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2015 Ark. App. 488
ARKANSAS COURT OF APPEALS
DIVISIONS I, II & III
No. CV-14-1095
WENDY JONES AND LYNN Opinion Delivered SEPTEMBER 16, 2015
GANGEMELLA
APPELLANTS APPEAL FROM THE GARLAND
COUNTY CIRCUIT COURT
V. [NO. CV-08-704-II]
HONORABLE VICKI SHAW COOK,
TED DOUGLAS, INDIVIDUALLY, JUDGE
AND JOHN PAUL MORRISON,
INDIVIDUALLY, AND D/B/A
POLYMERS, INC. AFFIRMED IN PART;
APPELLEES REVERSED IN PART
KENNETH S. HIXSON, Judge
Appellants Wendy Jones and Lynn Gangemella appeal the September 5, 2014 order
setting aside a default judgment entered against appellees Ted Douglas and John Paul
Morrison, in their individual capacities and d/b/a Polymers, Inc., and they appeal the
November 18, 2014, order dismissing the case with prejudice. Appellants sued appellees
alleging breach of contract and fraudulent misrepresentation in connection with the sale of a
residence. When appellees failed to answer the complaint, appellants moved for and were
granted a default judgment. Years later, appellees filed a motion to set aside the default
judgment followed by a motion to dismiss the case with prejudice. Each motion was granted
by the circuit court. Appellants argue on appeal that the circuit court erred in setting aside
the default judgment against appellees and further compounded the error by entering an order
Cite as 2015 Ark. App. 488
dismissing the case with prejudice. We affirm the trial court’s setting aside of the default
judgment. We reverse the trial court’s dismissal of the complaint with prejudice; the dismissal
should be without prejudice.
Facts
Ted Douglas (“Douglas”) and John Paul Morrison (“Morrison”) owned a residence
located at 200 Bafanridge, Hot Springs, Arkansas (“the residence”). Douglas and Morrison also
owned a corporation known as Polymers, Inc. (“Polymers”). In 2005, Douglas and Morrison
purchased property in Turrialba, Costa Rica, with the intent to move there. In October
2005, Douglas and Morrison sold the Hot Springs residence to appellants, Jones and
Gangemella. Prior to closing, appellants engaged the services of Robert Bedford, individually
and d/b/a Robert Bedford Home Inspection Service (“Bedford”), to perform a home
inspection. The purchase price of the residence was $345,900. Appellants borrowed
approximately $330,000 from Summit Bank and conveyed a first mortgage to the bank.
Appellants borrowed $13,000 from Polymers (the corporation owned by Douglas and
Morrison) and executed a promissory note and second mortgage in favor of Polymers. In
2006, Douglas and Morrison moved to Costa Rica.
Appellants began experiencing significant water drainage problems with the residence,
and in June 2008, appellants filed a lawsuit in Garland County Circuit Court. Appellants sued
Douglas, Morrison, and Polymer, alleging that they fraudulently failed to disclose, or failed
to properly repair, certain defects in the residence. Appellants alleged in the complaint that
Douglas and Morrison were individual residents of Turrialba, Costa Rica, and that they “were
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and are d/b/a Polymers, Inc.”1 Appellants sued Bedford alleging that he was negligent in
performing his home inspection.2
On June 3, 2008, the Circuit Clerk of Garland County issued three summonses: one
summons was addressed to “Ted Douglas, Apdo #23, CATIE, Costa Rica, 7170”; one
summons was addressed to “John Paul Morrison, Apdo #23, CATIE, Costa Rica, 7170”; and
one summons was addressed to “Polymers, Inc., Apdo #23, CATIE, Costa Rica, 7170.”3
Each summons incorrectly stated that the defendant therein had twenty days to respond to the
complaint or a default judgment may be entered against him.4 The attorney for appellants
attempted to serve each of the three defendants/appellees individually by registered mail,
return receipt requested, in accordance with Arkansas Rule of Civil Procedure 4(8)(i) (2008).
According to the Affidavit of Return of Summons and the attachments thereto filed by
appellants’ attorney, the attorney mailed a copy of the complaint and summons to each of the
three appellees. The attorney utilized a United States Postal Service Return Receipt for
1
By the time the complaint was filed, the corporation had been revoked by the
Arkansas Secretary of State. The registered agent for this revoked Arkansas corporation was
appellee John Paul Morrison, whose address was listed as 200 Bafanridge Street in Hot
Springs. Polymers’s officers included appellee Ted Douglas (president) and appellee John Paul
Morrison (vice president and secretary).
2
The claim against Bedford was dismissed by the appellants and is not a part of this
appeal.
3
“Apdo” is a Spanish abbreviation for post office box. “CATIE” is an abbreviation for
Cento Agronomico Tropical de Investigacion y Ensenanza, which translates to Center for
Tropical Agricultural Research and Education.
4
When the summons was prepared in 2008, an in-state defendant had twenty days to
answer a complaint, but a defendant “not residing in this State” had thirty days to file an
answer pursuant to Arkansas Rule of Civil Procedure 12(a)(1) (2008).
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International Mail form and a United States Postal Service Customs Declaration form. Each
of the three envelopes was returned to the appellants’ attorney with a Costa Rican postal form
marked “rehusado,” which is Spanish for “refused.” Thereafter, appellants’ attorney sent a
first-class mailing to appellees, which was never returned. Appellants’ attorney also stated in
the Affidavit that appellants were going to “run a warning order in the [Hot Springs] Sentinel
Record.”5
On September 5, 2008, appellants moved for default judgment against each
appellee due to the failure to respond to the complaint. On September 9, 2008, the circuit
court entered an order granting default judgment for the full contract price of the
residence—$345,900—plus attorney fees, costs, and postjudgment interest. Thereafter,
appellants served one writ of garnishment on Summit Bank, collecting $225 from a bank
account belonging to Polymers.
In 2012, Douglas and Morrison moved back to Garland County, Arkansas. Appellants
continued to attempt to collect on the judgment by filing writs of garnishment. The
collection efforts proved unsuccessful. In July 2014, an attorney for appellees filed a motion
to set aside the default judgment alleging that each summons was defective on its face in that
each summons stated that the defendant had twenty days to respond instead of the thirty days
required by the Rule. Simultaneously, appellees filed a motion to quash garnishments that
had been filed by appellants attempting to collect on the judgment.
5
It was undisputed that appellants’ attorney did not “run a warning order in the
Sentinel Record.”
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Appellants responded, stating that appellees maintained business and personal
connections with Arkansas at all times and were presently living in Hot Springs; that process
was served on appellees when they refused the mailed documents; that any purported error
in perfecting service was harmless; and that setting aside the default judgment would be
wholly unjust and would reward the conscious efforts of appellees to avoid service of process.
On August 25, 2014, the circuit judge issued a letter opinion setting aside the default
judgment. The circuit judge found that while appellees “were served with summons and
complaint in 2008,” appellees were not Arkansas residents in 2008, and that the summons
erroneously stated that appellees had twenty days instead of thirty days within which to
answer and defend. Due to this fatal defect in the summonses, the trial court was lacking
personal jurisdiction over appellees, which voided the default judgment against them. A
formal order, incorporating the letter opinion, was filed of record in September 2014.6
After the default had been set aside and after the garnishments had been quashed,
appellees filed a motion to dismiss the case with prejudice. Appellees explained their
residency in Costa Rica from 2006 until 2012 and appended affidavits to support that they
were Costa Rican residents in 2008. Appellees’ affidavits further swore that they did not
refuse nor did they ever receive the summons and complaint. They provided a Costa Rican
attorney’s affidavit to establish that the Costa Rican postal service is inherently unreliable.
6
The writs of garnishment were set aside on August 27, 2014, for reasons unrelated to
this appeal.
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Appellees added that because no service was ever completed on them, appellants were not
entitled to the benefit of Arkansas’ savings statute and dismissal should be with prejudice.
Appellants responded that they had provided substantial evidence of refusal of this
restricted mail; that appellants used the same Costa Rican mailing address that appellees
undeniably used for years; and that complaints about the reliability of the Costa Rican postal
service were unsupported, conclusory statements.
In November 2014, the trial court entered an order dismissing appellants’ case with
prejudice. The court found that appellants were not entitled to the benefit of Arkansas’
savings statute, Arkansas Code Annotated section 16-56-125, due to a failure to “complete
service of process” on appellees within 120 days of the complaint being filed. A timely notice
of appeal followed.
On appeal, appellants contend that the trial court erred when it (1) set aside the default
judgment; and (2) dismissed the complaint with prejudice instead of without prejudice. We
affirm as to the first argument but reverse as to the second argument. It is paramount to
appreciate the distinction between the two issues on appeal. The first issue (setting aside a
default judgment) involves the proper review for service of process; however, the second issue
(dismissing the case with prejudice) involves the proper review for application of the savings
statute. These are two separate and distinct issues.
The Order to Set Aside the Default Judgment
The first point on appeal is whether the trial court erred in setting aside the default
judgment. A circuit court acquires no jurisdiction over a defendant unless the plaintiff strictly
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complies with the service-of-process rules. Simmons Ltd. Partnership v. Finch,
2010 Ark. 451,
370 S.W.3d 257; Cagle v. Terwilliger,
2015 Ark. App. 191. Strict compliance specifically
applies to the technical requirements of a summons. Smith v. Sydney Moncrief Pontiac, Buick,
GMC Co.,
353 Ark. 701,
120 S.W.3d 525 (2003). A defendant’s personal knowledge of the
litigation does not cure a fatal defect in the summons. Earls v. Harvest Credit Mgmt. VI-B,
LLC,
2015 Ark. 175,
460 S.W.3d 795. This court reviews a circuit court’s factual conclusions
regarding service of process under a clearly-erroneous standard, and when dismissal is a matter
of law, the court conducts a de novo review of the record. McMahan v. Ark. Dep’t of Human
Servs.,
2014 Ark. App. 590,
446 S.W.3d 640.
Appellants argue that appellees failed to prove they were no longer residents of
Arkansas when service of process was mailed to them and that the trial court erred in finding
that appellees’ residence was out of state in 2008. We disagree and affirm this finding.
Appellants suggest that the law uses the terms “residence” and “domicile”
interchangeably and mean, for purposes of jurisdictional requirements, the same thing.
Appellants contend that all evidence was clear that appellees intended to return to Arkansas
as their domicile. To the contrary, although the differences are subtle, residence and domicile
are not the same thing. Leathers v. Warmack, 341 Ark. 609,
19 S.W.3d 27 (2000). A person
may have several residences at one time, but he can only have one domicile.
Id. Intent is a
much greater consideration in determining one’s domicile than residence. Lawrence v.
Sullivan,
90 Ark. App. 206,
205 S.W.3d 168 (2005). Residence denotes only the act of
residing.
Id.
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We hold that the trial court did not clearly err in finding that appellees were not
residents of Arkansas in 2008 but rather residents of Costa Rica when the complaint and
summons were mailed to them. Appellees bought land in Costa Rica and moved there in
2006, setting up residence. Appellees continued to reside in Costa Rica until 2012, and they
returned to Arkansas. Moreover, appellants averred in their complaint that appellees were
Costa Rican residents, and Costa Rica was where the complaint and summons were sent. See
Dupwe v. Wallace, 355 Ark. 521,
140 S.W.3d 464 (2004)(explaining judicial estoppel against
taking inconsistent positions). There was no error in the trial court determination that
appellees were not residents of Arkansas at the time of the lawsuit being filed and service being
made.
Because we affirm the circuit court’s ruling that appellees were residents of Costa Rica
in 2008 when service was attempted, we hold that the circuit court did not err in setting aside
the default judgment based on appellants’ noncompliance with Rule 4. The summonses
recited that appellees had twenty days to respond but, because they were defendants not
residing in Arkansas at that time, the summonses should have stated that they had thirty days
after service to answer. See Ark. R. Civ. P. 12(a)(1)(A)(“a defendant not residing in this state
shall file an answer within 30 days after service); see also Trusclair v. McGowan Working Partners,
2009 Ark. 203, at 4,
306 S.W.3d 428, 430 (holding that Rule 4(b) of the Arkansas Rules of
Civil Procedure specifies, in part, that the summons shall state the time within which these
rules require the defendant to appear, file a pleading, and defend and that our supreme court
has established a bright-line test; the Rule’s technical requirements must be construed strictly;
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compliance must be exact). Substantial compliance will not do. Failure to adhere to this
requirement mandated that the trial court deem the default void for want of personal
jurisdiction. See
Earls, supra.
Moreover, we hasten to add that appellees were entitled to have the default judgment
against them set aside on a secondary basis, that being under Arkansas Rule of Civil Procedure
4(d)(8)(A)(ii). This subsection provides that any default judgment “may be set aside pursuant
to Rule 55(c) if the addressee demonstrates to the court that the return receipt was signed or
delivery was refused by someone other than the addressee or agent of the addressee.”
Appellees provided evidence to the trial court through affidavits swearing that they did not
refuse, nor did they authorize any agent on their behalf to refuse, the service of process in this
instance. Based on the evidence presented, we cannot say that the trial court clearly erred in
this finding.
The record is clear that the appellants did not strictly comply with the service-of-
process statutes and rules and, therefore, the trial court did not err in setting aside the default
judgment.
Dismissal With Prejudice vs. Without Prejudice
Application of the Savings Statute
Appellants assert that, even if we affirm the setting aside of the default judgment, the
circuit court erred in entering a subsequent order finding that the dismissal should be with
prejudice. Appellants maintain that service was completed, perhaps defectively or improperly,
but that they are entitled to the benefit of Arkansas’ savings statute, which would permit them
to refile the complaint and obtain proper service within one year of the order of dismissal.
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See Rettig v. Ballard,
2009 Ark. 629,
362 S.W.3d 260;
Ark. Code Ann. § 16-56-126 (Repl.
2005). We find merit to this argument.
Our savings statute is codified at Arkansas Code Annotated section 16-56-126, and it
provides that if an action is “commenced” within the applicable statute of limitations, and the
plaintiff suffers a nonsuit, then a new suit may be commenced within one year of the date of
the dismissal. Savings statutes are remedial in nature. Linder v. Howard, 296 Ark. 414,
757
S.W.2d 549 (1988). These statutes reflect the legislature’s intent to protect those who, 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.
Id. Before the savings statute applies, though, an
action must be “commenced.”
Ark. Code Ann. § 16-56-126(a).
A suit is “commenced” when the complaint is timely filed and service of the complaint
and summons is completed within the 120-day limit required by Arkansas Rule of Civil
Procedure 4. Rettig, supra. A trial court’s later ruling that completed service is invalid will not
disinherit the plaintiff from the benefit of the savings statute, which is in line with the
equitable and liberal construction that must be given the savings statute. Forrest City Machine
Works, Inc v. Lyons,
315 Ark. 173,
866 S.W.2d 372 (1993); see also Newbern & Watkins,
Arkansas Civil Practice and Procedure § 5.10 (5th ed. 2010).
Thus, the narrow issue becomes whether service, albeit imperfect, was “completed.”
Our supreme court requires, at the very least, a valid attempt to complete service in order to
invoke the savings statute. McCoy v. Montgomery, 370 Ark. 333,
259 S.W.3d 430 (2007).
Undoubtedly, if the only defect herein was the twenty-day versus thirty-day time limit to
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answer, then the dismissal would have to be without prejudice according to the holding in
Rettig, supra. However, here we have an additional potential defect in that appellants may not
have strictly complied with the restricted delivery mailing requirements in Rule 4. Our
question, therefore, is whether the evidence in the record detailing the timely attempts by
appellants to serve process on appellees constitutes completed service to trigger the savings
statute. We hold that, under the facts of this case, appellants completed service on appellees
and are, therefore, entitled to the beneficent purposes of the savings statute.
For service outside Arkansas, Rule 4(e) (2008) provides that service may be made
“when reasonably calculated to give actual notice” by mail as provided in Rule 4(d)(8).
According to Arkansas Code Annotated section 16-58-132, where service of summons,
process, or notice is provided by registered or certified mail, and the addressee “refuses to
accept delivery, and it is so stated in the return receipt of the United States Postal Service, the
written return receipt, if returned and filed in the action, shall be deemed an actual and valid
service of the summons, process, or notice.”
Here, the summonses and complaints were mailed to appellees at their last known
address in Costa Rica by using a United States Postal Service form for Return Receipt for
International Mail. The form indicated that the envelope was a registered article, and the
envelope indicated “return receipt requested.” Appellants also utilized a United States Postal
Service form for Customs Declaration. Appellants assert that when the summonses and
complaints were “refused,” service was then and there “completed” as provided for by
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Arkansas Code Annotated section 16-58-132 and the Arkansas Rule of Civil Procedure.
Arkansas Rule of Civil Procedure 4(d)(8)(A)(i) and (ii) (2008) provide in pertinent part:
Service of a summons and complaint upon a defendant . . . may be made . . . 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.
....
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. If delivery
of mailed process is refused, the plaintiff or attorney making such service, promptly
upon receipt of notice of such refusal, shall mail to the defendant by first class mail the
copy of the summons and complaint and a notice that despite such refusal the case will
proceed and the judgment by default may be rendered against him unless he appears
to defend the suit. (Emphasis added.)
When the envelopes containing the complaints and summonses were returned to appellants’
attorney, each envelope was imprinted with a Costa Rican postal service stamp that contained
several options for delivery. Each envelope had an “x” marked beside the word “rehusado.”
Rule 4 provides that upon notice of refusal, the plaintiff must promptly send the papers by
first class mail, which the plaintiffs’ attorney represented to have done. Regardless of whether
we deem this adequate to prove service via refusal,7 appellants clearly made a timely attempt
to serve appellees.
Our court discussed the concept of what it means to “complete” service in Clouse v.
Ngau Van Tu, 101 Ark. App. 260,
274 S.W.3d 344 (2008). Appellants maintain that Clouse
7
This would have been a proper and valid argument in setting aside the default
judgment for insufficient service of process; but, it is not dispositive of whether service was
completed for purposes of application of the savings statute.
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is instructive, and we agree. The trial court, and our court in affirming the trial court, found
that Ngau Van Tu’s lawsuit against his former chiropractor, Dr. Lance Clouse, was
commenced by Tu completing timely but defective service of his complaint and summons.
The papers were delivered to the chiropractor’s office but handed to the chiropractor’s wife
and not the chiropractor personally. We agreed with the trial judge that the defect entitled
Dr. Clouse to have this lawsuit dismissed, but without prejudice to it being refiled by Tu.
Clouse,
101 Ark. App. at 261,
274 S.W.3d at 344.
The Clouse opinion made clear that there are two alternatives: either there is no service
at all, in which case the savings statute is not triggered; or, there is timely but imperfect
service, in which case the savings statute applies. Id. The Clouse decision held that it is
unimportant whether the circumstances are characterized as “attempted service or timely
completed service later ruled invalid” to determine the “commencement” inquiry:
Here the law must be practical and clear. It is: when the plaintiff completes timely
service of the summons and complaint, he commences his case even if time reveals that
the service was defective in some particular. . . . If the law were otherwise, the
beneficent purpose of our saving statute would be thwarted.
Id. at 266–67,
274 S.W.3d at 348.
The supreme court held similarly in Posey v. St. Bernard’s Healthcare, Inc., 365 Ark. 154,
226 S.W.3d 757 (2006), stating that:
Even though this court has interpreted the savings statute liberally, applying it in cases
where a timely completed attempt at service was later held to be invalid, see [Forrest City
Machine Works, Inc. v. Lyons, 315 Ark. 173,
866 S.W.2d 372 [(1993)], this court has
specifically held that service of process must, at least, be timely attempted in order for
the action to be deemed to have commenced so that the savings statute will apply.
(Emphasis added.)
13
Cite as 2015 Ark. App. 488Id. at 165–66, 266 S.W.3d at 765. Similar support is found in Professor Brill’s8 treatise,
Arkansas Law of Damages § 13:9 (5th Ed.):
The case law distinguishes between cases where no service was attempted and cases in
which service was completed but defectively. At a minimum, service of process must
have been timely attempted for the savings statute to be applicable. Defective service,
provided it is done within the 120 period, causes a dismissal without prejudice and
thus provides the shelter of the savings statute. Accordingly, a lawsuit commenced in
time but dismissed because the summons was defective or service was flawed, may be
filed as a new action. Thus, the savings statute is designed to permit a litigant an
opportunity to correct a defect in service of process when the statute of limitations
would otherwise bar the suit.
In the present appeal, with the liberal construction that the savings statute is to be given, and
with appellants’ service of process timely but deemed defective at a later time, we hold that
appellants are entitled to a dismissal without prejudice.
The setting aside of the default judgment is affirmed. The dismissal “with prejudice”
is reversed because appellants are entitled to the benefit of the savings statute and, thus, the
dismissal is “without prejudice.”
Affirmed in part; reversed in part.
HARRISON, KINARD, WHITEAKER, VAUGHT and HOOFMAN, JJ., agree.
GLADWIN, C.J., and VIRDEN and GRUBER, JJ., dissent.
ROBERT J. GLADWIN , Chief Judge, dissenting. The majority finds merit in
appellants’ argument that, even if we affirm the finding that the summons was defective and,
thus, dismissal was proper, the circuit court erred in entering a subsequent order dismissing
8
Professor Brill was recently appointed chief justice of the Arkansas Supreme Court by
Governor Asa Hutchinson.
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with prejudice. I disagree that service was completed, albeit improperly, and that precedent
allows appellants to refile the complaint and obtain proper service within one year of the order
of dismissal pursuant to Rettig v. Ballard,
2009 Ark. 629,
362 S.W.3d 260. Accordingly, I
dissent.
In David Newbern & John J. Watkins, Arkansas Civil Practice and Procedure § 5.10 (4th
ed. 2006), the authors state that the savings statute permits a plaintiff to commence a new
action, and that the savings statute applies if a “timely, completed attempt at service is made but
later held to be invalid.” Id. at 102–04 (emphasis added). The savings statute permits a new
commencement of the action, in effect, an opportunity to correct a dismissal without
prejudice by timely service of valid process when the statute of limitations would otherwise
bar the suit.
The majority relies on Clouse v. Tu, 101 Ark. App. 260,
274 S.W.3d 344 (2008),
which held that Ngau Van Tu’s lawsuit against his former chiropractor, Dr. Lance Clouse,
was commenced by Tu completing timely but defective service of his complaint and
summons. This court held that the defect entitled Dr. Clouse to have this case dismissed, but
without prejudice to it being refiled by Tu. Clouse,
101 Ark. App. at 261,
274 S.W.3d at 344.
I disagree with appellants’ application of Clouse because here, service was neither made
on, nor refused by, appellees within the statute of limitations. It is appellants’ burden to
demonstrate compliance with the service rules, not appellees’ burden to prove
noncompliance. McMahan v. Ark. Dep’t of Human Servs., 2014 Ark. App. 590,
446 S.W.3d
640.
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Where service is made by mail, the plaintiff’s burden is to prove that the mailed service
was received or affirmatively refused by the addressee or an agent authorized to receive mail
in accordance with U.S. Postal Service regulations. Valley v. Helena Nat’l Bank, 99 Ark. App.
270,
259 S.W.3d 461 (2007).
As recently as March 18, 2015, this court has held that a circuit court acquires no
jurisdiction over a defendant unless the plaintiff strictly complies with the service and process
rules. Cagle v. Terwilliger, 2015 Ark. App. 191; accord
Rettig, supra. Strict compliance with
process rules includes issuing a summons that apprises the defendant of the correct time to
respond and completing service of that summons and complaint within the window set out
by Arkansas Rule of Civil Procedure 4 (2014). If a statute of limitations lapses after a
complaint has been filed and the plaintiff does not complete service in the time Rule 4 allows,
dismissal with prejudice is proper because the action never commenced and is now
time-barred. Cagle,
2015 Ark. App. 191, at 3–5. A dismissal based on a Rule 4 error is not
unique. This case differs from the typical Rule 4 dismissal case only because the circuit court
had to resolve disputed factual questions about the residency of appellees and their alleged
refusal of service.
I do not agree that the circuit court clearly erred in relying on sworn affidavits from
appellees Douglas and Morrison that they did not refuse mailed service or authorize anyone
else to refuse it for them. Evidence indicates that the complaint and summons were sent to
a post-office box at an agricultural college in a third-world country 1800 miles from Hot
Springs, Arkansas, more than two years after appellees had moved to rural Costa Rica.
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Appellees did not check the post-office box themselves; their farm manager did. Appellees did
not appoint anyone as an agent under U.S. Postal Service regulations for receiving restricted
mail or ask anyone to refuse mail on their behalf. Accepting those statements as true, as the
circuit court was entitled to do under Arkansas Rule of Civil Procedure 43(c) (2014), even
a “refusal” of the mail by someone with access to the box could not have qualified as
completed service. Meeks, supra. Although appellants produced three envelopes marked
“rehusada,” “refused,” by an unnamed Costa Rican postal employee, those envelopes do not
indicate who refused or the circumstances surrounding that action.
Regarding the argument that service on appellees was completed by refusal, rather than
acceptance of restricted-delivery mail, this is similar to Brown v. Arkansas Department of Human
Services, 2013 Ark. App. 201. The defendant-appellant in Brown objected in circuit court that
he had not signed the green card showing service of a petition. The court of appeals agreed
that service had not been established and reversed the circuit court’s order terminating his
parental rights. This court held that in order “to validate its effort under Rule 4, the
Department of Human Services had to establish that whoever signed the green card at the
Penninger Drive address was Brown’s authorized agent for service.”
Id. at 4–5. It presented
no such evidence, and its attempted service fell short of the Rule 4 requirements.
Here, appellants likewise failed to provide evidence that appellees themselves refused
service or that whoever refused service was appellees’ authorized agent for service.
Accordingly, their “completed attempted service” falls short of the requirements of Rule 4.
VIRDEN and GRUBER, JJ., join.
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Jonathan D. Jones, for appellants.
Ludwig Law Firm, PLC, by: Ryan K. Culpepper; and The Cruz Law Firm, PLC, by:
Kathy A. Cruz, for appellees.
18
