609 S.W.3d 1
Ark. Ct. App.2020Background
- Motor-vehicle collision on August 22, 2015; Scott and Jamie White filed suit against Hunter Owen on July 9, 2018.
- Owen filed an answer (Aug. 17, 2018) before being served, asserting defenses including insufficiency of process/service.
- Circuit court granted the Whites an extension to serve Owen until February 19, 2019; the Whites attempted substituted service at Owen’s mother’s house on February 15, 2019.
- Process server’s affidavit says Owen’s mother accepted the papers; Owen and his mother swore he did not live there (he moved out Nov. 2017) and that his actual residence was 3802 Kavanaugh Blvd., Apartment 702; Owen had earlier provided that address in discovery (Sept. 2018).
- Circuit court dismissed the Whites’ complaint with prejudice on July 8, 2019; the Whites appealed and later filed a Rule 60 motion raising Rule 4(k) substantial-compliance, but the court never ruled on it.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Which version of Rule 4 applies (old rule or 2019 revision)? | Whites: 2019 revision applies because service occurred after the amendment. | Owen: Old rule governs because complaint filed before amendment; applying new rule would be retroactive. | 2019 revised Rule 4 applies because service occurred after the amendment went into effect. |
| Was substituted service proper under Rule 4(f)(1)(B) by leaving process with Owen's mother? | Whites: Yes — voter registration and other records showed the Windridge address; mother accepted service. | Owen: No — he had not lived there since Nov. 2017, did not receive mail there, and had informed Whites of his Little Rock address in discovery. | Service at the mother’s house was not proper; Whites had actual knowledge of Owen’s other address and made no attempt to serve him there. |
| Does Rule 4(k) (substantial-compliance/actual notice) cure any service defect? | Whites: Even if service was deficient, Rule 4(k) requires disregarding errors where defendant had actual notice and filed a timely answer. | Owen: Not directly addressed on appeal because procedural default. | Not reached on the merits — Whites failed to preserve the issue because their Rule 60 motion raising Rule 4(k) was not ruled on and thus is not preserved for appeal. |
| Are the Whites entitled to the savings statute if service was defective? | Whites: Yes — defective service commenced the action and entitles them to the savings statute grace period. | Owen: No — Whites knew the correct address and did not attempt service there, so no good-faith effort; savings statute unavailable. | Court denied savings-statute relief — no good-faith attempt to serve at the address Owen provided in discovery, so Whites are not entitled to the savings statute. |
Key Cases Cited
- State Office of Child Support Enforcement v. Mitchell, 330 Ark. 338 (overruled interpretation of "dwelling house or usual place of abode")
- Leathers v. Warmack, 341 Ark. 609 (distinguishing domicile from multiple residences)
- Blittersdorf v. Eikenberry, 964 P.2d 413 (Wyo. 1998) (service at a spouse’s home upheld where multiple indicia showed residency)
- Sheldon v. Fettig, 919 P.2d 1209 (Wash. 1996) (service upheld where parent’s home served as a center of defendant’s domestic activity)
- Clouse v. Tu, 274 S.W.3d 344 (Ark. Ct. App.) (defective but timely service can commence action for savings statute)
- Eliasnik v. Y & S Pine Bluff, LLC, 546 S.W.3d 497 (Ark. Ct. App.) (no savings-statute relief where plaintiff knew correct address and did not attempt service there)
- Thomas v. Robinson, 596 S.W.3d 531 (Ark. Ct. App.) (service of process necessary for jurisdiction)
- May v. Goodman, 2013 Ark. 82 (applying amended court rule in "straddle" situations to avoid procedural traps)