket NumberNo. CA 12–449.,CA 12–449.
Citation2012 Ark. App. 678,425 S.W.3d 50
PartiesDeborah A. DOBBS, Appellant v. DISCOVER BANK, Appellee.
CourtArkansas Court of Appeals

OPINION TEXT STARTS HERE

Sanford Law Firm, PLLC, Russellville, by: Josh Sanford, for appellant.

Stephen L. Bruce, for appellee.

DOUG MARTIN, Judge.

Appellee Discover Bank filed a complaint in Pulaski County Circuit Court against appellant Deborah Dobbs on July 11, 2011, alleging that Dobbs had a past-due balance of $13,216.11 on her Discover Card account. The complaint was served on Dobbs on July 25, 2011. Dobbs filed her answer on August 9, 2011, generally denying the allegations in the complaint and affirmatively stating, among other things, that the summons was defective and defectively served so that the case should be dismissed pursuant to Arkansas Rule of Civil Procedure 12(b).

The matter proceeded to trial on October 31, 2011. Before Discover Bank Began calling its witnesses, Dobbs asked the court to consider her motion to dismiss. At that time, she raised several issues, arguing that the summons was defectively served because Federal Express (“FedEx”), a commercial delivery company, delivered it to her husband, rather than to her personally, in violation of Arkansas Rule of Civil Procedure 4(d)(8)(C); she also contended that FedEx was not an approved commercial delivery company. Dobbs further asserted that there were “at least six or seven errors on the face of the summons,” including what she described as missing and improper language that was at variance with the “Official Form of Summons” described in the rules of civil procedure.

At the conclusion of the trial, the circuit court asked the parties to submit written briefs on the issue. After considering the briefs, the circuit court entered an order on December 28, 2011, denying Dobbs's motion to dismiss. A separate judgment in favor of Discover Bank on the underlying claim was entered on February 29, 2012. Dobbs filed a notice of appeal on March 5, 2012, and now argues to this court that the circuit court erred in denying her motion to dismiss.

In cases where the appellant claims that the trial court erred in denying a motion to dismiss based on alleged errors in the process of service, our standard of review is whether the trial court abused its discretion in denying the motion to dismiss. Nobles v. Tumey, 2010 Ark. App. 731, 379 S.W.3d 639;Kuelbs v. Hill, 2010 Ark. App. 427, 379 S.W.3d 47. Moreover, where the issue presented involves the correct interpretation of an Arkansas court rule, the issue is a question of law that the appellate court reviews de novo. Holliman v. Johnson, 2012 Ark. App. 354, 417 S.W.3d 222;Solis v. State, 371 Ark. 590, 269 S.W.3d 352 (2007).

1 he law in Arkansas is well settled that service of valid process is necessary to give a court jurisdiction over a defendant. See Patsy Simmons P'ship Ltd. v. Finch, 2010 Ark. 451, 370 S.W.3d 257;Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003). It is equally settled that service requirements set out by rules, being in derogation of common-law rights, must be strictly construed and compliance with them must be exact. Patsy Simmons P'ship, supra;Carruth v. Design Interiors, Inc., 324 Ark. 373, 374–75, 921 S.W.2d 944, 945 (1996). Specifically, the appellate courts have consistently required that the technical requirements of a summons as set out in Arkansas Rule of Civil Procedure 4(b) be strictly construed and compliance with those requirements be exact. Smith, 353 Ark. at 709, 120 S.W.3d at 530 (citing Thompson v. Potlatch Corp., 326 Ark. 244, 930 S.W.2d 355 (1996)). The supreme court has recently said that this “bright line standard of strict compliance permits certainty in the law; whereas, a substantial compliance standard would lead to an ad hoc analysis in each case in order to determine whether the due-process requirements of the Arkansas and U.S. Constitutions have been met.” Trusclair v. McGowan Working Partners, 2009 Ark. 203, at 4, 306 S.W.3d 428, 430.

I. Defective Summons

In her first point on appeal, Dobbs contends that the circuit court erred in denying her motion to dismiss because the summons was defective in the following respects. 1) the summons failed to list the address for the clerk of the court; 2) it did not state that it was from “The State of Arkansas to Defendant; 3) it failed to state an address for Discover Bank's attorney; and 4) it excluded the “mandatory” language, “judgment by default may be entered against you for the relief asked in the complaint unless you file a written answer or motion under Rule 12 of the Arkansas Rules of Civil Procedure and thereafter appear and present your defense.”

Rule 4(b) of the Arkansas Rules of Civil Procedure governs the form of summonses and provides as follows:

The summons shall be styled in the name of the court and shall be dated and signed by the clerk; be under the seal of the court; contain the names of the parties; be directed to the defendant; state the name and address of the plaintiff's attorney, if any, otherwise the address of the plaintiff; and the time within which these rules require the defendant to appear, file a pleading, and defend and shall notify him that in case of his failure to do so, judgment by default may be entered against him for the relief demanded in the complaint.

Our court recently held that only the “actual language of subsection (b) in Rule 4 of the Arkansas Rules of Civil Procedure sets forth the items that must be included in a summons, the lack of which might render it void under the ‘exact compliance’ standard.” Talley v. Asset Acceptance, LLC, 2011 Ark.App. 757, at 4, 2011 WL 6064975.

Thus, we reject Dobbs's first contention that the summons was defective because it failed to list the address for the Pulaski County Clerk's Office. In Talley, supra, this court specifically held that [n]othing contained in subsection (b) requires the court address to appear in the summons,” and the fact that the “Official Form of Summons” contained a blank for that information to be filled in was “secondary.” Id. at 4. The actual language of Rule 4(b) requires that the summons “shall be dated and signed by the clerk,” and that requirement was satisfied here. Thus, there is no merit to this portion of Dobbs's argument.

We also reject Dobbs's challenge to the summons on the basis that, as she phrases her argument, it “excludes the mandatory language, ‘judgment by default may be entered against you for the relief asked in the complaint unless you file a written answer or motion under Rule 12 of the Arkansas Rules of Civil Procedure and thereafter appear and present your defense.’ This language is again from the “Official Form of Summons.” 1Rule 4(b) provides that the summons must “notify [the defendant] that in case of his failure to [appear, file a pleading, and defend], judgment by default may be entered against him for the relief demanded in the complaint.”

The summons here contains the following statement. “The attached Complaint will be considered admitted by you and a judgment by default may be entered against you for the relief asked in the Complaint unless you file a written response to answer and thereafter appear and present your defense.” Although this is not a verbatim recitation of the language of Rule 4(b), the summons conveys precisely the information that the Rule requires. Again, then, Dobbs's argument is unavailing.

We find merit, however, in Dobbs's other points, wherein she complains that the summons does not state the address of the plaintiff's attorney and is not brought in the name of the State of Arkansas. First, the language of Rule 4(b) specifically requires the summons to include the plaintiff's attorney's address, and the summons here simply does not do so. Discover Bank admits that this information is not present on the summons, but it argues that the lack of its attorney's address is immaterial because the address is listed on the complaint that was attached to the summons. While it may seem a minor detail, this information is required by the rule, and nothing in the plain language of the rule appears to permit the required information to merely be incorporated from somewhere else. Thus, we conclude that the summons was defective in this respect.

Finally, Dobbs challenges the fact that the summons simply states that it is addressed “to the above named defendant,” rather than stating that it was from the State of Arkansas. In Gatson v. Billings, 2011 Ark. 125, 2011 WL 1206500, the supreme court held a summons defective where it “proclaimed it was from Mizell Gatson to Defendant,’ rather than saying it was from State of Arkansas to Defendant,’ as required by Rule 4(b).” Gatson, 2011 Ark. 125, at 1–2, 2011 WL 1206500, Although this specific language is found on the “Official Form of Summons,” rather than in Rule 4(b),2 the supreme court noted the critical nature of the authority by which a summons is issued:

Gatson's summons specified that it was from Mizell Gatson to Defendant,” rather than from the State of Arkansas. The language in Rule 4(b) requiring that the summons be directed to the defendant must be read in conjunction with article 7, section 49 of the Arkansas Constitution, which provides in relevant part, “All writs and other judicial process, shall run in the name of the State of Arkansas, bear test and be signed by the clerks of the respective courts from which they issue.” The language in article 7, section 49 is plain and unambiguous, and it must be given its obvious and common meaning. See Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 720, 120 S.W.3d 525, 537 (2003) (citing Worth v. City of Rogers, 341 Ark. 12, 14 S.W.3d 471 (2000); Daniel v. Jones, 332 Ark. 489, 966 S.W.2d 226 (1998)). Because Gatson's summons ran in the name Mizell Gatson, rather than the State of Arkansas, it fails to meet the requirements of Rule 4(b), which necessarily incorporate ...

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13 cases
  • Cogburn v. Marsh
    • United States
    • Arkansas Court of Appeals
    • March 1, 2023
    ...in the process of service, our standard of review is whether the circuit court abused its discretion in denying the motion to dismiss. Dobbs, supra. In cases in the appellant claims that the default judgment is void, our review is de novo, and we give no deference to the circuit court's rul......
  • City of Tontitown v. First Sec. Bank
    • United States
    • Arkansas Court of Appeals
    • May 24, 2017
    ...being in derogation of common-law rights, must be strictly construed and compliance with them must be exact. Dobbs v. Discover Bank, 2012 Ark. App. 678, at 2–3, 425 S.W.3d 50, 52. Rule 4(i) of the Arkansas Rules of Civil Procedure requires that service of process be accomplished within 120 ......
  • Carter v. Livingston
    • United States
    • Arkansas Court of Appeals
    • September 29, 2021
    ...waived the defense by litigating the case before filing its motion. The trial court asked about the application of Dobbs v. Discover Bank , 2012 Ark. App. 678, 425 S.W.3d 50, and counsel for the Hospital noted that Dobbs held that a summons was defective because it omitted the plaintiff's a......
  • Johnson v. Schumacher Grp. of Ark., Inc., CV-18-509
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    • Arkansas Court of Appeals
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    ...because "the relief sought was in no way inconsistent with [their] claim of improper venue." Likewise, in Dobbs v. Discover Bank , 2012 Ark. App. 678, at 10, 425 S.W.3d 50, 56, we held that a defendant did not waive personal jurisdiction by including a request for attorney's fees in his ans......
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