Earls v. Harvest Credit Mgmt. VI-B LLC

Cite as 2014 Ark. App. 294
ARKANSAS COURT OF APPEALS
DIVISION I
No.CV-13-550
Opinion Delivered May 7, 2014
LINDA J. EARLS and TONY L. APPEAL FROM THE GREENE
EARLS COUNTY CIRCUIT COURT
APPELLANTS [NO. CV-2006-247]
V. HONORABLE PAMELA
HONEYCUTT, JUDGE
HARVEST CREDIT MANAGEMENT
VI-B, LLC
APPELLEE REVERSED
RHONDA K. WOOD, Judge
Under the Arkansas Rules of Civil Procedure, a summons must include the correct
time period for a defendant to respond to the complaint. This is a strict requirement, and
parties must comply with it exactly. Here, Harvest Credit Management served Linda and
Tony Earls (“Earls”) 1 with a summons that incorrectly stated the time to respond for an
incarcerated defendant and obtained a default judgment. We hold that this summons is
defective, even though neither Tony nor Linda was in jail, because it fails our bright-line
test of strict compliance. We therefore reverse the court’s denial of Earls’s motion to set
aside the default judgment.
In 2006, Harvest sued Earls on a delinquent credit-card account. It is undisputed
that the summons Harvest used contained an error: it said that an incarcerated defendant
1
For simplicity, we refer to Linda and Tony by the singular “Earls.”
Cite as 2014 Ark. App. 294
had 30 days, instead of 60 days, to file an answer. Nevertheless, Harvest obtained a default
judgment against Earls. In 2012, Earls filed a motion to set aside the default judgment,
arguing that the summons did not strictly comply with the Arkansas Rules of Civil
Procedure and that the judgment was void. The circuit court denied the motion and ruled
that service had been proper. Earls appealed.
Because Earls’s basic argument is that the underlying judgment is void for lack of
valid service, we review the circuit court’s denial of the motion to set aside the default
judgment de novo. Talley v. Asset Acceptance, LLC, 2011 Ark. App. 757. We construe
court rules using the same principles we use to interpret statutes: we give the words their
ordinary and usually accepted meaning in common language. Maestri v. Signature Bank of
Ark., 2013 Ark. App. 174. If the language is plain and unambiguous, we do not resort to
the rules of statutory construction. Id.
Rule 4(b) of the Arkansas Rules of Civil Procedure (2013) specifies, in part, that
the summons shall state “the time within which these rules require the defendant to
appear, file a pleading, and defend.” Our supreme court has established a bright-line test
and held that the rule’s “technical requirements . . . must be construed strictly and
compliance . . . must be exact.” Trusclair v. McGowan Working Partners, 2009 Ark. 203, at
4, 306 S.W.3d 428, 430. A summons that misstates the deadline for responding to the
complaint does not strictly comply with the service requirements and deprives the circuit
court of jurisdiction. Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120
S.W.3d 525 (2003); Maestri, supra. Our supreme court has noted that “[t]he bright line
standard of strict compliance permits certainty in the law; whereas, a substantial
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Cite as 2014 Ark. App. 294
compliance standard would lead to an ad hoc analysis in each case in order to determine
whether the due process requirements of the Arkansas and U.S. Constitutions have been
met.” Trusclair, 2009 Ark. 203, at 4, 306 S.W.3d at 430. At the time Harvest Credit filed
its complaint, Rule 12 provided that in-state defendants had 20 days to respond, out-of-
state defendants had 30 days to respond, and incarcerated defendants had 60 days to
respond. 2 Ark. R. Civ. P. 12(a) (2006).
Our supreme court has ruled in two cases that a summons was defective because it
misstated the time the defendant had to respond under the prior rule. For example, in
Trusclair, supra, the court ruled that a summons was defective because it told a foreign
corporation that it had 20, rather than 30, days to respond. Similarly, the court ruled that a
summons was defective when it told a domestic corporation that it had 30, rather than 20,
days to respond. Patsy Simmons Ltd. P’ship v. Finch, 2010 Ark. 451, 370 S.W.3d 257. But
no Arkansas case has addressed whether a summons is defective because the summons had
the incorrect time to respond for an incarcerated defendant. 3
Despite the lack of established precedent dealing with a mistake in the summons
that was inapplicable to the actual defendant, we can apply the relevant principles and the
rule’s plain language to decide this case. In so doing, we hold that the summons was
defective because it stated that an incarcerated defendant had only 30 days to respond,
2
The rule has since been modified to provide that both in-state and out-of-state
defendants have 30 days to file an answer. Ark. R. Civ. P. 12(a) (2013).
3
An unreported federal district court decision has addressed this issue. The court
held that the summons, which was identical to the one in this case, was defective.
Charkoma Res., LLC v. JB Energy Explorations, LLC, No. 09-02119, 2009 WL 4829014
(W.D. Ark. Dec. 8, 2009).
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Cite as 2014 Ark. App. 294
instead of the correct 60 days. This holding permits certainty in the law and is consistent
with our supreme court’s mandate to apply a bright-line standard. If we were to require a
summons to correctly state the 60-day requirement only if the defendant were
incarcerated, as Harvest contends, we would have to engage in the rejected “ad hoc
analysis.” A plaintiff cannot know with certainty whether a defendant will be incarcerated
when served, and the bright-line test relieves courts from deciding on a case-by-case basis
whether the correct date is required depending on the defendant’s incarcerated status.
That factual inquiry is unnecessary, and courts can instead focus on the summons itself. Cf.
Trusclair, 2009 Ark. 203, at 4, 306 S.W.3d at 430 (rejecting a substantial compliance
standard that would “lead to an ad hoc analysis in each case in order to determine whether
the [constitutional] due process requirements . . . have been met”).
To conclude, the summons in this case told the defendants that they had 30 days to
respond if they were incarcerated. That misstated the rule, which says a defendant has 60
days to respond if incarcerated. Thus, the summons was defective, and the circuit court
lacked jurisdiction to enter the default judgment. We therefore reverse the circuit court’s
denial of the motion to set aside the default judgment.
Reversed.
WALMSLEY and BROWN, JJ., agree.
Crawley, DeLoache & Hargis, PLLC, by: Joel G. Hargis; and The Cruz Law Firm,
PLC, by: Kathy A Cruz, for appellants.
Hosto & Buchan, P.L.L.C., by: Travis A. Gray and Brien Saputo, for appellee.
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