Tuccillo v. Adkins & Assocs., Inc.
2019 Ark. App. 55
| Ark. Ct. App. | 2019Background
- Adkins & Associates (Arkansas poultry broker) sold frozen chicken to Anchor Frozen Foods (New York company) starting 2009. Roy Tuccillo was Anchor's president and majority shareholder.
- Anchor ordered 60,000 pounds in March 2012 for $100,800; Adkins shipped, Anchor disputed weight and refused payment.
- Adkins required completion of a Customer Profile Form to extend credit; Anchor returned the form signed by Tuccillo as "President," which included a personal guaranty provision naming Roy Tuccillo as guarantor.
- Adkins sued after collection attempts failed; the Pope County Circuit Court found Tuccillo personally liable for $100,800 plus interest and attorney’s fees.
- Tuccillo appealed, arguing (1) defective service because the summons ultimately served bore a later date than the original summons issued at filing, and (2) he did not personally guarantee Anchor’s debts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper issuance/service of summons under Ark. R. Civ. P. 4(a) | Clerk issued summons "forthwith" on filing; later duplicate was acceptable and service was timely with court-granted extensions | Service defective because the summons actually served bore a date 719 days after complaint filing, violating the "forthwith" issuance requirement | Clerk issued a summons on filing which satisfies Rule 4(a); Rule 4(a) requires issuance "forthwith" but not immediate service; court affirmed validity of service and extensions allowed service delay |
| Enforceability of personal guaranty signed by Tuccillo | The Customer Profile expressly named Anchor as purchaser and listed Tuccillo as guarantor; his signature authentic — guaranty binds him personally | The form's language ("undersigned" and "if the purchaser is not an individual...") means the guaranty clause does not apply to him as an individual signatory | Court found signature authentic and the document unambiguous: Tuccillo signed as President of Anchor and personally guaranteed Anchor's obligations; judgment affirmed |
Key Cases Cited
- Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525 (Ark. 2003) (service requirements under Rule 4 must be strictly construed)
- Vinson v. Ritter, 86 Ark. App. 207, 167 S.W.3d 162 (Ark. Ct. App. 2004) (strict construction of Rule 4 service requirements)
- Wilkins v. Food Plus, Inc., 99 Ark. App. 64, 257 S.W.3d 107 (Ark. Ct. App. 2007) (Rule 4(b)'s technical summons requirements must be strictly construed)
- Tobacco Superstore, Inc. v. Darrough, 362 Ark. 103, 207 S.W.3d 511 (Ark. 2005) (precedent on strict compliance with summons rules)
- Sysco Food Servs. v. Coleman, 227 Ga. App. 460, 489 S.E.2d 568 (Ga. Ct. App. 1997) (distinguishable: unenforceable guaranty where key debtor and guarantor names were blank)
- Peregrine Trading, LLC v. Rowe, 2018 Ark. App. 176, 546 S.W.3d 518 (Ark. Ct. App. 2018) (standard of review for factual findings: clearly erroneous test)