Harden v. Beck

2021 Ark. App. 481

639 S.W.3d 401

Suzanne HARDEN and Daniel Harden, Appellants

v.Heather BECK, Appellee

No. CV-20-652

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered December 8, 2021

Taylor & Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha C. Taylor, for appellants.

Wales Comstock, by: John Walker Williams ; and Mayer LLP, by: J. Barrett Deacon, Fayetteville, for appellee.

BRANDON J. HARRISON, Chief Judge

Suzanne and Daniel Harden appeal the Franklin County Circuit Court's order that dismissed with prejudice their complaint against Heather Beck. The Hardens argue that (1) the circuit court erred in dismissing the complaint because Beck's testimony was not credible and (2) the complaint should have been dismissed without prejudice. We affirm the circuit court's dismissal but reverse the "with prejudice" designation and remand with directions that the dismissal be entered without prejudice.

On 30 June 2016, the Hardens were injured in a car accident when their vehicle was hit from behind by Beck's vehicle. On 22 October 2018, the Hardens filed a complaint alleging that Beck had breached her duty of care to maintain control of her vehicle and caused personal injury and property damage. Susan Siemer, a private process server, indicated on the proof of service that she had "left the summons and complaint at the individual's dwelling house or usual place of abode at 51 Tate Levins Rd., Sylacauga, AL 35150 with Paige Whitfield, a person at least 14 years of age who resides there, on January 2, 2019 at 8:05 pm." After no answer was filed by Beck within thirty days after service, the Hardens moved for default judgment.

On 3 July 2019, Beck responded to the motion for default judgment and asserted as follows:

1. Defendant's counsel can ascertain, from the Court's file, that Plaintiffs filed their Complaint on or about October 22, 2019, and subsequently filed an Affidavit of Service on March 6, 2019, Defendant, however, was not served with Plaintiff's Complaint. Although an individual named Susan Siemer, who resides in Colorado Springs, Colorado, averred that she physically left the Summons and Complaint in Sylacauga, Alabama at 51 Tate Levins Road, Plaintiffs’ service was not properly perfected.

2. Furthermore, Plaintiffs did not perfect service of process within one hundred and twenty (120) days of filing the Complaint and issuance of the Summons, and thus, Plaintiffs are not entitled to a default judgment against Defendant.

3. Additionally, Arkansas’ three (3) year statute of limitations for negligence expired on June 30, 2019, without proper service of Plaintiffs’ Complaint, and thus, Plaintiffs’ claims are barred by the statute of limitations. Ark Code Ann. § 16-56-104.

Out of an abundance of caution, Beck also filed an answer to the complaint.

The Hardens replied and argued that the deadline for serving their complaint had been 19 February 2019 and that Beck had been properly served on 3 January 2019.¹ Beck's address had been identified as 51 Tate Levins Road, Sylacauga, Alabama, and the process server left the complaint and summons with Paige Whitfield, an individual over the age of fourteen at the residence of 51 Tate Levins Road, Sylacauga, Alabama, who identified herself as Beck's coresident. Rule 5 of the Arkansas Rules of Civil Procedure provides that service can be made upon a party by "leaving it at his dwelling house or usual place of abode with some person residing therein who is at least 14 years of age." The Hardens also noted that Beck had been served with their motion for default judgment via certified restricted mail at 51 Tate Levins Road, Sylacauga, Alabama, as evidenced by a return certificate signed by Beck on 20 May 2019. Attached to the reply was the proof of service and an affidavit of due diligence sworn by Heather McBroom of Precision Legal Services. In that affidavit, McBroom stated that in December 2018, she had identified two possible addresses for Beck—2690 Old Birmingham Hwy, #D, Sylacauga, AL, and 51 Tate Levins Rd., Sylacauga, AL. McBroom explained,

6. On January 3, 2019 I received an email from Bill Caputo that his process server, Susan Siemer, had served co-resident Paige Whitfield on 1/2/219 [sic] at the 51 Tate Levins Road address. He provided a description. but no relation to the defendant. I responded back to him to inquire if [text cuts off here][.]

7. The affidavit Bill Caputo provided did not specify the relationship to the defendant, however, service was affected per Colorado Rule 4.

The circuit court convened a hearing on the default-judgment motion on 9 July 2020. Beck testified that she currently lives at 690 Marble City Heights Circle in Sylacauga, Alabama, and that she has lived there for over a year. She said she moved out of the residence at 51 Tate Levins Road in April 2018, and in October 2018, she was living with a friend at 670 Marble City Heights Circle. Beck acknowledged that she had been in a relationship with Paige Whitfield and that in January 2019, she and Paige lived at 47 Tate Levins Road. She stated that the addresses on Tate Levins Road are around the corner from each other in a trailer park.

Beck did not remember receiving any paperwork from Paige and said that Paige had not received any documents for her while living at 47 Tate Levins Road. When shown the return receipt from May 2019 and asked if she recognized her signature, Beck said, "I would say the first one is mine but the last name—the last name does say Beck but it doesn't look like mine." She explained that she had signed for something at the post office and "[t]hat might have something to do with it," but she said that the signature on the return receipt was "not really" her signature. She agreed that the mail she signed for was addressed to 51 Tate Levins Road. However, she denied that she was receiving mail at that address. Instead, she said, "I was receiving it at 47 [Tate Levins Road]. Someone had given me a big pamphlet that was next door and I didn't know nothing about it. I didn't know what it was but they were next door and so I just went to the post office."

On cross-examination, Beck clarified that she had lived at 51 Tate Levins Road but moved out in April 2018, that she then lived at 670 Marble Heights, and that in December 2018 she and Whitfield moved into 47 Tate Levins Road, where she lived "for a long time." Her attorney introduced a lease agreement dated 10 December 2018 showing that Beck and Whitfield had agreed to rent 47 Tate Levins Road at a rate of $475 a month. Counsel also introduced three payment receipts that reflected rent payments in March 2018, April 2018, and January 2019; however, the Hardens’ attorney objected because the receipts did not identify any specific property or address and had not been authenticated.

The court overruled the objection and allowed the receipts.

Paige Whitfield testified that she and Beck had been living together at 47 Tate Levins Road in January 2019. Whitfield did not recall accepting a package from a process server or telling a process server that she was in a relationship with Beck. She said, "I was never handed any kind of documents. I never spoke to anybody."

From the bench, the circuit court stated,

[T]he most confusing part of all this is the fact this is some sort of trailer court, you know? And you have your proof of service for [the motion for default judgment], you know, and I found that to be relevant. Well, okay, she signed but that's not for service on the 3rd of January I think is what we're dealing with.

....

That's not for service on that date just to show that she lived at that particular residence and I think that's why you were offering that. Her testimony was that there was some sort of notice that she went down to the post office and picked up that writing. So that really got her residence—didn't get it beyond where you were to begin with. See, that's something the post office controlled. She had her name on something. I don't know if that's her signature but she testified it was, but was she living in 47 or 51 at the time? Just because of that, I'm going to make a finding service was not sufficient. I mean, this is going to cause a dismissal of the Complaint.

On 20 July 2020, the circuit court entered an order denying the motion for default judgment and dismissing the complaint with prejudice "[a]s the statute of limitations expired without proper service of process." On August 3, the Hardens filed a motion to set aside the July 20 order or, in the alternative, a motion for reconsideration. Their motion argued:

9. The Plaintiff offered evidence during the hearing that service was arguably attempted on the Defendant via service upon Paige Whitfield, a co-resident of the Defendant on or about January 2, 2019 via process server Susan Siemer.

10. Although Ms. Whitfield denies she was served, the testimony is undisputed that she resided with Defendant at the listed address in 2018 and lived within one lot from the listed address on January 2, 2019, which corroborates with the process server's Affidavit of Service.

....

13. Although it is in dispute that Paige Whitfield accepted service of the Complaint and Summons, the testimony supports that Ms. Whitfield and Ms. Beck resided together and previously resided at the address indicated on the Proof of Service. In addition, Ms. Beck admits she accepted certified restricted mail for 51 Lavin Tate [sic] which is the same address listed on the Proof of Service.

14. Furthermore, during the Defendant's testimony, the Court should take notice of the Defendant's demeanor and lack of credibility as she was unwilling to initially admit it was her signature and her name on the return certificate of service. This alone suggests the Defendant was not forthcoming regarding her notice of the Complaint.

The Hardens also asserted that if the complaint is dismissed, it should be without prejudice because the savings statute applied.

Beck responded that the testimony from both her and Paige...