Helena-W. Helena Pub. Sch. Dist. v. Shields , 497 S.W.3d 202 ( 2016 )

Cite as 2016 Ark. App. 312
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-15-425
HELENA-WEST HELENA PUBLIC Opinion Delivered JUNE 8, 2016
SCHOOL DISTRICT
APPEAL FROM THE PHILLIPS
APPELLANT COUNTY CIRCUIT COURT
[NO. CV 2008-144]
V.
HONORABLE L.T. SIMES II, JUDGE
ADRIANE RENA SHIELDS
REVERSED AND DISMISSED
APPELLEE
RITA W. GRUBER, Judge
The Phillips County Circuit Court entered a default judgment against the appellant,
the Helena-West Helena Public School District (the district), when it failed to respond to a
complaint filed by appellee Adriane Shields. After the court denied the district’s motion to set
aside the default judgment, it held another hearing and awarded damages, compensatory and
punitive, and attorney’s fees to Shields. The district appeals, challenging the entry of the
default judgment, the court’s failure to set aside the default judgment, and the award of
damages to Shields1. We hold that Shields failed to obtain proper service of process on the
district. Therefore, the circuit court erred in entering a default judgment against the district
and further erred in failing to set aside the default judgment. Accordingly, we reverse the
1
This is the second appeal in this case. See Helena-West Helena Sch. Dist. v. Shields,
2014 Ark. App. 519 (Shields I). In that appeal, we held that we lacked a final, appealable
order.
Cite as 2016 Ark. App. 312
judgment of the circuit court and dismiss Shields’s complaint.
Shields was under written contract as a secretary for the district for the 2007–08 school
year. In November 2007, she was terminated from her position after she refused an offer to
resign. In April 2008, Shields filed suit alleging that she had been illegally terminated. The
complaint asserted causes of action for breach of contract and violation of the Arkansas Civil
Rights Act and sought compensatory and punitive damages and attorney’s fees.
A summons was issued for Rudolph Howard, the district’s then superintendent. A
deputy sheriff purportedly effected service of the summons and complaint on May 17, 2008.
The return, filed on July 24, 2008, had a check on the space designating service on an agent
but did not otherwise identify the person served or the location where service was made. The
return also gave a general physical description of the person served. No response to the
complaint was filed by the district and, in September 2008, Shields moved for default
judgment.
Nothing further happened in the case until a notice of a May 23, 2011 hearing on the
motion for default judgment was sent to attorney Vandall Bland by the circuit court’s case
coordinator. At that hearing, the district argued that it had never been served and had no
notice of the lawsuit until it received the notice for the hearing. The district further argued
that Superintendent Howard would have been the proper person to serve with the complaint.
When the district proffered a photograph of Howard, the court sustained Shields’s objection.
After taking the matter under advisement, the court entered a one-sentence order granting
the motion for default judgment in September 2011.
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The district moved to vacate the default judgment, arguing it had never been served
and that it had meritorious defenses. In support of its motion, the district submitted the
affidavit of Superintendent Howard denying that he was served with the summons and
complaint and containing his physical description. The court denied the district’s motion,
finding that the district was properly served and that the return of service was sufficient proof.
The district also filed an answer to Shields’s complaint. As an affirmative defense, the
district alleged that service was void and improper and that more than 120 days had elapsed
without proper service.
Following a hearing on damages, the parties submitted proposed findings of fact and
conclusions of law. On January 15, 2013, the circuit court entered an order awarding Shields
various damages. Shields I, supra, at 2. After the district moved to set aside or vacate the order
and for a new trial, the circuit court entered an order purporting to finalize Shields’s damages.
Id. at 2–3.
We dismissed the district’s appeal. Shields I, supra. We held that the orders appealed
from were not final in that they contemplated further action and that they did not calculate
a precise award of damages. We directed the circuit court to calculate certain damages and the
attorney’s fees in dollars and cents.
On remand from Shields I, the circuit court entered an order on February 17, 2015,
specifying all of the damages and attorney’s fees awarded to Shields. The district timely moved
to set aside or vacate the order and for a new trial, renewing its contention that it still had not
been properly served with process. There was no action taken on the district’s posttrial
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motion, and it was deemed denied by operation of law on March 30, 2015. This appeal
followed.
Although the district argues nine points on appeal, the dispositive issue in this case is
whether the circuit court erred in finding that the district was properly served under Rule 4
of the Arkansas Rules of Civil Procedure. Because default judgments rendered without valid
service of process are void, we review the circuit court’s denial of the motion to set aside the
judgment using a de novo standard. Nucor Corp. v. Kilman, 358 Ark. 107, 118, 186 S.W.3d
720, 727 (2004).
Service of valid process is necessary to give a court jurisdiction over a defendant.
Unknown Heirs of Warbington v. First Cmty. Bank, 2011 Ark. 280, 383 S.W.3d 384. It is well
settled that service-of-process requirements, being in derogation of common-law rights, must
be strictly construed, and compliance with them must be exact. First Cmty. Bank, supra;
Carruth v. Design Interiors, Inc., 324 Ark. 373, 921 S.W.2d 944 (1996). Further, default
judgments are void due to defective process regardless of whether the defendant had actual
knowledge of the pending lawsuit. Nucor, 358 Ark. at 119, 186 S.W.3d at 727.
Shields argues that the district never came forth with any evidence to show that service
was improper. This argument is a misapprehension of the parties’ burdens because our service
rules place an “extremely heavy burden” on the plaintiff to demonstrate that compliance with
those rules has been had. See, e.g., Southeast Foods, Inc. v. Keener, 335 Ark. 209, 979 S.W.2d
885 (1998); Meeks v. Stevens, 301 Ark. 464, 785 S.W.2d 18 (1990); Dobbs v. Discover Bank,
2012 Ark. App. 678, 425 S.W.3d 50.
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Our courts have held that service is not proper where the plaintiff fails to produce
evidence that a person authorized by Rule 4 was served with process or refused service. Lyons
v. Forrest City Mach. Works, Inc., 301 Ark. 559, 785 S.W.2d 220 (1990) (holding service of
process not proper under Rule 4(d)(5) and dismissal mandatory under Rule 4(i) where
summons addressed to F.C. Machine Works and return showed that F.C. Machine Works
was served as “the person named therein as defendant”); see also Brown v. Ark. Dep’t of Human
Servs., 2013 Ark. App. 201.
Rule 4(d), which governs the available methods for effecting service, provides that “[a]
copy of the summons and complaint shall be served together.” Ark. R. Civ. P. 4(d). Section
4(d) states that “service shall be made upon any person designated by statute to receive service
or as follows” and lists the allowable methods of service. In this case, service on the district
is governed by Rule 4(d)(7), which provides in relevant part,
(7) Upon a state or municipal corporation or other governmental organization or
agency thereof, subject to suit, by delivering a copy of the summons and complaint to
the chief executive officer thereof, or other person designated by appointment or by
statute to receive such service, . . .
Ark. R. Civ. P. 4(d)(7) (emphasis added). Thus, Howard, as the district’s superintendent,
would have been the proper person to serve with Shields’s complaint. There may have been
others at the school offices authorized to accept service. See May v. Bob Hankins Distrib. Co.,
301 Ark. 494, 785 S.W.2d 23 (1990) (bookkeeper who was “more or less in charge” of the
office at the time of service held to be a managing or general agent). However, it was
incumbent on Shields to identify the person served. She did not do so.
There is a presumption of the validity of the sheriff’s return of service. Lyons, supra.
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That presumption is not conclusive in the face of evidence to the contrary. Id. While that
presumption would normally help a plaintiff such as Shields to meet that burden, it is of no
aid to Shields here because she never made a prima facie case that service was had on some
proper agent of the district. Moreover, Rudolph Howard’s affidavit denies that he was ever
served with the summons and complaint in this case. The argument also ignores the fact that
the district attempted to proffer evidence as to the description of Howard, but the court
sustained Shields’s objection.
This is not a new requirement that began with the adoption of the Arkansas Rules of
Civil Procedure in the late 1970s. Indeed, it comes from statutes and case law dating to the
inception of statehood. In Rose v. Ford, 2 Ark. 26 (1839), a deputy sheriff made return on a
summons in the following language: “Executed the within by reading, April 8th, 1839.” The
supreme court held the service insufficient to support entry of a default judgment because the
deputy was required to show who was served, along with what was served. It further held
that, although the return of service was presumed to be true, the trial court could not supply
necessary facts that were omitted.
It is mandatory under Arkansas law that service of process must be made within 120
days after the filing of the complaint unless there is a motion to extend, and if service is not
obtained within the 120-day period and no such motion is made, dismissal is required upon
motion or upon the court’s own initiative. See Ark. R. Civ. P. 4(i); Lyons, supra; see also
Southeast Foods, supra; Dougherty v. Sullivan, 318 Ark. 608, 887 S.W.2d 305 (1994); Lawson v.
Edmondson, 302 Ark. 46, 786 S.W.2d 823 (1990). Because Shields did not effect proper
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service on the district within 120 days of filing her complaint, we reverse the judgment of the
circuit court and dismiss the complaint.
Reversed and dismissed.
GLADWIN, C.J., and KINARD, J., agree.
Lawrence W. Jackson, for appellant.
Wilson Law Firm, by: Jimmie L. Wilson, for appellee.
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