Reichardt v. Creasey
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Cite as 2010 Ark. App. 736
ARKANSAS COURT OF APPEALS
DIVISION IV
CA10-319
No.
NOVEMBER 3, 2010
MICHELLE REICHARDT,
INDIVIDUALLY and
AS ADMINISTRATOR OF THE
ESTATE OF ASHLEY TOSH,
DECEASED
APPELLANT
Opinion Delivered
V.
HONORABLE TIMOTHY M.
WEAVER, JUDGE
ANTHONY CREASEY
AFFIRMED
APPEAL FROM THE
INDEPENDENCE COUNTY
CIRCUIT COURT
[CV-2009-73-4]
APPELLEE
RITA W. GRUBER, Judge
Michelle Reichardt, individually and as administrator of the estate of her daughter
Ashley Tosh (deceased), appeals the circuit court’s dismissal of her wrongful-death claim
against Anthony Creasey. Reichardt contends that the trial court erred in granting Creasey’s
motion to dismiss with prejudice for insufficiency of process and insufficiency of service of
process. We find no error and affirm.
Under Ark. R. Civ. P. 4(a) (2010), the clerk must issue a summons upon the filing of
a complaint. Rule 4(b) mandates the form of the summons, and Rule 4(d) governs personal
service inside Arkansas. In the method of service that Reichardt attempted, the plaintiff or the
plaintiff’s attorney may serve the summons and complaint by mail “addressed to the person
to be served with a return receipt requested and delivery restricted to the addressee or the
Cite as 2010 Ark. App. 736
agent of the addressee.” Ark. R. Civ. P. 4(d)(8)(A)(i) (2010). “Service” pursuant to 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 a copy of the summons and complaint and a
notice that despite such refusal the case will proceed and that judgment by default may
be rendered against him unless he appears to defend the suit.
Ark. R. Civ. P. 4(d)(8)(A)(ii) (2010) (emphasis added).
Arkansas law is long settled that service of valid process is necessary to give a court
jurisdiction over a defendant. Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701,
120 S.W.3d 525 (2003). Our case law is equally well settled that statutory service
requirements, being in derogation of common-law rights, must be strictly construed and
compliance with them must be exact; the same reasoning applies to service requirements
imposed by court rules. Id.
Meeks v. Stevens, 301 Ark. 464, 468, 785 S.W.2d 18, 20 (1990), a case of first
impression, held that silence or inaction may be presumed to be “token consent” elsewhere
in the law, but that a party’s failure to claim certified mail does not reach the level of
affirmative action suggested by definitions of “refuse” under Rule 4(d)(8)(A). A failure to act
affirmatively does not meet the explicit requirements of Rule 4(d)(8)(A), which safeguard
against the harshness of default judgment:
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Cite as 2010 Ark. App. 736
Clearly, the rule requires a “refusal” of the mailed notice before default may be
entered. The question dispositive of this appeal is whether under these facts the
“unclaimed” mail returned by the postal department is “refused” mail within the
meaning of Rule 4(d)(8)(A).
....
With respect to Rule 4(d)(8)(A), the active nature of refusal is spelled out with
care. The record must contain “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 . . . .”
301 Ark. at 467, 785 S.W.2d at 20.
Here, Reichardt filed her wrongful-death complaint on February 27, 2009, alleging
that Creasey negligently caused the May 16, 2006 motor-vehicle accident that resulted in
Tosh’s death. On July 8, 2009, Creasey filed a motion to dismiss with prejudice. He pled as
affirmative defenses insufficiency of process and insufficiency of service of process;
additionally, he asserted that the dismissal should be with prejudice because the three-year
statute of limitations had run. Reichardt timely filed a response and accompanying brief,
asserting that service was timely and properly served. Three exhibits were attached to her
response.
Exhibits 1 and 2 are separate envelopes addressed to Creasey and sent by United States
Postal Service (USPS) certified mail, return receipt requested. Each bears USPS notations that
delivery was attempted and that notices were left for Creasey on various dates; each has a
check-mark showing the mail as “ UNCLAIMED” rather than “ REFUSED”; and each was sent
back to the return address on the envelope, the law firm of Reichardt’s counsel. Exhibit 1,
post-marked March 3, 2009, is addressed to Creasey at a Sulphur Rock residence; delivery
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Cite as 2010 Ark. App. 736
was attempted on both March 4 and March 11, 2009, and the date of return to counsel was
March 30, 2009. Exhibit 2, addressed to Creasey at a Batesville residence, is post-marked June
17, 2009; it shows attempted deliveries on June 18 and 23, 2009, and a return to Reichardt’s
counsel on July 3, 2009.
Exhibit 3, a one-page letter from Reichardt’s counsel to Creasey at the Batesville
address, includes the words CERTIFIED MAIL/ RETURN RECEIPT REQUESTED. The letter reads
as follows:
Pursuant to Rule 4 of the Arkansas Rules of Civil Procedure, enclosed herein
are the following two documents for service upon you individually:
1.
Original of a Summons issued by the Clerk of Independence
County; and
2.
A filed copy of the Complaint in the captioned case.
Please note that you are required to respond to the complaint within twenty
days of receipt of service of the enclosed Summons.
Reichardt argued in a response brief that Creasey was sent two certified letters at
different addresses, each letter advising him of the filing of the suit and enclosing a copy of the
summons and complaint. She argued that service was deemed effective June 16, 2009, when
notice of the second certified letter was left for Creasey and when her attorney sent to him
by regular U.S. mail a letter with information identical to that in the certified letter to the
same address. She concluded that the date of effective service was therefore within the 120day period allowed for service under Rule 4(i).
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Cite as 2010 Ark. App. 736
Creasey replied to Reichardt’s response, arguing that the certified mailings of Exhibits
1 and 2 were “unclaimed” rather than “refused” under Meeks, supra, and that any mailing
afterward fell short of the requirements of Rule 4(d)(8)(A). He concluded that Reichardt had
thus failed to serve him within 120 days of filing her complaint, that the statute of limitations
had run, and that dismissal should be with prejudice.
On November 5, 2009, both parties appeared before the circuit court for a hearing on
the motion to dismiss for lack of service. Creasey argued that Meeks v. Stevens made a clear
distinction between unclaimed and refused mail, noting that strict compliance is required for
service and that only if mail is refused does it satisfy due process and amount to good service.
He also contended that the statute of limitations had run on May 16, 2009.
Reichardt contended that Meeks is “wrong” because it enables a defendant to simply
not claim a certified letter even when he or she knows the letter’s content and purpose. She
complained that decisions “as to whether service was refused or simply not claimed” were
being made by the USPS, which did not know the Meeks distinction in terms of due process.
She also argued that under the “mailbox rule,” there was a presumption that Creasey had
received the first-class letter sent to him by regular U.S. mail.1
The circuit court observed that the certified mail in this case was marked
“ UNCLAIMED,” not “ REFUSED,” a difference that Ark. R. Civ. P. 4 clearly addresses, and that
1
The mailbox rule provides that “a letter placed in the mailbox or post office creates
a presumption that it was received.” Stewart v. State, 362 Ark. 400, 407, 208 S.W.3d 768, 773
(2005).
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Cite as 2010 Ark. App. 736
effective service occurs when mail is marked “refused” and is followed by regular mail. The
court, commenting that it could not read the mind of the defendant or the post office or
anyone else, found no indication of refusal and thus no service. Creasey’s motion to dismiss
with prejudice for insufficiency of process and insufficiency of service of process was granted.
Point on Appeal
Reichardt asserts that the present case calls into question the interpretation of strict
compliance with service requirements of Ark. R. Civ. P. 4(d) in cases where a defendant had
actual notice of a complaint and filed a timely response asserting defenses of insufficiency of
process and insufficiency of service of process, but where no default judgment was granted
against the defendant. She cites proposed Rule 4(k), a new subdivision entitled Substantial
Compliance, that was suggested by the Arkansas Supreme Court Committee on Civil Practice
and published for comment in Ark. Rules of Civil Procedure, 2010 Ark. 35 (per curiam). As
noted in “Suggested Addition to Reporter’s Notes, 2010 amendment,” the proposed
subdivision would reestablish under Rule 4 a substantial-compliance standard for service and
process in situations where no default has occurred.
Creasey responds in his brief that Reichardt did not serve him by mail in accordance
with Rule 4. He asserts that because Reichardt did not prove that service occurred within the
allowable 120 days, the statute of limitation for her wrongful-death action had run. He states
that Ark. R. Civ. P. 4 requires strict compliance and that in 2010 Ark. 288, a per curiam
opinion subsequent to 2010 Ark. 35, the supreme court declined to adopt the proposed
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Cite as 2010 Ark. App. 736
addition of subdivision (k) to Ark. R. Civ. P. 4.2 He points out that Reichardt did not make
this argument below, and that arguments not made to the circuit court will not be addressed
on appeal. Greenwood v. Anderson, 2009 Ark. 360.
Reichardt responds in a reply brief that her case is distinguishable from Meeks, supra.
We do not agree. Our supreme court has not deviated from its holding in Meeks that
“unclaimed” mail returned by the postal department is not “refused” mail for purposes of
Rule 4(d)(8)(A). Even when the result is harsh, as in the present case, we are powerless to
overturn any decision of our supreme court. See Vinson v. Ritter, 86 Ark. App. 207, 167
S.W.3d 162 (2004) (rejecting argument that this court should re-adopt supreme court’s former
standard of substantial compliance when dealing with defective summons).
The circuit court in the present case correctly applied Meeks to the facts before it. See
Ark. Rules of Civil Procedure, 2010 Ark. 35 (per curiam). We affirm the court’s dismissal of this
case with prejudice.
Affirmed.
ROBBINS, J., agrees.
HART, J., concurs.
JOSEPHINE L INKER H ART, Judge, concurring. I agree with the majority that the
supreme court’s decision in Meeks v. Stevens, 301 Ark. 464, 785 S.W.2d 18 (1990), requires
that we affirm this case. I write separately, however, because I believe that the case at bar
2
This subsequent per curiam was issued on June 3, 2010, which was after the date that
Reichardt filed her initial brief.
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Cite as 2010 Ark. App. 736
illustrates a problem with the Arkansas Rules of Civil Procedure and the state’s jurisprudence
on service of process.
As the majority noted, the Supreme Court Committee on Civil Practice recommended
that Arkansas Rule of Civil Procedure 4 be modified to allow “substantial compliance” with
service requirements where no default has occurred. I believe the instant case is the first since
the supreme court handed down its June 3, 2010 per curiam rejecting this proposed change.
In re Arkansas Rules of the Supreme Court and Court of Appeals; Rules of Appellate Procedure–Civil;
and Rules of Civil Procedure, 2010 Ark. 288. The harshness that the majority alludes to is the
dismissal of a wrongful-death suit, benefitting an alleged tortfeasor who had the perspicacity
to not accept service by certified mail. This result does not conform to my concept of justice.
I also believe that the basic premise of Meeks is fundamentally flawed. By quoting
Postal Service regulations to establish the difference between “refused” and “unclaimed” mail,
the supreme court has vested some anonymous postal worker with conclusive fact-finding
authority. I have to question the soundness of this decision.
In the Christmas classic, Miracle on 34th Street, Judge Henry X. Harper decides that Kris
Kringle is Santa Claus because a postal worker in New York decides to deliver mail addressed
to Santa Claus to Mr. Kringle. The result is Mr. Kringle is released from a mental hospital in
time to deliver his Christmas gifts. While this result makes for heart-warming holiday
entertainment, the result that we have to accept today is anything but heart warming. It is,
however, a gift to the slick and unscrupulous who avoid the reach of our justice system.
Perhaps it is time that our supreme court revisit this issue.
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