SCOTT WHITE AND JAMIE WHITE v. HUNTER OWEN AND JOHN DOES 1-3
No. CV-19-781
SUPREME COURT OF ARKANSAS
February 18, 2021
2021 Ark. 31
COURTNEY RAE HUDSON, Associate Justice
APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60CV-18-4697], HONORABLE CHRISTOPHER CHARLES PIAZZA, JUDGE. AFFIRMED AS MODIFIED; COURT OF APPEALS’ OPINION VACATED.
Appellants Scott and Jamie White appeal from the Pulaski County Circuit Court‘s order dismissing with prejudice their claims against appellee Hunter Owen. For reversal, the Whites argue that the circuit court erred in dismissing the suit based on defective service of process. Alternatively, they contend that the circuit court erred in dismissing the suit with prejudice when the savings statute applied. We affirm as modified.
This case stems from a motor-vehicle accident that occurred on August 22, 2015. The Whites filed a complaint against Owen on July 9, 2018, alleging claims of negligence and requesting damages for personal injuries. Prior to being served with the complaint and summons, Owen filed an answer to the complaint on August 17, 2018, wherein he admitted that he was “at all times relevant” a resident of Sherwood, Arkansas. Owen also asserted all affirmative defenses, including insufficiency of process and service of process.
On October 22, 2018, the Whites filed a motion for extension of time to serve Owen, claiming that they had made a good-faith attempt to serve him at his last four known addresses but had been unable to locate him. They requested an additional 120 days to obtain service. The circuit court granted the motion on October 23, 2018, and extended the time for service through February 19, 2019.
Owen filed a motion to dismiss the complaint on February 28, 2019. He alleged that on February 15, 2019, a process server had attempted service at Owen‘s mother‘s home located at 1808 Windridge Court in Sherwood, Arkansas. Although his mother, Jennifer Armour, explained that Owen did not reside
In their response, the Whites claimed that they had hired two different process servers, attempted service through certified letter and restricted delivery, and ran searches for Owen‘s current residence. The Whites asserted that they believed they had perfected service on Owen and that even if they had not, their complaint should not be dismissed due to a technicality after the service deadline had passed. Attached to their response was an affidavit from Jerome Mitchell, one of their process servers. Mitchell stated that Owen‘s voter registration had listed the Sherwood address, and the Whites included an exhibit confirming that this address is listed on Owen‘s voter registration, which is dated March 27, 2014. The Whites also claimed that the Sherwood address was listed on the collision report from the accident. Mitchell averred that when he served the documents at the Sherwood address, Armour voiced no objection, never indicated
Owen filed a reply claiming that he had disclosed his current address on September 25, 2018, in response to the Whites’ first set of interrogatories and request for production of documents. The discovery response, which was attached as an exhibit, listed Owen‘s residence address as “3802 Kavanaugh Boulevard, Apt. 702, Little Rock, AR 72205.” He asserted that process servers had been told by his mother on two separate occasions that he did not reside at her home in Sherwood and that the Whites had failed to perfect service under
Following a hearing on the motion to dismiss, the circuit court entered an order on July 8, 2019, finding that the motion should be granted and dismissing the complaint with prejudice. The Whites filed a timely notice of appeal from the dismissal on July 26, 2019. On August 9, 2019, the Whites filed a “Rule 60 Motion to Reconsider,” arguing that under the revised version of
The Whites first argue that the circuit court erred by dismissing their complaint on the basis of defective service of process. They contend that leaving the documents with Owen‘s mother at the Sherwood address was consistent with the public records showing that he held her home out as his residence and was compliant with the 2019 version of Rule 4 that was in effect at the time of service. Owen responds that the Whites were required to comply with the rules of civil procedure in effect when they filed their complaint and that it would disturb his vested due-process rights to retroactively apply the newer version of the rule. Owen asserts that even if the 2019 version did apply, service was insufficient under the facts in this case.
We generally review a circuit court‘s decision to grant a motion to dismiss under an abuse-of-discretion standard. DeSoto Gathering Co., LLC v. Hill, 2018 Ark. 103, 541 S.W.3d 415. The construction of a court rule, however, is a question of law, which we review de novo. Id. When construing the meaning of a court rule, we use the same means and canons of construction that we use to interpret statutes. Tollett v. Wilson, 2020 Ark. 326, 608 S.W.3d 602. The primary rule of statutory construction is to give effect to the intent of the drafting body. 3 Rivers Logistics, Inc. v. Brown-Wright Post No. 158 of the Am. Legion, Dep‘t of Ark., Inc., 2018 Ark. 91, 548 S.W.3d 137. We first construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. When the language of a statute is plain and unambiguous, we determine the drafter‘s intent from the ordinary meaning of the language used. Id.
(f) Personal Service Inside the State. Service of process shall be made inside the state as follows:
(1) Natural Persons. If the defendant is a natural person at least 18 years of age or emancipated by court order, by:
(A) delivering a copy of the process to the defendant personally, or if he or she refuses to receive it after the process server makes his or her purpose clear, by leaving the papers in close proximity to the defendant;
(B) leaving the process with any member of the defendant‘s family at least 18 years of age at a place where the defendant resides; or
(C) delivering the process to an agent authorized by appointment or by law to receive service of summons on the defendant‘s behalf.
. . . .
(k) Disregard of Error; Actual Notice. Any error as to the sufficiency of process or the sufficiency of service of process shall be disregarded if the court determines that the serving party substantially complied with the provisions of this rule and that the defendant received actual notice of the complaint and filed a timely answer.
In paragraph (1)(B), the phrase “a place where the defendant resides” replaces its counterpart in former paragraph (d)(1), “dwelling house or usual place of abode.” The effect of this change is to overturn State Office of Child Support Enforcement v. Mitchell, 330 Ark. 338, 954 S.W.2d 907 (1997), which defined the latter phrase in terms of domicile: a person‘s “fixed permanent home, the place to which he has—whenever absent—the intention of returning.” Id. at 344, 954 S.W.2d at 910. Residence and domicile are not synonymous; a person can have multiple residences but only one domicile. See Leathers v. Warmack, 341 Ark. 609, 19 S.W.3d 27 (2000); Lawrence v. Sullivan, 90 Ark. App. 206, 205 S.W.3d 168 (2005). This change makes Arkansas practice consistent with that in other jurisdictions whose courts have rejected the narrow approach taken in Mitchell. See, e.g., Nat‘l Dev. Co. v. Triad Holding Corp., 930 F.2d 253 (2d Cir. 1991); United States v. Tobin, 483 F. Supp. 2d 68 (D. Mass. 2007); Blittersdorf v. Eikenberry, 964 P.2d 413 (Wyo. 1998); Sheldon v. Fettig, 919 P.2d 1209 (Wash. 1996); Van Buren v. Glasco, 217 S.E.2d 579 (N.C. 1975), overruled on other grounds by Love v. Moore, 291 S.E.2d 141 (N.C. 1982).
We agree with the Whites that the 2019 version of Rule 4 governs the service attempt in this case, which occurred in February 2019, after the date the revisions became effective. Owen‘s argument that retroactive application of these rule changes would disturb his vested rights is
The Whites argue that service of process at Owen‘s mother‘s home in Sherwood was sufficient under
In Mitchell, the Office of Child Support Enforcement served process on Mitchell by handing the summons and complaint to his mother at her house. The evidence showed that Mitchell used his mother‘s address as his mailing address, although he lived at a separate residence. Mitchell, 330 Ark. at 341, 954 S.W.2d at 908. We noted that Mitchell‘s driver‘s license, employer, and property assessments all listed his mother‘s address and that he maintained “significant contacts” with that residence, stopping by at least three times a week to see his mother and pick up his mail. Id. at 342, 954 S.W.2d at 909. Nonetheless, because we determined that Mitchell‘s domicile or usual place of abode was at a separate address, we held that service was insufficient. Id. at 344–45, 954 S.W.2d at 910.
The Whites argue that the facts in Mitchell are similar to those in the present case and that because the 2019 amendment to
In Blittersdorf, the defendant was served when process was left with his wife at their residence in Centennial, Wyoming. At the time of service, the defendant had been living in Jackson, Wyoming, for the previous nine months. Blittersdorf, 964 P.2d at 414. He maintained a post office box and registered some vehicles in Jackson,
As the reporter‘s notes to
The Whites next argue that, even if they did not strictly comply with the substituted service requirements in
As their final, alternative argument, the Whites contend that even if the service of process was defective, the circuit court erred by not dismissing their complaint without prejudice. They claim that their timely attempted service commenced the suit for purposes of the savings statute, which then tolled the statute of limitations and provided them one year to refile their suit. We agree.
The savings statute,
Owen asserts, as he did below, that the savings statute does not apply to the Whites’ action because he had disclosed his correct address prior to their attempted service on him. He contends that there is a “good faith element” for a plaintiff to obtain the benefit of the savings statute. We disagree that our prior cases have imposed such a requirement. Owen points to language in Linder v. Howard, 296 Ark. 414, 418, 757 S.W.2d 549, 551 (1988), as well as in other cases, that the purpose of the savings statute is “to protect those who, although having filed an action in good faith and in a timely manner, would suffer a complete loss of relief on the merits because of a procedural defect.” However, the procedural defect at issue in Linder was the initial filing of the case in the wrong court, and it is apparent that the reference to “good faith” was in regard to the filing of the suit itself, not to an attempt at service of process. Id. Owen‘s citation to an “implicit” good-faith requirement in Eliansik v. Y & S Pine Bluff, LLC, 2018 Ark. App. 138, 546 S.W.3d 497, is also unpersuasive. Not only is this court not bound by court of appeals
We have rejected the argument that before a savings statute may be invoked, the summons and complaint must be properly served on the defendant. Lyons, supra. As we stated in Lyons,
Arkansas‘s rules pertaining to commencement of an action require only that the plaintiff complete service upon the defendant within 120 days from the filing of the complaint. If the plaintiff fails to complete service during that period, he or she may still request that the time be extended to complete service in order to protect the plaintiff against the running of a statute of limitations if that extension is requested within the 120 day period. In sum, to toll the limitations period and to invoke the saving statute, a plaintiff need only file his or her complaint within the statute of limitations and complete timely service on a defendant. A court‘s later ruling finding that completed service invalid does not disinherit the plaintiff from the benefit of the saving statute. Our interpretation of
§ 16-56-126 meets with the liberal and equitable construction which must be given it in order to give litigants a reasonable time to renew their cause of action when they are compelled to abandon it as a result of their own act or the court‘s. See Cole, 304 Ark. at 30, 800 S.W.2d at 415. Such construction is also consistent with this court‘s rules which are designed to compel litigants to file their actions and either promptly initiate service on the responding parties or give the trial court some reason for needing additional time to complete service.
Id. at 177, 866 S.W.2d at 374. Because the Whites’ complaint was commenced within the applicable statute-of-limitations period and they attempted service on Owen within the time provided under
Affirmed as modified; court of appeals’ opinion vacated.
Rainwater, Holt & Sexton, P.A., by: Jake M. Logan; and Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellants.
Anderson Murphy & Hopkins, by: Jason J. Campbell, for appellees.