Ladd v. PS Little Rock Inc. , 2016 Ark. App. 506 ( 2016 )

Cite as 2016 Ark. App. 506
ARKANSAS COURT OF APPEALS
DIVISION I
No.CV-16-17
TALMA LADD Opinion Delivered: OCTOBER 26, 2016
APPELLANT APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT, NINTH
V. DIVISION [NO. 60CV-14-2087]
HONORABLE MARY SPENCER
PS LITTLE ROCK, INC., AND NICK MCGOWAN, JUDGE
NAYLOR D/B/A NAYLOR
FLOORING
APPELLEES REVERSED AND REMANDED
KENNETH S. HIXSON, Judge
Appellant Talma Ladd appeals from an order dismissing with prejudice her complaint
against appellee PS Little Rock, Inc. (Pro Source). The trial court dismissed Talma’s
complaint based on its finding that service on Pro Source was defective for various reasons.
On appeal, Talma argues that she properly served Pro Source and that the order of dismissal
should therefore be reversed. We agree, and we reverse the order of dismissal and remand
for further proceedings.
Talma instituted this action in 2013 when she filed her initial complaint against Pro
Source and separate defendant Nick Naylor d/b/a Naylor Flooring (Naylor). 1 The trial
court subsequently entered orders dismissing Talma’s complaint against Pro Source and
Naylor without prejudice.
1
For reasons explained later in this opinion, Naylor is not a party to this appeal.
Cite as 2016 Ark. App. 506
Talma timely refiled her complaint in 2014 against Pro Source and Naylor. In her
complaint, Talma alleged that she contacted Pro Source to perform certain floor work in
her home. Pro Source allegedly persuaded Talma to retain the services of Naylor. On the
recommendation of Pro Source, Talma hired Naylor to perform the floor work. Talma
alleged that Naylor failed to perform the floor work in a workmanlike manner, which caused
damages to her home. Talma filed suit against Naylor for negligence and breach of contract.
Talma also sued Pro Source for negligence, deceit, and a violation of the Arkansas Deceptive
Trade Practices Act, averring that Pro Source knew, or should have known, that Naylor
lacked the ability to perform the floor work in a workmanlike manner.
Talma’s summons and complaint were purportedly served on Pro Source’s registered
agent, The Corporation Company, on June 17, 2014. Pro Source filed a motion to dismiss
Talma’s complaint for various reasons, including that proper service had not been perfected
and, therefore, that the trial court lacked jurisdiction over Pro Source. Talma subsequently
filed a motion to strike Pro Source’s motion to dismiss and for default judgment, and in the
alternative a response to the motion to dismiss. In Talma’s motion, she asserted that service
of the summons and complaint had been perfected, and further that Pro Source had failed
to file an answer within thirty days of service as required by Arkansas Rule of Civil
Procedure 12(a).
The record reflects that the summons and complaint were sent by certified mail to
Pro Source c/o The Corporation Company at 124 West Capitol Avenue, Suite 1400, Little
Rock, AR 72201. Talma obtained the identity of Pro Source’s registered agent, The
Corporation Company, as well as its address, from information provided by the Arkansas
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Secretary of State. The summons and complaint were received on June 17, 2014, as
evidenced by the signature “CT Corp” in the signature block of the return receipt and “6-
17-14” as the printed date of delivery on the receipt. However, the post office return
receipt indicated that delivery was made to Suite 1900 and not Suite 1400 of the identified
street address. In the typed address on the return receipt, the “4” had been changed to a
handwritten “9.” In the “proof of service” dated July 1, 2014, Talma’s attorney represented,
“I delivered the summons and complaint to The Corporation Company, an agent
authorized by appointment or by law to receive service of summons on behalf of PS Little
Rock, Inc. on 6-17-14.”
On September 17, 2015, the trial court entered an order dismissing with prejudice
Talma’s complaint against Pro Source. The trial court made the following findings in
support of its order:
[T]he Plaintiff filed a summons with some entries for the proof of service. As
evidenced by the Plaintiff’s own filing, the Plaintiff entered the wrong address for
the purported agent of the Defendant Pro Source; Plaintiff’s counsel incorrectly
indicated that he had personally delivered the summons and complaint to the
purported agent when in fact he attempted to mail these pleadings via certified mail;
the Plaintiff did not provide receipts for the certified mailing; the return receipt was
not stamped by the post office, and no signature or name as to who received the
document appears on the return receipt. The service in this case on the Defendant
Pro Source is obviously defective.
Based on its finding that there had been no valid service within 120 days of the filing of the
complaint as required by Arkansas Rule of Civil Procedure 4(i), the trial court dismissed
Talma’s complaint against Pro Source, and because the case had been previously dismissed,
the dismissal was with prejudice. See Ark. R. Civ. P. 41(b).
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Also, on the same day, the trial court entered a separate order dismissing Talma’s
complaint against Naylor with prejudice. That dismissal was based on Talma’s failure to
serve Naylor with her complaint within 120 days.
Talma filed a timely notice of appeal from both the order of dismissal in favor of Pro
Source and the order of dismissal in favor of Naylor. However, after the record was filed
on appeal, Talma filed a motion to voluntarily dismiss her appeal as to Naylor only, and we
granted the motion. Therefore, the only remaining parties are appellant Talma and appellee
Pro Source.
Talma argues on appeal that the trial court erred in dismissing her complaint against
Pro Source because, contrary to the trial court’s findings, she timely perfected service on
Pro Source. We agree.
Our case law is well settled that statutory-service requirements, being in derogation
of common-law rights, must be strictly construed and compliance with them must be exact.
Trusclair v. McGowan Working Partners, 2009 Ark. 203, 306 S.W.3d 428. This court has held
that the same reasoning applies to service requirements imposed by court rules. Id. More
particularly, the technical requirements of a summons set out in Arkansas Rule of Civil
Procedure 4(b) must be construed strictly and compliance with those requirements must be
exact. Id. Actual knowledge of a proceeding does not validate defective process. Id. The
reason for this rule is that service of valid process is necessary to give a court jurisdiction
over a defendant. Id. This court reviews a trial court’s factual conclusions regarding service
of process under a clearly erroneous standard, and when dismissal is a matter of law, the
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court conducts a de novo review of the record. Union Pac. R.R. Co. v. Skender, 2016 Ark.
App. 206, 489 S.W.3d 176.
Arkansas Rule of Civil Procedure 4(d) provides, for purposes relevant to this case:
(d) Personal Service Inside the State. A copy of the summons and complaint shall be
served together. The plaintiff shall furnish the person making service with such
copies as are necessary. Service shall be made upon any person designated by statute
to receive service or as follows:
....
(5) Upon a domestic or foreign corporation or upon a partnership, limited liability
company, or any unincorporated association subject to suit under a common name,
by delivering a copy of the summons and complaint to an officer, partner other than
a limited partner, managing or general agent, or any agent authorized by appointment
or by law to receive service of summons.
....
(8)(A)(i) Service of summons and complaint upon a defendant of any class referred
to in paragraphs (1) through (5), and (7) of this subdivision (d) may be made by the
plaintiff or an attorney of record for the plaintiff by any form of mail addressed to the
person to be served with a return receipt requested and delivery restricted to the
addressee or the agent of the addressee. The addressee must be a natural person
specified by name, and the agent of the addressee must be authorized in accordance
with U.S. Postal Service regulations. However, service on the registered agent of a
corporation or other organization may be made by certified mail with a return receipt requested.
(ii) Service pursuant to this paragraph (A) shall not be the basis for the entry of a
default or judgment by default unless the record contains a return receipt signed by
the addressee or the agent of the addressee or a returned envelope, postal document
or affidavit by a postal employee reciting or showing refusal of the process by the
addressee.
(Emphasis added.)
In deciding whether the trial court erred in concluding that Talma failed to perfect
service on Pro Source, we must review each of the five reasons given by the trial court in
support of its decision that service was defective. The first reason listed by the trial court
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was that Talma entered the wrong address for the purported agent of Pro Source on her
summons.
Arkansas Code Annotated section 4-20-105(a)(1) (Supp. 2015) provides that a
registered-agent filing with the Secretary of State must state the name of the represented
entity’s commercial registered agent. In this case, Talma obtained the identity of Pro
Source’s registered agent, The Corporation Company, from the Secretary of State where
Pro Source identified its agent as such. Pro Source did not deny that The Corporation
Company was its registered agent. The address for the registered agent was also taken from
information provided to the Secretary of State. The address provided by the Secretary of
State, and accurately reflected on Talma’s summons, was 124 West Capitol Avenue, Suite
1400, Little Rock, AR 72201. It appears that the requirement that a corporation maintain
a registered office and agent with proper address is to make it amenable to service of process
or notice of other proceedings. Delta Oil Co. v. Catalani, 276 Ark. 66, 70, 633 S.W.2d 1,
3 (1982). Pro Source did not challenge the accuracy of the information provided by the
Secretary of State and relied on by Talma, nor did it present proof that this was the wrong
address. Moreover, it is clear that service was accomplished upon delivery because the
return receipt was signed by “CT Corp,” which Pro Source does not deny was authorized
to accept service. Therefore, we conclude that this ground for defective service was
unsupported.
The next reason for defective service given by the trial court was that Talma’s counsel
incorrectly indicated on the “proof of service” that he had personally delivered the summons
and complaint to the purported agent, when in fact he attempted to mail these documents
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via certified mail. Rule 4(g) requires the person effecting service to file a proof of service.
However, Rule 4(g) further provides that “[f]ailure to make proof of service, however,
shall not affect the validity of service.” Because the record contains a return receipt
demonstrating valid service on Pro Source, we conclude that any inaccuracies in the “proof
of service” filled out by Talma’s attorney did not invalidate the service.
The third and fourth grounds for dismissal given by the trial court were that Talma
failed to provide receipts for the certified mailing and that the return receipt was not stamped
by the post office. However, the third ground announced by the trial court was inaccurate
because Talma did provide a return receipt demonstrating that the summons and complaint
were delivered by certified mail. And, there is nothing in our rules of civil procedure
requiring that the return receipt be stamped.
Finally, the trial court concluded that service was defective because no signature or
name as to who received the documents appeared on the return receipt. This finding is
belied by the fact that the return receipt is signed, “CT Corp.” Pursuant to a 2004
amendment, the last sentence of Rule 4(d)(8)(i) now provides that “service on the registered
agent of a corporation or other organization may be made by certified mail with a return
receipt requested.” The rationale for adding this last sentence to the rule was to establish
less onerous requirements when service is made on the registered agent of a corporation or
other organization. Advance Fiberglass, LLC v. Rovnaghi, 2011 Ark. 516. The rule, as
amended, makes it very clear that restricted delivery is not required, and as such, there is no
requirement that the addressee be a natural person or that the agent of the addressee be
authorized in accordance with postal-service regulations. Id. The rule permits service by
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certified mail, with return receipt requested, which is what occurred in the instant case.
The signatory signed “CT Corp” in the signature block of the return receipt, and Pro
Source does not contend that this was an unauthorized signature. Having concluded that
there was valid service of process on Pro Source, we reverse the trial court’s order of
dismissal.
In Talma’s brief, she also asks that we remand this case to the trial court with
instructions to strike Pro Source’s responsive pleading (filed more than thirty days after
service of the complaint) and to enter a default judgment. Conversely, in Pro Source’s brief,
it contends that these issues were not preserved and were expressly abandoned because, in
her notice of appeal, Talma stated that she “abandons any pending but unresolved claim.”
We cannot conclude that Talma has abandoned her motions to strike Pro Source’s
brief or for default judgment. The language in her notice of appeal stating that she
abandoned any pending and unresolved claim was made pursuant to the requirements of
Arkansas Rule of Civil Procedure−Civil 3(e)(vi). Talma’s notice of appeal further clarified
that “[t]here are no outstanding claims in this case.” Because the trial court dismissed
Talma’s complaint, it made no rulings on her motion to strike and motion for default
judgment. These motions are not separate “claims” as contemplated by Rule 3(e)(vi) and
have therefore not been abandoned by Talma. However, because the trial court has not
ruled on Talma’s motions, there are no rulings for us to review, and we decline to direct
any action on these motions by the trial court. Upon remand, the disposition of these
motions and any further proceedings will be for the trial court to resolve.
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Finally, we observe that, in Pro Source’s brief, it contends that because Talma
abandoned her appeal against Naylor, the same dismissal should apply to her appeal against
Pro Source. Pro Source argues that because of the dismissal as to Naylor, there remain no
claims for damages against Pro Source. However, Pro Source has cited no authority nor
provided any convincing argument that Talma’s case against Pro Source must be dismissed
on these grounds, and we reject Pro Source’s invitation.
For the reasons set forth above, the order dismissing Talma’s complaint against Pro
Source is reversed. The case is remanded for further proceedings.
Reversed and remanded.
GLOVER and HOOFMAN, JJ., agree.
Johnson & Vines, PLLC, by: James “Chris” McNeal and J. Andrew Vines, for appellant.
The Overton Firm, LLC, by: J. Don Overton, for appellee PS Little Rock, Inc.
Bryce Brewer Law Firm, by: Bryce Brewer; and Brian G. Brooks, Attorney at Law, PLLC,
by: Brian G. Brooks, for appellee Nick Naylor d/b/a Naylor Flooring.
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