Marlo Anderson v. Mamie Riley and Andrew Riley

Annotate this Case
ca03-998

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

MARLO ANDERSON

APPELLANT

V.

MAMIE RILEY and ANDREW RILEY

APPELLEES

CA 03-998

JUNE 2, 2004

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT

[NO. CV02-8696]

HONORABLE TIMOTHY FOX,

JUDGE

AFFIRMED

John B. Robbins, Judge

The trial court dismissed appellant's complaint against appellee Mamie Riley for insufficient service of process.1 Thereafter, appellant asked the trial court to reconsider the dismissal pursuant to Ark. R. Civ. P. 60. The trial court denied appellant's request, and this appeal followed. We find no error and affirm.

On August 15, 2002, appellant sued Mamie Riley in connection with an automobile accident that occurred on August 15, 1999, in Pulaski County. It is undisputed that Ms. Riley, who apparently moved to California after the accident, was never served with a summons or a complaint. However, at some point shortly after the complaint was filed, appellant's attorney sent a copy of it to Ms. Riley's automobile insurance company, who forwarded it to attorney Mel Sayes. On September 12, 1999, Sayes filed an answer on

Ms. Riley's behalf, asserting the defenses of "insufficiency of process, insufficiency of service of process, and statute of limitations." Within the next few months, Sayes propounded discovery to appellant, filed a motion to compel, and filed a notice to take a deposition.

On February 19, 2003, 188 days after the complaint was filed, Sayes filed a motion to dismiss, arguing that appellant had failed to perfect service on Ms. Riley within 120 days of filing the complaint or request an extension of time for service, as required by Ark. R. Civ. P. 4(i). Sayes further argued that the dismissal should be with prejudice because the three-year statute of limitations had run. Appellant responded that Ms. Riley waived service of process when Sayes answered the complaint and that the Model Rules of Professional Conduct prohibited his serving Ms. Riley once she retained an attorney. The trial court granted the motion to dismiss on April 7, 2003, and no appeal was taken from that order.

On April 22, 2003, appellant filed a motion to reconsider pursuant to Ark. R. Civ. P. 60(a). She argued that 1) Ms. Riley had deliberately avoided service of process; 2) service on attorney Sayes amounted to service on Ms. Riley under California law; 3) Ms. Riley waived service of process when Sayes answered the complaint; 4) the assertion of insufficient service in Sayes's answer was vague; and 5) alternatively, if the complaint must be dismissed, it should be dismissed without prejudice, due to the application of the saving statute. The court denied appellant's Rule 60 motion, and appellant has appealed from that order. Our standard of review is whether the trial court abused its discretion. See RLI Ins. Co. v. Coe, 306 Ark. 337, 813 S.W.2d 783 (1991); Fritzinger v. Beene, 80 Ark. App. 416, 97 S.W.3d 440 (2003).

Service of process or a waiver of that service is necessary in order to satisfy the due process requirements of the United States Constitution. Meeks v. Stevens, 301 Ark. 464, 785 S.W.2d 18 (1990). Moreover, a plaintiff's service of process on a defendant is necessary to give the trial court in which the plaintiff's cause of action will be tried personal jurisdiction over the defendant. Raymond v. Raymond, 343 Ark. 480, 36 S.W.3d 733 (2001). Statutory service requirements, being in derogation of common-law rights, must be strictly construed, and compliance with them must be exact. Id. The same reasoning applies to service requirements imposed by court rules. Id. Actual knowledge of a proceeding does not validate defective process. Id. See also Builder One Carpet One v. Wilkins, ___ Ark. App. ___, 128 S.W.3d 828 (2003).

We first address appellant's argument that she accomplished service on Ms. Riley in a manner recognized by California law. Arkansas Rule of Civil Procedure 4(e)(2) (2004) provides that, whenever Arkansas law authorizes service outside the state, the service, when reasonably calculated to give actual notice, may be made "in any manner prescribed by the law of the place in which service is made in that place in an action in any of its courts of general jurisdiction." Appellant claims that her "service" of the complaint on attorney Sayes constituted service on Ms. Riley pursuant to either Cal. Civ. Proc. Code § 416.70 or Cal. Civ. Proc. Code § 416.90 (Deering 1991). Section 416.70 reads:

Service on person (other than minor) for whom fiduciary appointed

A summons may be served on a person (other than a minor) for whom a guardian, conservator, or similar fiduciary has been appointed by delivering a copy of the summons and of the complaint to his guardian, conservator, or similar fiduciary and to such person, but, for good cause shown, the court in which the action is pending may dispense with delivery to such person.

Section 416.90 reads:

Service on other persons

A summons may be served on a person not otherwise specified in this article by delivering a copy of the summons and of the complaint to such person or to a person authorized by him to receive service of process.

Appellant contends that Sayes was either a fiduciary under section 416.70 or a person authorized to accept service under section 416.90.

Appellant's argument is flawed in several respects. First, while the parties seem to agree that appellant sent a copy of the complaint to the Rileys' insurance company, there is no indication that she served a copy on Sayes. Secondly, there is no evidence that appellant served a summons on Sayes. Sections 416.70 and 416.90 require service by delivery of a summons and a complaint, as does California law generally. See Cal. Civ. Proc. Code §§ 415.10, 415.20, and 415.30 (Deering 1991 & Supp. 2004).

In any event, even if a complaint and summons were served on attorney Sayes, we do not believe it would constitute service on Ms. Riley under Cal. Civ. Proc. Code § 416.70 or Cal. Civ. Proc. Code § 416.90. Section 416.70 contemplates service being made on a fiduciary that is "similar" to a guardian or conservator, which Sayes, as a defense attorney, is not. Further, the Judicial Comment to that section states that it requires "double service," i.e., service on both the guardian and the incompetent, except where good cause is shown. Appellant offers no argument on appeal, nor did she offer an argument to the trial court, to show good cause why service on Sayes alone would be acceptable. Thus, service was not accomplished pursuant to section 416.70.

Neither was service accomplished under section 416.90. That section permits service of process on persons whom the defendant has authorized to accept service for him. Appellant argues that Ms. Riley ostensibly authorized Sayes to accept service of process for her. Under California law, ostensible authority is such as a principal, intentionally or by want of ordinary care, causes or allows a third person to believe the agent to possess. Cal. Civ. Code § 2317 (Deering 1981). A California court has recognized that ostensible authority to accept service is created only by acts or declarations of the principal. See Dill v. BerquistConstr. Co., 24 Cal. App. 4th 1426, 29 Cal. Rptr. 2d 746 (1994). The record reveals no acts by which Ms. Riley authorized Sayes to accept service for her. Appellant does cite Warner Bros. Records, Inc. v. Golden West Musical Sales, 36 Cal. App. 3d 1012, 112 Cal. Rptr. 71 (1974), where the court ruled that, under the particular circumstances of that case, a fact question existed as to whether an attorney was an ostensible agent for service of process. However, that case is distinguishable from the case at bar because the attorney who accepted service there had an established, enduring relationship with the defendants, a factor that is not present in this case.

In light of the above, we conclude that appellant did not serve process on Ms. Riley in accordance with California law.

Next, we address appellant's argument that Ms. Riley was effectively served under Ark. Code Ann. § 16-58-132 (1987). That statute provides that, when the addressee refuses to accept delivery of process by certified or registered mail and her refusal is stated on the postal service return receipt, she is deemed to have been served. There is no evidence in this case of either a refusal of service or a return receipt reflecting a refusal. Therefore, the statute is inapplicable.

We turn now to appellant's argument that Ms. Riley waived service of process. She first contends that Ms. Riley waived service by making a general appearance in the case rather than a special appearance contesting jurisdiction. Prior to the adoption of our rules of civil procedure, objections to defects in service of process were required to be made by special appearance. Searcy Steel Co. v. Mercantile Bank of Jonesboro, 19 Ark. App. 220, 719 S.W.2d 277 (1986). However, the distinction between general and special appearances has been abolished. Id. See also Arkansas Dep't of Human Servs. v. Farris, 309 Ark. 575, 832 S.W.2d 482 (1992). An objection to service of process is now made by asserting it in a motion to dismiss or in an initial responsive pleading, pursuant to Ark. R. Civ. P. 12(b)(5) and 12(h)(1) (2004). Ms. Riley thus proceeded correctly when she objected to insufficient service of process in her answer.2

Appellant also argues that Ms. Riley waived any objection to service of process by propounding discovery after the answer was filed and by waiting five months after the answer was filed to move to dismiss the case. These arguments are answered by the cases of Wallace v. Hale, 341 Ark. 898, 20 S.W.3d 392 (2000), and Farm Bureau Mutual Insurance Co. v. Campbell, 315 Ark. 136, 865 S.W.2d 643 (1993). In Wallace v. Hale, process was never served on Hale, but he filed an answer, reserving an objection to insufficiency of service of process. Approximately four months later, after the time for service of process had expired, he filed a motion to dismiss on that basis, which the trial court granted. The supreme court affirmed on the ground that Hale preserved the defense by including it "in his original responsive pleading and by further filing a motion to dismiss once the time for service of process had expired." Wallace v. Hale, 341 Ark. at 900, 20 S.W.3d at 394.

In Farm Bureau Mutual Insurance Co. v. Campbell, the Campbells sued Farm Bureau and mistakenly served process on the Secretary of State rather than on Farm Bureau's designated domestic agent. They also mailed a courtesy copy of the complaint to Farm Bureau's attorney. The attorney filed a responsive pleading in which he reserved objections to insufficient service. The attorney then proceeded to propound discovery, answer discovery, and file an amended answer. Several months later, Farm Bureau filed a motion to dismiss for insufficient service of process, which the trial court granted. The Campbells argued that Farm Bureau waived that defense by proceeding with discovery and filing an amended complaint. The supreme court affirmed the dismissal and stated:

[T]he Campbells, as noted by the trial court, may well have been lulled into believing Farm Bureau intended to defend the suit on its merits because Farm Bureau participated in discovery procedures. Nonetheless, this court has specifically held that in deciding whether a defendant has waived his rights and entered his appearance, the determining factor is whether the defendant seeks affirmative relief, that is, whether the pleading filed is more than a defensive action. An example of such affirmative action is where a defendant filed a cross-complaint. Here, Farm Bureau asked for no affirmative relief.

[A]lthough this court has said that a defendant may, by his conduct, be estopped to object to the manner in which service is made, the court also cautioned that estoppel does not apply where the defect in the summons itself is so substantial as to render the process void. Here, as discussed in the trial court's findings set out hereinabove, the Campbells admitted that no service of summons whatever was made on Farm Bureau, thus, estoppel simply is inapplicable in these circumstances. For the reasons given above, we hold the trial court was clearly correct in dismissing the Campbells' complaint for insufficiency of process.

Farm Bureau v. Campbell, 315 Ark. at 141, 865 S.W.2d at 645-46 (citations omitted).

Likewise, in the case at bar, Ms. Riley sought no affirmative relief, and she asserted insufficiency of service in her original responsive pleading. Further, no service of summons was made on Ms. Riley, thus negating any claim of estoppel. Therefore, as in Campbell, the defense of insufficient service of process was not waived.

Appellant cites Hamm v. Office of Child Support Enforcement, 336 Ark. 391, 985 S.W.2d 742 (1999), and Arkansas Department of Human Services v. Farris, supra, in support of her argument that the defense was waived, but those cases are distinguishable. In Hamm and Farris, the defendants did not object to insufficient service or lack of personal jurisdiction until after their original responsive pleading had been filed. By contrast, in the case at bar, an objection to insufficient service was made in the initial responsive pleading.

Based on the above, we conclude that the trial court was correct in dismissing appellant's complaint against Ms. Riley for insufficient service of process. The only question that remains is whether the dismissal should have been without prejudice due to the application of the saving statute.

Under Arkansas law, if any action is commenced within the statute of limitations period and the plaintiff suffers a nonsuit, he may commence a new action within one year after the nonsuit is suffered. See Ark. Code Ann. § 16-56-126 (1987). This is known as the saving statute, which our courts have held should be given a liberal and equitable construction. See Cole v. First Nat'l Bank, 304 Ark. 26, 800 S.W.2d 412 (1990).

The key under this issue is whether appellant "commenced" her action in a timely fashion, as the statute requires. Appellant filed her complaint on August 15, 2002, exactly three years after the accident occurred, so the filing of the complaint was timely. However, even if a plaintiff timely files her complaint, if she fails to complete service on the defendant within 120 days or obtain an extension, her action has not been commenced and the saving statute does not apply. See Hicks v. Clark, 316 Ark. 148, 870 S.W.2d 750 (1994); Green v. Wiggins, 304 Ark. 484, 803 S.W.2d 536 (1991); NEF v. AG Servs. of Am., 79 Ark. App. 100, 86 S.W.3d 4 (2002). That is the situation in this case. Appellant filed a timely complaint, but she failed to complete service on Ms. Riley within 120 days. Thus, she did not commence her action, and the saving statute does not apply.

An exception to the above rule may occur where a plaintiff timely completes service that later turns out to be invalid. See Forrest City Mach. Works v. Lyons, 315 Ark. 173, 866 S.W.2d 372 (1993). However, where there has been a total failure to meet the requirements of Rule 4(i), as there is in the case at bar, the plaintiff has not commenced the action and is prevented from invoking the saving statute. Hicks v. Clark, supra. We therefore affirm the dismissal of appellant's complaint with prejudice.

Affirmed.

Stroud, C.J., and Gladwin, J., agree.

1 The trial court also dismissed appellant's complaint against appellee Andrew Riley for failure to state facts upon which relief can be granted. Mr. Riley's dismissal is not at issue on appeal.

2 Appellant incorrectly contends that Ms. Riley's assertion of insufficiency of process in her answer did not comply with Ark. R. Civ. P. 8(e)(1), which requires that each averment in a pleading be direct and stated in ordinary and concise language. Rule 8(e)(1) is designed to avoid verbosity in pleadings. See Reporter's Note to Rule 8. Ms. Riley's assertion of the defense was direct and to the point, and clearly stated that she was affirmatively pleading insufficiency of service of process.