*1
Linda J. EARLS and Earls, Appellants
L.
HARVEST CREDIT MANAGEMENT
VI-B, LLC, Appellee
No. CV-14-456
Supreme Court of Arkansas.
Opinion April Delivered
Rehearing Denied June
Crawley,
PLLC,
& Hargis,
DeLoache
by:
Jonesbro;
G. Hargis,
Joel
and The
Firm, PLC,
Cruz,
Law
by: Kathy
Cruz
A.
appellants.
*2
Buchan, P.L.L.C.,
the
must
by:
complaint,
that
answer
&
Travis
stated
Hosto
filed,
“within
TWENTY DAYS from
Saputo,
appellee.
and Brien
for
Gray
A.
summons;
day you
the
were served
Mitchell, Williams, Selig, Gates & Wood-
(30) days
you
if
are a
OR THIRTY
non-
Rock,
P.L.L.C.,
by:
Little
R.T.
yard,
a person
resident
this state or
incarcer-
A. Pipkin,
III
Brian
amicus
Beard
and
any jail, penitentiary,
ated in
or other
Citibank, N.A.
curiae for
(emphа-
facility
correctional
this state”
Rowlett,
Boone, P.A.,
Munson,
Moore &
added). According to Arkansas Rule
sis
Cullen,
Rock;
Little
and
E.
by: Sarah
12(a) in
at the
Civil Procedure
effect
time
LLP,
Shohl,
Alan
by:
&
H.
Dinsmore
filed,
the
that
stated
an
Abes,
for
OCR
curiae
Unifund
amicus
days to
twenty
in-state defendant had
an-
Partners.
and
an
swer
that
out-of-state defendant
answer,
thirty days
had
but the sum-
HANNAH,
Justice
JIM
Chief
incorrectly
stated that an incarcerat-
(“Linda”)1
| tAppellant
J.
Linda
Earls
thirty days,
ed defendant had
instead of
County
the Greene
an order of
appeals
sixty days,
an
to file
answer.
Earlses
denying Linda’s motion to
Court
Circuit
not
were
incarcerated. The Earlses did
ap-
judgment
default
in favor of
set aside
complaint.
answer Harvest’s
On
VI-B,
Management
Harvest Credit
pellee
13, 2007,
March
the circuit court
entered
(“Harvest”).
reversal,
аr-
For
Linda
LLC
default
in favor of Harvest
judgment
grant-
court erred in
gues that the circuit
$4678.21,
prejudgment
amount
interest
judgment
default
because Harvest’s
$500,
$2980.73, attorney’s
fees
Ar-
Pursuant
summons was defective.
fees
court
of $240.
2(b)(1)
Supreme
kansas
Court
1—
case,
(2014),
jurisdiction
we have
of this
14, 2012,
On December
Linda filed a
im-
involves an issue of first
appeal
motion to
judgment,
set aside
default
reverse.
pression. We
arguing
was
that
de
(“the Earlses”)
Tony
L. Earls
fective on
face and
not strictly
Linda
its
did
card,
comply
credit
and Harvest
with Rule 4 of
Arkansas
received Chase
Rules
|2the assignee of the credit-card account. of Civil
because of the
Procedure
incorrect
charges
response
The Earlses made numerous
time related
incarcerated de
card,
leaving
outstanding
an
balance of
fendаnts. She also asserted that
de
judgment
When the Earlses’ account
fault
was void and unenforcea
$4678.21.
due,
placed
of her
past
support
position,
mained
Harvest
demands
ble.
Linda
unpaid.
the account went
relied on
payment,
unreported
but
federal district
30, 2006,
filed a com-
court
August
On
Harvest
held
sum
^decision
mons,
judgment against
which
the one in
plaint seeking a
was identical to
$4678.21,
pre-
'present
Earlses
the amount
was defective. See Charko
Res.,
$2448.56, and attor-
judgment
Energy Explorations,
interest of
ma
LLC v. JB
LLC,
09-02118,
No.
ney’s fees. On November
Earls v. Harvest Credit Ark. LLC, ceptance, App. 2011 Ark. 2011 Earls, App. WL 1856733. In the (reversing the circuit WL court’s held that the summons appeals court of refusal to the judgment set aside default was defective because it stated that an the code zip because circuit court’s was only thirty defendant had incarcerated incorrect), proposition for the that Rule 4 days the correct respond to instead of requires compliance substantial and that sixty days, though the error did not even any incorrect superflu- information that is apply to the Earlses. will not the ous render summons deficient. 23, 2014, filed a On Harvest Harvest also on this ruling relies court’s petition petition, for review. its Har Kilman, Corporation Nucor 358 Ark. appeals’ the court argued vest of hold (2004), in which this with the plain language conflicted court held that the issue summons at was which, claimed, Harvest does not Nucor, fatally not defective' because the expressly a to list the issue, party identified in every potential correct summons; no defendant. Harvest maintained that Rule way pen- failed apprise to Nucor of only that a requires lawsuit; dency of the and that a literal time within which actual defendant is application adhеring compli- to strict Citibank, required respond. N.A. to and 4(b) would ance Rule lead to an absurd Unifund Partners filed amicus curiae OCR result. support argument. briefs Harvest’s accepted petition This court Harvest’s for appeal whether issue is petition review. we grant When for error, does which not review, appeal though we consider the as it defendant, or actual defendants originally had bеen filed in this court. Bo Our renders the summons defective. Robinson, hannon v. denying standard of review an order S.W.3d 585. judgment motion to set aside default de pends grounds upon ap on the which the appeal, argues
On
Linda
that the circuit
judgment
claims the default
should
pellant
entering
judgment
erred in
a default
Kuettel,
|4in
be set aside. Steward v.
refusing
to set
aside
Ark.
reviewed strictly compliance 1206500. with those WL Billings, quirements must exact. Actual be the form of summons- governs proceeding does vali- knowledge follows: provides es process. date The reason for defective (b) Form. The summons shall be process this rule is that service of valid styled in the name of the court and shall jurisdiction necessary give a cоurt clerk; signed be dated over a defendant. court; seal contain the under the in a long made it clear line [fiWe parties; of the be directed names compliance with Rule cases that defendant; the name and státe address bright must be exact. The line stan- attorney, other- plaintiffs any, if *4 permits cer- compliance dard strict plaintiff; wise the address of the law; whereas, tainty a . substan- within which these rules time compliance tial would lead to standard appear, pleading, a file n analysis an ad order hoc in each case in notify and shall him that in defend the due-process determine whether so, by his to do judgment case of failure requirements Arkansas and U.S. may against be him for entered Constitutions been met. complaint. the relief demanded in the Partners, Working Trusclair v. McGowan (2014) (emphasis Ark. R. P. add- Civ. 3-4, 2009 430 Ark. 306 S.W.3d ed). adopted This court “Official Form added) (citations omitted). (emphasis Summons,” on and it standard, applying strict-compliance July became effective on 2001. See In this court has held a summons that re Amend. 80: Amend- Implementation of days incorrect P., provides an number with- App’x to Rules ments Civ. (2001) curiam) in which file the defendant must an answer (per (mandating 606 after service of dеfective specific language appear juris- and will deprive circuit court of parties’ regarding defending filing Patsy diction over a defendant. See Sim- responsive pleading). P’ship, Ark. Ltd. law in Arkansas is well settled (summons incorrectly S.W.3d 257 inform- necessary process service valid defendant, partnership, a domestic give jurisdiction over a court a defendant. thirty twenty that it instead days, had Finch, Patsy P’ship Simmons Ltd. answer); Trusclair, days, to 257; Sidney Ark. 370 S.W.3d Smith v. (summons incorrectly noti- S.W.3d Buick, Co., Pontiac, GMC Moncrief defendant, fying foreign corporation, (2003). This twenty days, thirty that it' had instead of court explained require has its service answer). days, to ments as follows: mind, precedent this we With case law
Our is well settled that statu- Here, present turn to the case. Harvest’s tory requirements, being service in der- in pertinent part that the summоns stated ogation rights, of common-law must be answer strictly construed with compliance (20)
them must exact. This court must be filed within has TWENTY DAYS reasoning applies day you held that the same from were served summons; imposed requirements days service OR THIRTY if particularly, you rules. More the technical of this or a are non-resident requirements jail, out person peni- of a summons set incarcerated in 4(b). tentiаry, facility compliance, required by or other correctional Ac- cordingly, this state. reverse the we circuit court’s grant judgment of default in favor of Har- noted, previously As vest and its denial Linda’s set motion to incorrectly stated that an incarcerated de- judgment aside default the basis thirty days, sixty fendant had instead upon service Earlses was proper. R. days, to file an answer. See Ark. Civ. 12(a). P. remanded; Reversed and ap- court of
Here, the circuit court stated in its or- peals vacated. opinion upon service der that the Earlses However, the
proper. language Special joins Justice James Arnold direct- requiring that the summons be opinion. defendant,” ed to “the or in this Hart, J., concurs. Earlses, conjunction must be read in 12(a), |7provides varying Goodson, JJ., Baker and dissеnt. in-state, out-of-state, times for and incarcerated defendants. Given that Wood, J., participating. govern Rule 12 Rule 4 and summonses Hart, Justice, Josephine Linker therein, ig- times we cannot *5 concurring. nore case law that that a sum- our states not sub- comply exactly
mons must
and
separately
long
write
because I have
[J
with
stantially
requirements
the
Rule
application
believed that the best
of Rule
4(b).3
Patsy
P’ship,
See
Simmons Ltd.
of the Arkansas Rules of Civil Procedure
451,
Thus,
2010 Ark.
Arkansas Civil cases content of prior relating to the Therefore, majori- I must from the dissent Patsy valid service of summons. Sim- summons at issue ty’s conclusion Finch, Partnership Ltd. this court mons 1pdefective present case was because in the stating held that a summons in- has failed to adhere to the thirty | indays, defendant had rather 4. language days, twenty than was deficient and de- circuit prived jurisdiction. court of rules of construction nor rules Neither 370 S.W.3d 261. defeat interpretаtion may be used to Trusclair, Patsy relied on Sim- meaning provi- certain of a rule clear and court, State, this court held that sum- 269 mons Solis v. sion. stating that defen- an out-of-state (citing Sturdivant twenty days, thirty had rather than Sturdivant, dant *6 (2006)). respond was defi- 740, Further, days, complaint, to to a sendee S.W.3d ju- deprived cient and the circuit court imposed by court requirements rules 203, Trusclair, 5, 2009 Ark. at strictly compliance risdiction. “must be construed instances, at 431. 306 S.W.3d In both this requirements those must be exact.” statutory require- held that service Pon- (citing Sidney Id. Smith Moncrief Buick, Co., 701, strictly ments must be construed and com- tiac, 353 Ark. GMC therefore, (2003)). exact; pliance must be we con- 120 S.W.3d respective cluded that circuit courts 4, as it when appeared Harvest underlying properly dismissed the com- complaint, requires filed its that sum- deficiency basеd on the of the sum- plaints “the within which mons include times these 4(b). Simmons, Patsy under Rule to require appear, rules defendant file 5-6, 261; 2010 Ark. at 370 S.W.3d at notify pleading, defend and shall him Trusclair, at 306 S.W.3d so, his judg- that in case of failure to do at 431. against may ment be entered case, present him for the relief in the com- In the Harvest demanded contends 4(b) (2007); Ark. R. P. plaint.” Civ. see that its summons was not deficient because plain language In Re Rules Proce- does not also Arkansas Civil (2006) dure, App’x cu- correct (per a summons to list the re- riam) defendant, (adopting every amendments to Rule ef- time for class of sponse 25, 2006). only parties requires fective do not but that a summons that, which dispute at the time the summons time within the defendant must re- ferring contends that to defendants. In spond. plain English, Harvest an error in is not when there is deficient “the” is a definite article that points that is not re- superfluous language (1) object definite that is so well under- included under Rule 4. Har- quired to be (2) description; stood that it does need court’s, opinion that vest maintains this described; a thing is about to is ór Kilman, Corporation Nucor (3) important. The Chicago Manual of persuasive (16th ed.2010). contrast, Style R. 5.69 In Nucor, In present circumstances. “a” is an article indefinite used to refer to court determined that a summons was not nonspecific objects, things, persons or defective when it listed the defendant cor- distinguished are not from mem- the other rectly incorrectly but listed other defen- of a Chicago bers class. The Manual at 729. dants. 358 Ark. 186 S.W.3d (16th ed.2010). Style R. Accordingly, 5.70 rejected In that this court a “literal application a strict of Rule 4 requires that appliсation” of that would lead to state the consequences.” “absurd Id. served, specific defendant Rule 4 states the summons “shall whereas Rule sets out the ... ... contain the time within which times all classes of defendants.1 ^require these rules to file defendant | ^Moreover, interpretation recon ...” pleading, and defend Ark. R. Civ. P. Trusclair, Simmons, Patsy ciles and Nu added). In contrast (emphasis Patsy cor. In both Trusclair and Sim 4(b)’s “the,” use the article Arkan- mons, specific the defect related to the sas pro- Rule of Procedure Civil Nucor, however, defendants served. for filing vides the time an answer to a specific the defect did not relate to the states, complaint, “A shall file defendant Instead, defendant served. defect in ...” his or her answer Ark. R. Civ. P. par volved the misidentification of another 12(a)(1) added). (emphasis While ma- ty. Read these cases im together, three jority affirms these two rules must be that the plicitly recognize requirements of “in conjunction,” read fails to Rule 4 specific defendant the textual acknowledge difference be- served, within tween the two. The two use rules two not. articles, “a,” . possible different “the” versus the entire class of defendants. contexts, article, varying jurisdictiоns ly 1. other ac assume that the use of the indefinite *7 article, knowledge legal opposed that use of a- rather than as definite definite to the has Madsen, significance.”); meaning. indefinite article is an of Am. v. indication BP Prod. Co. 1088, Dep’t (”[I]n Ecology City Spokane Valley, (Wyo.2002) v. 167 53 P.3d 1092 con of of 367, (2012); statutes, Wash.App. struing 275 P.3d 373 the definite 'the' is a article Corp. Corp., opposed v. Toshiba 305-SLC, Imation No. 09-CV- wоrd of indefinite limitation to the (W.D.Wis. ”); generalizing WL 2013 at 15 or force of ‘a’ or In re 'an.' 26, 2013) Inc., supplemented by, Freight Sys., Mar. No. 09-CV- Am. 185 352 B.R. 305-SLC, (Bankr.D.Kan.1995) (W.D.Wis. Apr. (finding WL 2013 7157854 that use of 5, 2013) (discussing thing impact appropriate only of the indefi "the” re is when the "an” previously nite article article ferred versus definite to has been identified claim); City criticizing “the” when used that an in Robinson constructions substitute "an,” Lansing, 486 Mich. 782 N.W.2d 186 definite article word like rather thаn or of J., ("[T]he "the”); (Young, concurring) Legisla the definite article States v. United Hudson, (W.D.Ark.1894) (" ture's varied use of definite indefinite 'The' versus 65 F. nouns, requires specify articles in a statute those articles is the word before with a used effect, ing grammatically particularizing opposed their to the accorded correct or meanings.”); Or.App. Rodriguez, generalizing State v. indefinite force of ‘a’ or or ”). (2007) (”[W]e ordinari 'an.' P.3d Moreover, majority’s required by prec- under Rules and our disagree with I Therefore, Nucor Harvest’s reliance on edents. dissent. I. assertion the summons at issue is because misplaced GOODSON, an riot contain erroneous joins “did J. this dissent. Nucor provisions of the Rule of
statement 12(a).”
4(b) recognized in As this court or
Nucor, requires that the sum- Rule of parties.” the names
mons “contain 729; 123, 186 S.W.3d at see 4(b) (“The R. P.R. Ark. Civ.
also par- the names of the
shall ... contain ties.”). App. Thus, that the summons сontain parties provision is a names of the Raymond EDWARDS and Patricia 4(b), although provision not a Edwards, Appellants 12(a). fact the sum- Despite the contained error as to mons Nucor DEPARTMENT ARKANSAS OF parties, of the we refused the name one SERVICES, HUMAN adopt interpretation” a “literal 4(b)’s Appellee require a list- provisions that would every every defendant plaintiff No. CV-14-939 summons, many every on no matter how parties Arkansas, plaintiffs defendants are Appeals Court acknowledge that Nucor case. While I DIVISION I. directly present with the point not April Opinion Delivered facts, it involved the names 113as parties times for not defendants, I dis- categories
various cir-
agree majority’s attempt by case holding stating
cumvent the of that parties
that the names of the are 4(b).
provision of Rule short, use of the definite article
“the” before means that the defendant
quirements specific to the by the summons and identified pertain that defen-
errors do defective.
dant do not render the summons conflating Rules errs and'requiring
and Rule 12 that a summons *8 resporise time for
must the correct listed, regard-
all categories of defendants
less of whether the time for the stated. summoned is
Instead, should confine its
analysis reviewing whether the sum- properly states the served,
the defendant all