Trusclair v. McGowan Working Partners

• Decision Date: 16 April 2009
• Docket Number: No. 08-769.,08-769.
• Citation: Trusclair v. McGowan Working Partners, 2009 Ark. 203, 306 SW 3d 428 (Ark. 2009)
• Court: Arkansas Supreme Court
• Parties: Edward TRUSCLAIR, Appellant, v. McGOWAN WORKING PARTNERS, Appellee.

306 S.W.3d 428

2009 Ark. 203

Edward TRUSCLAIR, Appellant, v. McGOWAN WORKING PARTNERS, Appellee.

No. 08-769.

Supreme Court of Arkansas.

April 16, 2009.

Ronald L. Griggs, El Dorado, for appellant.

Greer, McCasland & Miller, LLP, by: William W. Miller, Jr., Texarkana, for appellee.

ANNABELLE CLINTON IMBER, Justice.

This appeal arises from the dismissal with prejudice of a complaint filed by Appellant Edward Trusclair. The facts forming the basis of this case are not in dispute. Appellant's original complaint against Appellee McGowan Working Partners was voluntarily dismissed without prejudice on May 26, 2006. Appellant then refiled his complaint on March 6, 2007, demanding damages from Appellee as a result of injuries allegedly caused by Appellee. The circuit court dismissed Appellant's complaint with prejudice on May 1, 2008.

Appellee is a foreign corporation with its principal place of business in Mississippi and an agent designated for service of process in Arkansas. Appellant served the agent by certified mail and return receipt on March 8, 2007, with a copy of the complaint attached to a properly issued summons. The summons, however, contained an error stating that Appellee had twenty (20) days from the date of service to answer the complaint. Rule 12(a) of the Arkansas Rules of Civil Procedure allows foreign corporations thirty (30) days to answer. Appellee filed an answer on March 26, 2007, within the 20-day period, and pointed out that the summons' statement of a 20-day period violated Ark. R. Civ. P. 12(a). Appellee's answer also addressed the allegations made in the complaint. Appellant did not serve a corrected summons on Appellee within 120 days of the filing of the complaint as required by Ark. R. Civ. P. 4(i), nor did he file any motion to extend within that period.

On July 13, 2007, Appellee filed a motion to dismiss with prejudice for lack of jurisdiction. The circuit court held a hearing on April 9, 2008, and granted Appellee's motion to dismiss. Because the 120-day period for service of summons had expired without an extension, the circuit court concluded that it lacked jurisdiction to amend the defective summons. In addition, as this was the second dismissal, the circuit court dismissed Appellant's complaint with prejudice pursuant to Ark. R. Civ. P. 41. Appellant filed a timely notice of appeal on May 9, 2008.

The sole issue on appeal is whether the incorrect statement in the summons as to the deadline for filing an answer constitutes a sufficient defect to invalidate the service of process and deprive the circuit court of jurisdiction. We have jurisdiction over the case pursuant to Ark. Sup.Ct. R. 1-2(b)(5) because the appeal involves significant issues needing clarification or development of the law, or overruling of precedent.

It is undisputed that the only defect in the summons was the statement that Appellee had 20 days instead of 30 days to file an answer. Ark. R. Civ. P. 4(b) mandates the form of the summons:

(b) Form. 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.

Ark. R. Civ. P. 4(b) (2008). According to Ark. R. Civ. P. 12(a)(1), "A defendant shall file his or her answer within 20 days after the service of summons and complaint upon him or her, except that: (A) a defendant not residing in this state shall file an answer within 30 days after service. . . ." Ark. R. Civ. P. 12(a)(1) (2008).

Appellant argues that strict compliance with Rule 4(b) should not be applied to this case because it is preferable to decide cases on the merits and, in this case, Appellee did not suffer any prejudice. Appellee, on other hand, responds that the technical requirements of Rule 4 must be met exactly in order for process and service of process to be valid.

Our case law is well-settled that statutory service requirements, being in derogation of common-law rights, must be strictly construed and compliance with them must be exact. Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003). This court has held that the same reasoning applies to service requirements imposed by court rules. Id. More particularly, the technical requirements of a summons set out in Ark. R. Civ. P. 4(b) must be construed strictly and compliance with those requirements must be exact. Id. Actual knowledge of a proceeding does not validate defective process. Carruth v. Design Interiors, Inc., 324 Ark. 373, 921 S.W.2d 944 (1996). The reason for this rule is that service of valid process is necessary to give a court jurisdiction over a defendant. Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., supra; Posey v. St. Bernard's Healthcare, Inc., 365 Ark. 154, 226 S.W.3d 757 (2006).

We have made it clear in a long line of cases that compliance with Rule 4(b) must be exact. See Brennan v. Wadlow, 372 Ark. 50, 270 S.W.3d 831 (2008); Posey v. St. Bernard's Healthcare, Inc., supra; Shotzman v. Berumen III, M.D., 363 Ark. 215, 213 S.W.3d 13 (2005); Tobacco Superstore, Inc. v. Darrough, 362 Ark. 103, 207 S.W.3d 511 (2005); Nucor Corp. v. Kilman, 358 Ark. 107, 186 S.W.3d 720 (2004); Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., supra. The 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.

With regard to the instant appeal, our court's decision in Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., supra, is particularly instructive. In that case, the defendant's designated agents for service of process were properly served, but the summonses did not identify the defendants correctly, and the summonses misstated the time in which an out-of-state defendant is required to respond. The circuit court dismissed Smith's complaint with prejudice based on the deficiencies in the summonses. Id. Because the service requirements imposed by the court rules must be strictly construed and compliance with them must be exact, we concluded that the circuit court had properly dismissed Smith's complaint for failure of service of valid process under Rule 12(b). Id. Likewise, in the instant case, the summons misstated the time in which an out-of-state defendant is required to respond. Thus, the circuit court properly applied the above-cited case law and dismissed Appellant's complaint based...