*1
NUCOR CORPORATION
Systems Contracting Corporation
Evans,
KILMAN,
Mike
Evans
Marty
Betty
03-864
Supreme 17,2004 delivered Opinion June denied [Rehearing September 9,2004.*] * Dickey, C.J., Thornton,J., grant would rehearing. *7 Coulter, Firm, D. for Rose Tim Boe and appellant, Law by: John
Nucor Corp. P.A., Carroll, Ian for W. appellant & by: Vickery, Vickery Contracting Corp. Systems for Kilman. Biscoe Marty Bingham, appellee
John P.A., T. Associates, Holleman IV Stacy Holleman & by: John Fletcher, Evans. D. Mike and for Betty appellees (Nucor) Appellant Corporation Hannah, Ju to a default ce.ce. its motion set aside denying sti sti Jim Kilman, Evans, of Mike entered in favor Marty appellees $5,390,500.1 Evans in amount of Betty appellant Separate an order denying Contracting Corporation (Systems) appeals Systems The motion and motion to set aside default its to intervene judgment. court of certified this case to this court because it found appeals of and the of. this case an issue first presents impression interpretation rule; thus, to Ark. Ct. R. l-2(d) our jurisdiction pursuant Sup. (2003).
Facts 4, 200!, Evans, On Kilman and of Systems, employees April lift to install at Nucor’s were while scissor injured using pipe Hickman, work- Arkansas. Systems facility Subsequently, paid to Kilman and At the time ers’ benefits both Evans. compensation accident, had a contract with Nucor of Systems provide various to Nucor as an contractor. labor services independent an contract contains indemnification whereby Systems provision, damages Kilman was in the of $2,390,500, awarded amount Marty Specifically, damages Evans, in the million. wife, Mike Evans was awarded amount Evans’s Betty $2.95 in the convenience, in the amount of For we refer to Evans damages $50,000. was awarded singular. harmless from claims and hold indemnify relating agrees to disease, sickness, caused in or in or death whole bodily injury, negligence Systems. part IV, letters from T. Holleman received three Systems John 16, 2001, letter, for the The first dated
attorney appellees. April Hall, faxed to President Human Resources & was Melinda Vice letter, Risk In that Holleman Management Systems. requested information had conducted in any investigation regarding Systems 7, 2001, Pfiefer, relation to the accident. On Paul an April May firm, with faxed a to Hall Holleman’s letter attorney requesting letter, 18, 2001, same information. In the third faxed on May Holleman stated that he would file a Rule 27 pursuant petition if Arkansas Rules of Civil Procedure failed to Systems 21, 2001. In each of the letters sent to respond by May Systems, assert a attorneys Systems appellees’ acknowledged might workers’ lien and noted that in order such to assert compensation *8 lien, a to was us in Systems with our “required cooperate pursuit letters, claim.” After the Hall contacted coun- receiving Systems’s sel. Holleman informed Hall he that would file Rule Although 27 if failed to he petition instead filed Systems respond May by a Rule Court, on in Union Circuit petition May County to certain seeking depose employees Systems.2 At the time same Holleman was the Rule 27 matter pursuing he on the case against Systems, Nucor. In began working against Nucor, the course of to file claims Holleman was preparing against Coleman, referred to Robert L. and Holle- Blytheville attorney man contacted Coleman for assistance on the aAfter brief claims. appellees’ discussion, Coleman informed Holleman that he was Nucor’s retained counsel and thus be would unable to assist Holleman in case the Nucor. Coleman claims that before against ended, the conversation he asked to Holleman send him a courtesy suit filed so copy Coleman could make sure any that a defense was entered for Nucor. Holleman,
After with Coleman sent a letter on speaking Nucor’s behalf to counsel for counsel for Systems Systems’s 2 The Rule granted was 10, 2001. five petition July Subsequently, Systems were The later filed a seeking motion to employees deposed. appellees compel, April accident as photographs. as well certain The trial court found that did not report, Systems investigative have in its Nucor. the trial court Further, possession any report prepared by photographs found had and that Systems already provided by requested appellees, it would not again to them to the Systems provide compel appellees. carrier,
insurance them of the call from Holleman informing letter, suit Nucor. In the Coleman regarding against potential stated that he that Kilman and Evans would file a suit anticipated demand Nucor. The letter also served as against upon Systems fulfill its contractual Nucor in the event obligation indemnify that Nucor’s insurance failed to Nu- provide coverage. provider controller, DiGirolamo, received cor’s Mark of the letter copy from Coleman to Systems. Nucor, Warren,
The filed suit Roderick against appellees Doe, in White Circuit Court on individually, County John 27, 2001, November in connection with the alleging negligence Ellis, 4 accident. A summons was issued and Pat April White signed Clerk, Barker, for Alice Clerk. The sum- County Deputy identified the mons defendants in the matter as “Nucor Corpora- tion, Et Al.” The summons did not contain the names of defen- dants Warren and Doe. Process server Kevin Lewis served the summons on The Nucor’s Corporation Company, designated Rock, for service of in Little Arkansas. agent process, appel- lees did not had filed suit Nucor. notify Systems they against 3, 2001,
On December DiGirolamo received an electronic mail transmission from Nucor’s home office in North Carolina. Summons, The transmission included the “Plaintiffs Complaint, Admissions,” First and “Plaintiffs First Set of Inter- Request for Production of Documents to Defen- rogatories Requests dant, Nucor Corporation.” their dismissed Subsequent filing complaint, appellees defendants Warren and Doe from as leaving and, sole defendant. Nucor failed to answer the as a result, the filed a motion for default The trial appellees judgment. *9 and, 19, 2002, court held on the motion hearing April default was entered Nucor in the amount judgment of against $5,390,500. 23, 2002,
Nucor learned on December judgment when its bank received a writ of and contacted garnishment 13, 2003, counsel Nucor. On Nucor filed a motion to January set aside default and motion to dismiss. Nucor informed judgment 28, of the default and on Systems judgment, January Systems filed a motion to intervene and set aside default judgment. trial court denied all motions. reversal,
For Nucor that the trial court erred in argues that the default was not void due to insuffi- concluding judgment of service of Nucor ciency insufficiency process process. also that the trial court erred in argues to set aside the default failing to Rule of the judgment 55(c) Arkansas Rules of Civil pursuant Further, Procedure. Nucor contends that the trial court erred in set aside the default due to the misconduct refusing judgment counsel. Nucor claims that the appellees’ trial court Additionally, erred in its motion to set aside because the denying fails to state facts which relief can be upon granted. Finally, claims that the default in favor of Evans should be judgment set aside because the White Circuit Court was not the County proper venue for Evans’s claim. the trial Systems court’s denial of appeals its motion to intervene, that the trial court erred in arguing its motion denying because had an Systems unconditional to notice of the right lawsuit and an appellees’ the action opportunity join pursuant to Arkansas Code Annotated ll-9-410(a)(l)(A) 2002), (Repl. § and Rule 24 of the Arkansas Rules of Civil Procedure. Systems also contends that the trial court erred in its motion to set denying aside default because judgment was unable to Systems intervene in the lawsuit to its protect rights.
Standard Review
We have stated that we review a trial court’s granting
or denial of a motion to set aside default
for abuse of
judgment
discretion. Smith v.
Pontiac,
Co.,
Buick,
Sidney
GMC
Moncrief
Smith,
S.W.3d 525
(2003);
Tharp
(1) inadvertence, or excusable surprise, neglect; void; (2) the fraud,
(3) or misrepresentation, other misconduct of an adverse or
party; (4) other any reason relief justifying from the operation judgment.
Ark. R. Civ. P. 55(c) (2003). this court to urges reexamine its standard of review of
default judgments this court should review claims that a is void under without deference 55(c)(2) any *10 this court should asserts that apply trial court. Nucor
to the to issues in default only of discretion standard judgments abuse states that while (4). 55(c)(1), (3), under Rules arising the trial element of all involve some (4) (c)(1), (3), sections discretion, does not. or section (c)(2) court’s judgment an of law is void is issue whether a contends that judgment and, such, court as the trial no rulings by involving discretionary a de be reviewed under novo is void should claims that judgment standard. Note, Amend
The Addition Reporter’s amended Rule 55(c) standard in ment provides “[t]he Federal Rule of Civil Proce a default is taken from aside setting default is made in the judgment dure which 60(b), applicable be in Federal should 55(c), context interpreted by Federal Rule of Civil Proce federal case law.” accordance with In to Ark. R. Civ. P. 55(c)(2). looking dure is 60(b)(4) analogous law, circuit that a of the federal federal case we find majority (cid:127) a decision under Rule that because courts have recognized discretion, the standard is not involve the exercise of does 60(b)(4) S.A., Alliances, 191 F. review. See Vintenv. Marine de novo Jeantot 2002). 2d 649-50 nn. 12-13 (D.S.C. Supp. Herbert, In VermontPublic Service Central Corp. 186, 189 Court of Cir. Second Circuit (2d 2003), Appeals F.3d review a deferential standard of Rule 60(b)(4) stated “[u]nder void, it is because if the is is not underlying judgment appropriate a district court to a movant’s se abuse of discretion for deny per under Rule Recre 60(b)(4).” motion to vacate the judgment 804 F.2d ational Inc. v. Southwest Serv. Corp., Mortgage Props., Cir. the Fifth Circuit Court (5th 1986), Appeals explained on a 60(b)(4) that the district court has no discretion ruling either void or it is not.” because “the is motion judgment that whether with Nucor’s judg We argument agree no are void is a of law involving discretionary ments question in caseswhere the the trial court. Accordingly, appellant rulings void, we will review a trial court’s that the claims set aside default or denial of a motion to judgment using granting under sections In cases where an issue arises a de novo standard. the trial we will continue to review or of Rule (3), (4) (c)(1), to set aside default or denial of a motion court’s granting for abuse of discretion.
119 Rule 55(c)(2) Nucor’s on addressing appeal. We begin by points the default was void under Ark. R. Nucor contends that due to of service of Civ. P. 55(c)(2) insufficiency process we of noted: insufficiency Moncrief, supra, process. valid is necessary
Arkansaslaw
settled that service of
long
process
to
a defendant.
v.
jurisdiction
Raymond,
court
over
give
Raymond
480, 36
(2001)
Johnson,
343 Ark.
S.W.3d 733
Tuckerv.
275
(citing
61,
Ark.
S.W.2d 281
Our case
well-
(1982)).
law is equally
settled that
service
of
statutory
requirements, being
derogation
rights,
common-law
must be
construed and
strictly
compliance
Id.;
Inc.,
Interiors,
be
with them must
exact.
Carruth v.
Design
Nucor first that the service of summons was not because the server not to was authorized serve in proper process Pulaski a summons issued White Circuit by County County Court. Evans contends that Nucor has its waived to Appellee right to the of service because it failed object to raise that defense process in its first After notice of the writs of responsive pleading. receiving bank, served its filed a motion to strike garnishment motion, writs of In that Nucor did raise the not garnishment. defense of of Nucor first raised the defense in insufficiency process. its motion to set dismiss motion to aside default judgment, both of which filed its motion strike filing subsequent writs of Arkansas Rules of Civil garnishment. 12(h) Procedure in relevant that a defense of provides part, insufficiency is waived if it is not included in the process responsive original The is whether a issue motion strike writs of pleading. garnish- ment is an it We hold that is not. original responsive pleading. defines a
Black’s Law pleading Dictionary responsive See earlier to an pleading. opponent’s as replies pleading “[a] answer ed. An 1999). Law 1173 (7th Black’s Dictionary ANSWER.” addresses the merits first as defendant’s is defined pleading “[a] Id. at 90. usu. denying allegations.” plaintiffs not a was responsive motion to strike writs garnishment Nucor’s address the merits of case. because it did not pleading *12 case, the merits of the not to address of that motion was purpose bank ac from Nucor’s garnishing but appellees prevent its insufficient service believe Nucor has waived count. We do not reach the merits of we will accordingly, of argument; process Nucor’s argument. authorized Kevin Lewis to serve
The order which process Court, and it of the Pulaski Circuit was an order County provided, in part: Procedure, Num- of Civil Rule
Under the Rules provision and authorized this Court to by is appointed ber [Kevin Lewis] summons, writ civil more specifically,complaint serve process, and orders of the Court that are for of subpoena, garnishment, Court until further issued the Clerk of this only, by notice purposes of this Court. Order
[*] *(cid:127) *(cid:127) default Nucor’s The trial court rejected argument of of void due to service insufficiency was process server was concluded that service was because proper process in Pulaski We serve County. agree. process properly appointed of Civil Procedure of the Arkansas Rules 4(c)(2) provides: shall be made by: WhomServed.Service of summons
By lessthan (2) purpose not anyperson eighteenyears ageappointed the court in which the action is filed or summons either serving in whichthe serviceis to be made. a courtin county added). Ark. R. Civ. P. 4(c)(2) (2003) (emphasis for the In this Lewis was appointed purpose was made in Pulaski in Pulaski Service summons County. serving in Little Rock. We hold at The County Corporation Company that service was under Rule 4(c)(2). proper Next, Nucor contends that the summons was defective because it did not contain the of the White signature County Circuit Clerk. Rule of the Arkansas 4(b) Rules Civil Procedure provides:
Form. The shall be summons in the name of the court and styled clerk; court; shallbe dated and under the signed by be seal of the defendant; contain the names of be directed to the state parties; the name and address of the if otherwise the plaintiffs attorney, any, address of the and the time within which plaintiff; these rales the defendant to file a and defend and require shall appear, pleading, so, him that in the notify case of his failure to do judgment by default be entered him may against for the relief demanded in the complaint.
Nucor contends that default based on a any summons which is not the clerk is void. The signed by signature line on the summons as follows: appeared Barker,
Alice Clerk *13 By:_ Clerk
Deputy White Clerk Pat Ellis County Deputy summons. signed court, The trial Arkansas Code citing Annotated 16-55-108 § found that a (1987), sworn Clerk is properly authorized to Deputy a summons. Section sign 16-55-108 of the Arkansas Code Anno- tated provides: “Any this code a duty enjoined by ministerial upon officer, and act him, to be done any be permitted by may his that, lawful performed by Nucor contends in refer- deputy.” statute, to the the trial court ring statute, the fact that this ignores which is of the Cases, Code of Practice part in Civil has been effectively Arkansas superseded by Rules of Civil Procedure. Rule “All Supersession laws in conflict with provides: Procedure, Arkansas Rules of Civil Rules of Procedure Appellate and Rules for Inferior Courts shall be deemed as of the superseded effective dates of these rules.” Arkansas Court Rules at 789 (2003). Section 16-55-108 is Cases, Code of Practice in Civil part which Notes, was in 1869. See Publisher’s adopted Code Ann. 16-55-108. The Arkansas Rules of Civil Procedure were § 18, 1978, December and adopted became effective July Notes, 1979. SeePublisher’s Ark. R. P. Civ. 1.
Nucor
that the trial court’s
argues
interpretation
of section 16-55-108 is in conflict with Rule
because
4(b)
former
clerk to
and
permits
summons
the latter
deputy
sign
the clerk’s
explicitly
Nucor omits an
requires
signature.
important
discussion,
canon of
construction from its
statutory
which is that
this court
not
does
in
common
engage
interpretations
defy
Mills,
sense and
absurd results. See Greenv.
339 Ark.
produce
Finally, summons was defective the default void because the summons did not contain Here, the names of all the the summons listed the parties. defen- dants as “Nucor Et Al.” The Corporation, listed the Warren, defendants as “Nucor Roderick Corporation,- individu- Doe.” ally, Citing contends that Moncrief,supra, John the default in this case is void because the summons failed to with Rule 4 of the comply exactly Arkansas Rules of Civil Procedure. We issue, disagree. at Moncrief,supra, party Pontiac, Buick, Moncrief Sidney GMC was Company incorrectly identified in the case, Nucor, issue, summons. In this at party was identified summons. correctly Nucor does not contend that it was summons; rather, identified in the incorrectly contends that “other defendants” were identified. incorrectly
We are not unmindful of our decisions where we
have held that the technical
set out in
requirements
must
4(b)
be construed
with
strictly
those
compliance
must
requirements
be exact. See
Moncrief,
Potlatch
supra; Thompson
Corp.,
However,
Service of valid is to a court process necessary give over a jurisdiction 61, defendant. Tuckerv. 275 Johnson, Ark. 628 S.W.2d 281 (1982), overruledon other SouthernTransit v. grounds, Co. Collums, rules, 966 S.W.2d 906 (1998). Under our the a summons is used to a process defendant that a suit is apprise
123 heard. Id. to be him an him and afford opportunity against pending Holt, Ark. 90 Co. v. Kansas Lines Southern (citing Stage S.W.2d 473 (1936)). that the the of requirement
A literal interpretation a the of the would require names summons “contain parties” summons, on defendant and every every listing every plaintiff to the and defendants are parties no matter how many plaintiffs Nucor, the 4(b). party this Rule case. We reject interpretation did the issue, In no way identified the summons. at was correctly of the Nucor of fail to form summons apprise pendency Indeed, makes to be heard. Nucor it an suit and afford opportunity not that the summons was fatally We hold no such argument. defective.
Rule 55(c)(1),(3), (4) that the trial court erred in concluding Nucor argues mistake, not inadvert was the result that default judgment ence, first that its contends or excusable neglect. surprise, under Ark. R. Civ. P. failure to answer constituted mistake that based on the DiGiro 55(c)(1). correspondence Coleman, from he believed Cole lamo received reasonably man, care of insurer had taken already Systems, Systems’s lawsuit at the time received the suit elec DiGirolamo papers 3, 2001. Nucor fails tronic mail transmission on December What DiGirolamo, mention that in Coleman his correspondence had been with of a stated that Nucor not served notice lawsuit. Further, letters, this I do in one of Coleman stated: “At point, on am directed to not to do further this case unless I plan anything informed that Nucor had do so.” Even DiGirolamo was though suit, and that had no intention of not received notice Coleman so, he to do when DiGirolamo received unless was told proceeding he did We fail to see how
the summons and nothing. complaint, would this inaction constitutes a “mistake” which warrant setting Bone, aside default Layman judgment. we stated: (1998),
S.W.2d file be referred failureto an answer time could Presumably,any error of causedthe asa “mistake”in the sensethat an somesort hold, however, fileon To errorwhatsoever any failureto time. 12(a) with would trial shouldexcuse compliance deprive rule That is not the of the discretionto which the refers. courts intent behind rule.
Laman,
The
Nucor
contends that its failure to answer was the result
of excusable
Nucor
that
states
the facts
neglect.
surrounding
DiGirolamo’s work
life at the time he
responsibilities
personal
summons,
received the
as
as well
DiGirolamo’s understanding
Nucor,
about Coleman’s and
role in
ad-
Systems’s
defending
Nucor failed
why
to answer. In
of its
equately explain
support
that
out
when DiGirolamo
argument,
received the
points
summons
he
was understaffed and had been em-
complaint,
Nucor for
eleven'months. Nucor adds that when
ployed by
only
DiGirolamo received the summons and
he was
complaint,
dealing
with
associated with
business” and the “holi-
problems
“year-end
Further,
crunch.”
Nucor states that at the time
day
DiGirolamo
summons,
received the
he was in the midst of
a
preparing major
for a
with Nucor officers. Nucór
presentation
contends
meeting
circumstances,
that under those
combined with the
death
tragic
friend,
funeral of
son of his
clerk and
nine-year-old
payroll
it is not
that DiGirolamo did not follow on the suit.
surprising
up
that
this case is
to Hubbard
factually analogous
Inc.,
v. The Shores
The facts present case, DiGiro not that In Nucor does Hubbard case. this argue the listed on a named defendant notice that Nucor was lamo failed to the fact that he received He does not the the summons. dispute Moreover, 3, 2001. DiGi on December summons “monitor lawsuits and that of his was to rolamo stated job part and contractors with the insurance work attorneys, companies, suits.” DiGirolamo was extremely busy involved in those Clearly, trial found that time received the suit The court at the he papers. excusable We “too was not neglect. DiGirolamo’s being busy” its trial court abused discretion. cannot the say that the trial court erred in to set Nucor next argues failing the the based on the misconduct of aside default judgment appel- trial set lees’ counsel. Rule that a court aside 55(c) (3) may provides fraud, or other a default the case misrepresentation, judgment 55(c)(3) misconduct of an adverse Ark. R. Civ. P. (2003). party. set Nucor contends that the default should be aside judgment failed a the because the counsel to send courtesy appellees’ copy lawsuit to The trial court Coleman. found: Holleman’sconductin thismatter one to wonder. may
Mr. cause I do not Mr. Holleman not fully forthcoming appreciate being Still, Mr. I findan abouthisencounterwith Coleman. cannot actual Conduct, violationofthe ModelRulesof nor do find Professional I any Mr. Hollemanto Mr. Coleman or else obligation anyone his clients. except
* * * that the trial court the standard applied wrong to determine whether Holleman’s conduct aside justified setting the default in that the trial court concluded judgment, incorrectly that in for Rule must show that order 55(c)(3) apply, Holleman’s conduct violated Rules of Professional Conduct. do that We not believe trial court concluded a violation of Model Rules of Professional Conduct was threshold requirement Instead, Rule aside default under setting 55(c)(3). judgment we that the trial court used the Model as a frame of believe Rules reference for what constitute miscon- might “attorney identifying duct.” Suchor,
In Divelblissv. (1992), S.W.2d 600 we that the default rejected appellant’s argument should be due set aside s misconduct. plaintiff attorney’s argued: appellant between Ms. Shedlock claimsadjuster] correspondence [the that the appellees’[plaintiffs’]attorneysreveals were parties in a manner leastin she
working (at mind) her cooperative was reasonablein to be advisedof service. expecting Appellant submitsthat such failureto adviseMs. Shedlockthat servicehad been obtainedon Divelblissconstitutes an “misconductof adverse set sufficientto aside default under party” *17 55(c)(3).
Divelbliss, 14, at 311 Ark. at 841 S.W.2d 603.
We held that the trial court did not abuse its in discretion that the “misconduct” on the of ruling alleged the part plaintiffs was not the cause the default and noted that attorney trial “[t]he court observed that the cause the default was not sagaciously letter, Rubens’ but the instead cause was the failure of to the agent forward the summons and Id. at at 841 S.W.2d complaint.” case, 603. in this the cause the default was .Similarly, not to Holleman’s failure send the to courtesy copy complaint Coleman, but instead the cause the was failure of to DiGirolamo forward the summons and to Coleman. Nucor contends complaint that DiGirolamo’s that he believed that testimony Holleman would send of the lawsuit to Coleman courtesy copy distin- the instant case from Divelbliss. guishes Nucor states that the Divelbliss, defendant in unlike DiGirolamo in this refused an for how the conduct provide for the explanation attorney the default the party obtaining caused default judgment judgment. seeWe no such distinction. The trial court concluded that there “no was clear fraud, or misconduct Mr. misrepresentation, Holleman.” We no find abuse of discretion. that the trial court erred in
Finally, its motion to set aside default denying judgment pursuant motion, which that the 55(c)(4), trial court provides set may, upon aside a default for other reason relief judgment any from justifying of that operation contends judgment. “totality of the circumstances” aside the default justify setting judgment. of the circumstances” that the “totality court concluded The trial the default aside judgment. a reason setting did not constitute abused its this instance trial court that cannot say We discretion. a Claim
Failure to State erred in not setting that the trial court Nucor argues facts fails to state because the default complaint aside the judgment court found that by The trial relief can be which granted. upon answer, this We disagree. Nucor waived argument. failing which fails to state on a rendition of a default complaint Hubbard, error. cause of action is reversible to state a facts sufficient Inc., 584, 510 Foods, 256 Ark. v. Inc. Tyson’s Kohlenberger, supra. that, once the default contended (1974), S.W.2d appellees entered, could not raise argument was the appellant that was deficient. We rejected argument, that the complaint stating: but assertion say positive, unsupported
... we must
appellee’s
it from
these
raising
questions
default bars
Kohlenberger’s
in the
alleged
default admits
those facts
only
without merit. A
it
judgment,
and if
are insufficient to
they
support
Harton,
will be reversed. Arkansas Bond Co.
898;
52;
248 S.W.
S.W.2d
Wilson v.
Overturf,
*18
Hickman,
469,
Ark.
action must be stated. This means that a
must
allege every
fact which the
would be
plaintiff
in order to
required
prove
recover. The facts
must
alleged
show the existence
aof
right
plaintiff
of that
infringement
defendant and
right by
that the
cause of action had accrued at the time of the
of the
filing
complaint.
to,
A
by default must
judgment
strictly conform and be supported
by,
allegations
complaint, and.a closer correspondence
between the
pleading
is
than
would be after
required
a contested trial.
590,
wantonly cause Young injury.
129 660-61, at 549-50. at 873 S.W.2d Young, from supra. is Young, case distinguishable The present the there was case, proof “nothing we stated In that care owed a that Paxton breached duty to indicate submitted Here, 660, there at 549. 873 S.W.2d Ark. at Young.” Nucor breached duty indicate that submitted to sufficient proof The alleges April to the complaint care owed appellees. 2001, “installing in the plant were working the appellees Nucor,” and that a Nucor operat- employee as instructed by pipe by the scissor lift being operated the crane into the crane ran ing acts several negligent alleged the complaint appellees. Nucor’s failure to follow Nucor, not limited to: (1) but including, crane; failure to (2) prepare properly regarding policies about the overhead site; Kilman and Evans failure to warn work (3) assist, crane; develop, supervise failure (4) properly failure to facilitate provide proper (5) piping procedure; care for safety failure to exercise ordinary and (6) warnings; and Kilman. Evans stated a claim
We believe sufficiently complaint of an that an It is employer for generally recognized negligence. to the contrac owes a common-law duty contractor independent their and to exercise care for safety tor’s ordinary employees hazardous condi hidden or warn dangers unusually against any Sanders, Ark. Warehouse, Inc. v. tions. D.B. Griffin in the In this the facts 5.W.3d 254 (2002). alleged of action for are sufficient to state cause negligence.
Venue court declines to set that even if this Kilman, court should in favor of this aside the default judgment set aside the reverse the denial of the motion to nevertheless to Evans because White Circuit County with respect Evans. The venue for claims by Court was not brought proper Nucor’s because it court did not reach the merits of argument trial its venue defense concluded that Nucor waived improper A motion to dismiss to answer or We object. agree. failing at no later than the time which venue must be filed improper Sales, Inc.v. is due. Inmon Truck Wright, original responsive pleading 397, 398-99, 795-96 (1988) (citing 743 S.W.2d Procedure, Newbern, (1985)). Practiceand 11-1 Arkansas Civil § *20 A defendant shall file within non-resident his answer of after the service summons him. days thirty complaint upon case, Nucor, Ark. R. Civ. P. In this a non-resident 12(a). See defendant, on did was served November 2001. Nucor not file to dismiss for venue within it motion after days improper thirty the summons and waived was served Nucor has its complaint. venue defense. improper
Systems trial in that the court erred Systems deny motion its to intervene because to Code Ann. Ark. ing pursuant Procedure, and Rule 24 Rules of Civil ll-9-410(a)(l)(A), § had a to intervene. Section 11-9— Systems statutory right 410(a)(1)(A) provides:
(a) (1)(A) LIABILITY The of a UNAFFECTED. claimfor making or compensation any carrierfor the or death against employer injury of an shallnot affectthe employee right or his or employee, her to make or a claim maintain an dependents, action court against any third for the but the or the party injury, employer carrier shallbe entitled to reasonable employer’s notice oppor- to tunity join in action.
Rule 24(a)(1)
shall be
provides: “Upon timely application anyone
to intervene in an
action when statute of
state
permitted
this
confers
an unconditional
to intervene.” Ark. R. Civ. P.
right
24(a)(1) (2003).
We have stated that
ll-9-410(a)(l)
gives
employer’s compen-
§
and,
intervene,
result,
sation carrier the
to
as a
the carrier
right
may
intervene as a matter of
under Ark. R. Civ. P.
to
right
its
24(a)
protect
Co.,
Carton v. Missouri
subrogation.
R.R.
right
Pacific
865 S.W.2d
See also Northwest Arkansas
(1993).
Area
on
Agency
Golmon,
Systems’s trial court erred in point appeal motion to set default Systems’s aside denying judgment. Systems contends that it have should been “to allowed intervene protect under indemnification and hold its lien and interest its rights with Nucor because failure to harmless give agreement Appellees’ notice, Annotated 11- as mandated Arkansas Code Systems § *21 fundamental of due violated most 9-410(a)(l)(A) Systems’ right notice, the contends that to Systems by failing provide process.” have not eliminated to only effectively Systems’s right appellees intervene, but have also to for subjected Systems potential liability of the $5.39 entire default under the indemni- payment judgment fication and hold harmless agreement. stated that we are and
Having remanding reversing this case to the trial court with instructions to allow Systems to intervene and its it is right right protect subrogation, for us to address due with unnecessary Systems’s process argument to its respect subrogation right. Systems’s remaining argument, to it had a to intervene to pursuant ll-9-410(a)(l)(A), right § its interest under the indemnification and hold harmless protect is without merit. Section agreement, entitles ll-9-410(a)(l)(A) to reasonable notice to in the action to Systems its join protect only it does not entitle to reasonable notice subrogation right; Systems in the action to its interest under join the indemnifica protect tion and hold harmless to boot agreement. Systems attempting its indemnification to its strap argument subrogation argument. remand, This we will not allow. intervene Upon Systems may for the its solely purpose protecting subrogation right. sum, the denial of Nucor’s motion of dismissal and
motion to set aside is affirmed. The denial of judgment Systems’s motion intervene is reversed and remanded in and the part, denial of motion to set aside default is affirmed. Systems’s
Affirmed in reversed and remanded in part; part. C.J.,
Dickey, J., Thornton, and dissent. Because believe Thornton, dissenting. I Ju ce,ce, Ray st st i i was void ab initiofrom a failure judgment summons, with the appellees strictly comply requirements and because I believe that unconditional to intervene System’s right warrants aside the default so that it can its setting protect Nucor, interest under the indemnification clause with I respectfully dissent. 4(b) Arkansas Rules of Civil Procedure pro-
vides: in
Form. The summons shall be the name of the and styled court court; clerk; shallbe and be under the signed by dated seal of the defendant; contain to the the names be directed state parties; name and address of the s if plaintiff attorney, any, otherwise within which plaintiff; address of the the time these rules the defendant to file a and defend shall require appear, pleading, so, him that in the case of failure to do notify his default be entered the relief against him for demanded in may complaint.
Ark. R. Civ. P. 4(b) (2003) added). (emphasis us,
In the case now before listed summons the defendants as et “Nucor al.” The listed the defen- Corporation, Warren, dants as “Nucor Roderick Corporation, individually, that, Doe.” Evans contends to the court of pursuant Appellee John Wilkins, Builder One appeals’ One holding Carpet App. *22 252, 128 S.W.3d the was (2003), summons I proper. disagree. case, In that the defendant was named “Builder as One One Carpet a/d/b/a One One” rather than One Design Carpet “Design court One.” The of looked to law Carpet Arkansas appeals the of writs service as well laws concerning as the garnishment, misnomers, of other after jurisdictions concerning determining that of misnomer on a in question regard “[t]he service has not been often in validity addressed process Arkansas.” Id. The court of that the held misnomer not was appeals fatal, stating: is One One apparent Design Carpet was the intended [i]t
defendant and was misnamed “Builder One One simply Carpet a/d/b/a One Design One” because were Carpet appellees unable the form of identify business that One One Design Carpet used the operated. Appellees “Design d/b/a One One” Carpet throughout introduced complaint, appellees evidence at motion to set aside that hearing appellant’s One Design Carpet Arkansas, One was a member Better Bureau Business Inc. member, (BBB), and that BBB records indicated that it was a - . . . and is with “company affiliated Builders One Carpet One.”
Id. A is misnomer defined as in mistake a naming person, “[a] or in a place, instrument.” Black’s Law thing, esp. legal Dictionary ed. The use (7th 1999). of “et al.” on the as a summons for the names substitution of two is not a misnomer. “Et parties al.” means other Law Black’s 573 (7th persons.” Dictionary “[a]nd ed. that the summons contain the 1999). 4(b) names requires of the parties.
In this summons contained the names of four Kilman, Evans, Evans, Mike as parties: Marty Betty plaintiffs, and Nucor as the defendant. two other Corporation, Though suit, defendants had been named in the Nucor was the only defendant listed on the summons. Buick, Co., v. Pontiac, Smith GMC 353 Ark. Sidney Moncrief
701,
Arkansas law is
settled that service of
long
valid
process
necessary
give court
jurisdiction over defendant.
v.
Raymond
343 Ark.
Raymond,
As
in
previously
court reiterated
Moncrief, supra,
that “the
summons,
technical
of a
requirements
compliance
with those
must be exact.”
Id.
requirements
Accordingly,
we held that a
Moncrief,
summons
identifies
incorrectly
defendants and misstates the deadline for
to the com-
responding
does not
with
plaint
strictly
the service
comply
requirements
our court rules. Id.
imposed by
We have
other cases
our
many
demonstrating
requirement
of strict
244,
In
v. Potlatch
compliance.
Thompson
Corp.,
denied the
motion to strike and motion for default
appellants’
because the record did not reflect
judgment
the issuance of a
Inc.,
summons. In Carruth
Interiors,
324 Ark.
Design
S.W.2d 944
we stated that the
(1996),
trial court should have
the motion to dismiss for failure
granted
of service of process
clerk,
because the summons was not
as is
signed by
required by
Inc.,
Rule 4. In
Wilburn v. Keenan
298 Ark.
Companies,
S.W.2d 531
we concluded that
(1989),
the trial court erred in
the motion to set
denying
aside default
where the
judgment
was void ab initio because the
judgment
service of summons and
was not in
with Rule
complaint
in that there
compliance
4(a)(3),
was no evidence that the
had directed the
appellee
summons and
to be mailed with restricted
Southern
delivery.
Transit
Collums,
Co.,
Inc. v.
for compensationagainstany or carrier employer for the or injury death of an shallnot affectthe employee right or employee, his or her to make dependents, a claim or maintainan action in court againstany third for the but the party injury, or the employer employer’scarriershallbeentitledto reasonablenoticeand opportunity join in theaction.
Id. (emphasisadded).
Rule 24(a)(1) provides: “Upon timely application anyone shall be to intervene in an permitted action when a statute of this state confers an unconditional to intervene.” Id. right Systems *24 contends that confers section an unconditional ll-9-410(a)(l)(A) I court has stated that Ark. Code intervention. Our right agree. Ann. car- ll-9-410(a)(l)(A) gives employer’s compensation § intervene, and, rier the to holds that right majority correctly the carrier intervene as a matter of under Ark. R. Civ. P. may right 24(a) Railroad, its Carton v. Missouri right protect subrogation. Pacific on a S.W.2d Based (1993). plain in Ark. Ann. Code I reading language ll-9-410(a)(l)(A), § would hold that has an unconditional intervene. Systems right Even if the that the default holding majority not be should set aside because of the defect in the against summons, I believe to intervene should result right Systems’s aside the default should have the setting judgment. Systems right to intervene for its interest in purpose protecting agreeing Nucor, and default indemnify that would any impose should be set aside. liability Systems reasons, For the I dissent. foregoing I am authorized to state that Chief this Dickey joins Justice dissent. ROLSTON v. STATE of Arkansas
Johnifer CR 04-588 186S.W.3d236 Court of Arkansas
Supreme 17,2004 delivered Opinion June PLLC, III, Mazzanti, Mazzanti Law P. Office, by: Joseph appellant.