Hall v. State Farm Bank , 2015 Ark. App. LEXIS 386 ( 2015 )

Cite as 2015 Ark. App. 287
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-14-754
OPINION DELIVERED MAY 6, 2015
JOHN HALL APPEAL FROM THE
APPELLANT INDEPENDENCE COUNTY
CIRCUIT COURT
[NO. CV-2013-143-3]
V.
HONORABLE TIM WEAVER,
JUDGE
STATE FARM BANK
APPELLEE AFFIRMED
ROBERT J. GLADWIN, Chief Judge
Appellant John Hall appeals the November 14, 2013 default judgment and the June
16, 2014 order denying his motion to dismiss and quash garnishment filed by the
Independence County Circuit Court. He argues that the circuit court erred in not finding
that a summons directed to both appellant and his ex-wife, Susan Hall, as multiple
defendants, was deficient process under Arkansas Rule of Civil Procedure 4(b) (2013) and
failed to confer personal jurisdiction, rendering the default judgment void ab initio. We
affirm.
On September 11, 2013, appellant was personally served a summons by a licensed
process server which directed “THE STATE OF ARKANSAS TO DEFENDANT: John
and Susan Hall.” Appellant never filed an answer to the complaint by appellee State Farm
Bank. The circuit court granted a default judgment on November 2, 2013, and the judgment
Cite as 2015 Ark. App. 287
was filed on November 14, 2013. A writ of garnishment was filed on January 3, 2014, and
the garnishment order was filed on February 11, 2014. Appellant filed a motion to set aside
the judgment and quash the writ of garnishment on February 3, 2014, which, among other
things, stated that a deficiency in the summons rendered the default judgment void. After a
response and a reply were filed, the circuit court denied the motion to set aside judgment and
quash writ of garnishment following a hearing on June 9, 2014, and filed the resulting order
on June 16, 2014. A notice of appeal from both was filed on July 8, 2014.
The standard of review for the granting or the denial of a motion to set aside a default
judgment varies based upon which subsection of Arkansas Rule of Civil Procedure 55(c)
(2014) is invoked. Nucor Corp. v. Kilman, 358 Ark. 107, 186 S.W.3d 720 (2004). In cases such
as this one, where appellant states that the judgment is void ab initio under Rule 55(c)(2), the
standard of review is de novo.
The question is whether multiple names may be inserted in a portion of the summons
form that on its face appears to be intended for only the name of the individual party being
served. It has been held by our supreme court that “statutory service requirements, being in
derogation of common law rights, must be strictly construed and compliance with them must
be exact.” Steward v. Kuettel, 2014 Ark. 499, at 8, 450 S.W.3d 672, 676; Carruth v. Design
Interiors, Inc., 324 Ark. 373, 374–75, 921 S.W.2d 944, 945 (1996).
Arkansas Rule of Civil Procedure 4(b) (2014) governs the form and content of a
summons shall have, including that it shall “be directed to the defendant.” Appellant notes
that the term “defendant” is not pluralized nor is there an optional “s” on it. Also in that
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same rule, our supreme court gives its form of summons for personal service. That form
begins with the style of the case which, among other things, lists “the names of the parties.”
Immediately afterward, the heading “SUMMONS” appears in all caps followed by the
directive, “THE STATE OF ARKANSAS TO DEFENDANT: [defendant’s name and
address].” Appellant notes that this form as to whom the summons is directed is singular and
the portion that defines what information should be placed on the blank line creates the
singular possessive form of “defendant’s.” He submits that there is no optional plural usage
as to whom the summons is directed. This form is simple and concise, and appellant claims
that the reason is because this is the form to which each individual involved in a lawsuit is
to be apprised of that lawsuit. He urges that it stands to reason that there should be no room
for confusion as to who is being notified, who is being called into an action, and who must
file an answer.
Appellant argues that receiving a notice with both their names on it left him with the
impression that either he or Susan Hall could deal with the matter. He could also have been
left with the notion that it was her card, and therefore her responsibility. Appellant argues
that by not clarifying which person was actually being put on notice, he was given the
impression that he was not individually responsible for answering the summons, which he
would have been had the matter been handled within the parameters prescribed by Rule 4.
Accordingly, appellant argues that a summons directed to more than one defendant is
deficient process under Rule 4(b) and fails to confer personal jurisdiction, rendering any
default judgment void ab initio.
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We disagree and hold that appellant’s argument is without merit. We acknowledge
that cases preceding this one that have dealt with deviations from the summons form have
upheld the notion that statutory service requirements, being in derogation of common law
rights, must be strictly construed and compliance with them must be exact. See Steward, supra;
Carruth, supra; Wilburn v. Keenan Cos., 298 Ark. 461, 768 S.W.2d 531 (1989); Edmonson v.
Farris, 263 Ark. 505, 565 S.W.2d 617 (1978). But as our supreme court stated in Nucor, supra,
“we have also found that a literal application which leads to absurd consequences should be
rejected where an alternative interpretation effects the statute’s purpose.” Id. at 122, 186
S.W.3d at 729.
First, we note that there is no express prohibition in Rule 4(b) or the included form
to listing more than one defendant, despite appellant’s assertion to the contrary. His argument
is one of form over substance that would lead to an absurd consequence under these facts.
This is not a situation where the summons had not been signed by the circuit clerk. See
Carruth, supra. It is also distinguishable from Wilburn, supra, where a default judgment was
reversed because the “restricted delivery” box was not checked when attempting to gain
service by certified mail, leading to another person signing for the delivery. It is also dissimilar
to Edmonson, supra, where the default judgment was reversed where service was made upon
a member of appellant’s household, his wife, at the jail rather than at the place of abode.
In Nucor, supra, the appellant argued that a summons that listed the defendants as
“Nucor Corporation, Et Al.” was defective because it was not in strict compliance with Rule
4. Nucor argued that the summons failed to list all of the defendants, as required under its
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interpretation of Rule 4, because the summons directed to Nucor Corporation substituted
additional defendant names with “Et Al.” Our supreme court held that the summons that
referred to a number of defendants as only “Nucor Corporation, Et Al.” was not fatally
defective because Nucor, the party at issue, was correctly identified in that summons. Nucor,
358 Ark. at 123, 186 S.W.3d at 730 (2004). As in Nucor, in no way did the form of the
summons in this case fail to apprise appellant of the pendency of the suit or deny him an
opportunity to be heard. He makes no such argument. We hold that the summons was not
fatally defective.
We acknowledge that the year after the Nucor decision, our supreme court held that,
“The language of the official form includes the phrase ‘THE STATE OF ARKANSAS TO
DEFENDANT: ________ .’ We are unwilling to conclude that this phrase is nothing more
than surplus verbiage.” Shotzman v. Berumen, 363 Ark. 215, 228, 213 S.W.3d 13, 20 (2005).
We note, however, that Shotzman dealt with a distinguishable factual situation in which one
of the specific defendants was left off the summons, thus causing an invalid service of process
because the summons failed to apprise that defendant that a suit was pending against it and
afford it an opportunity to be heard.
Nucor sets a floor for compliance with Rule 4 that requires that the summons clearly
apprise the defendant receiving it of a pending lawsuit against him or her by correctly
identifying the party to which it is directed. Nucor, 358 Ark. at 122–23, 186 S.W.3d at 729.
We hold that the summons in this case conforms to the heightened level of compliance with
Rule 4 that the supreme court rejected as leading to potentially “absurd consequences.” Id.
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Appellee’s summons reads: “THE STATE OF ARKANSAS TO DEFENDANT: JOHN
HALL AND SUSAN HALL.” The language of Nucor contemplates that listing all of the
defendants on a summons is the proper literal reading of Rule 4. Id. Appellant is clearly
identified in the summons, and we find no merit in his argument that the summons is
deficient for identifying other defendants—here, Susan Hall.
We also distinguish the cases upon which appellant relies regarding a mistake or
deviation on a summons form not constituting excusable error simply because he was put on
notice that there was a lawsuit. While acknowledging Carruth, supra, and the cases cited
therein, in which Arkansas appellate courts have held that actual knowledge of a proceeding
does not cure bad service or validate defective process, see Tucker v. Johnson, 275 Ark. 61, 628
S.W.2d 281 (1982) (superseded by Rule 55 as amended in 1990), we hold that under these
facts no mistake or deviation in the summons occurred.
Finally, we reiterate that our supreme court has held that pro se litigants are held to
the same standard as those represented by counsel. Moon v. Holloway, 353 Ark. 520, 110
S.W.3d 250 (2003). Pro se litigants receive no special consideration of their argument and
are held to the same standard as a licensed attorney. Elder v. Mark Ford & Assocs., 103 Ark.
App. 302, 288 S.W.3d 702 (2008). Until appellant retained an attorney, he was proceeding
pro se, electing not to consult with an attorney and ignoring the summons altogether.
Appellant’s argument that Nucor is inapplicable because Nucor Corporation was a
sophisticated corporation, and he is an “individual, uneducated in the law” is without any
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basis in law, as both Moon and Elder hold that all litigants are held to the same standards,
regardless of sophistication.
Affirmed.
ABRAMSON and HARRISON , JJ., agree.
Murphy, Thompson, Arnold, Skinner & Castleberry, by: Bill Arnold and Blair Arnold, for
appellant.
Hosto & Buchan, P.L.L.C., by: Brien G. Saputo, for appellee.
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