Hessee v. Simoff Horse Transp., LLC

2020 Ark. App. 229

599 S.W.3d 694

Richard HESSEE, Appellant

v.SIMOFF HORSE TRANSPORT, LLC, Appellee

No. CV-19-472

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered: April 15, 2020

Barber Law Firm, PLLC, by: Michael L. Alexander and Rachel E. Hildebrand, Little Rock, for appellant.

Gary M. Lax, Hot Springs, for appellee.

ROBERT J. GLADWIN, Judge Richard Hessee appeals the order of the Garland County Circuit Court denying his motion to dismiss Andrew Simoff Horse Transport, LLC's (Simoff) Application for Registration of Foreign Judgment (Application) and finding that the foreign judgment was entitled to full faith and credit in Arkansas. Hessee argues that (1) the circuit court erred in finding that service of process in the Delaware action was sufficient for purposes of registration of the foreign judgment; (2) the circuit court erred in failing to make a determination as to whether the Delaware court had personal jurisdiction over Hessee; (3) the underlying default judgment is void because the Delaware state court lacked personal jurisdiction over Hessee; (4) the circuit court erred in registering the foreign default judgment without a hearing; and (5) the Delaware default judgment was not eligible for registration under the Uniform Enforcement of Foreign Judgments Act (UEFJA). We affirm.

I. Facts and Procedural History

Hessee, an Arkansas resident, rented a place where he stayed in New Castle, Delaware, from April to late August 2017, while his racehorses were training and racing at Delaware Park Racetrack. One of Hessee's trainers, Michael Catalano, states in an affidavit that during the time he worked training Hessee's horses at Delaware Park, Hessee lived in New Castle, Delaware, and was at Delaware Park every day. He stated that he had personal knowledge that Hessee made all shipping arrangements for transporting his horses to Delaware directly with Simoff.

A billing inquiry prepared by Simoff reflects that Hessee's horses were being shipped to and from Delaware Park from April 4 through May 2, at which point Hessee owed Simoff $16,825. Simoff sued Hessee in the Delaware Justice of the Peace Court for New Castle County, Court No. 13 on October 12. On December 19, 2017, Simoff filed an affidavit of service, stating:

1) I am Andrew Simoff, plaintiff or person authorized to act for plaintiff in this case.

....

3) On 11/21/17, I mailed to defendant by returned receipt mail a copy of the summons and complaint. I also included J.P. Civil Form No. 7 (Answer) and any additional materials originally filed with the Court. The form of mail service I used was Certified.

4) On 12/18/17, I received returned receipt from the Post Office and that receipt was returned marked "unclaimed" from the Post Office, the envelope is attached to this affidavit.

5) If returned "received" or "refused," the return receipt from the Post Office is attached to this affidavit. If returned "unclaimed" from the Post Office, the envelope is attached to this affidavit.

6) Further (only if the return receipt was returned "unclaimed"), I have sent a second mailing to the defendant at the address above on 12/19/17 via first class mail with a certificate of service from the Post Office. The certificate of mailing is attached.

In support of a request for a default judgment against Hessee, Simoff provided the following affidavit:

My name is Andrew Simoff and I am the principal of Simoff Horse Transport. In the course of my operation, I provided services to the Defendant Richard Hessee in Delaware by transporting horses to various racing venues. I am personally aware that Richard Hessee rented a place in Delaware and spent many days at Delaware Park Racetrack. The invoice attached hereto is true and correct and is an accurate account of the services that were provided to him for which he did not pay.

On May 10, 2018, the Delaware court entered a default judgment against Hessee, the notice of which states:

Because the above-named defendant(s), after receiving proper service of process, have failed to timely file an answer or appear for a scheduled trial and the above named plaintiff(s) have filed an affidavit in support of a default judgment, the court pursuant to J.P. Civil Rule 55 has entered a judgment by default as follows: Judgment Amount $15,000.00,¹ Court Costs $50.00

On August 8, Simoff filed the Application in the Garland County Circuit Court. The Application listed Hessee's address as 132 Running Deer Lane, Royal, Arkansas, 71968, the same address used in the Delaware proceedings. Hessee filed a motion to dismiss the Application on August 27.² Simoff responded to the motion on September 5. Hessee did not request a hearing on his motion, and on February 25, 2019, the circuit court, via letter, advised counsel for the parties that it had determined that Simoff had complied with the laws of Delaware in obtaining its judgment, which was entitled to full faith and credit in Arkansas. A formal order was entered on February 27,

As [Simoff] complied with the laws of the State of Delaware in obtaining its judgment against [Hessee], the judgment is entitled to full faith and credit in the State of Arkansas and therefore, the Motion to Dismiss is denied.

Hessee timely filed his notice of appeal on March 11, and this appeal followed.

II. Standard of Review

A court's review of an appeal regarding registration of a foreign judgment requires interpretation of Arkansas statutes. Agility Fin. Credit Union v. Largent , 2018 Ark. App. 358, at 4, 552 S.W.3d 471, 473, reh'g denied (July 18, 2018) (affirming circuit court's decision that judgment creditor's registration of foreign judgment was null and void). Accordingly, the standard of review is de novo. Id.

III. Discussion

A. Was Service of Process in the Delaware Action Sufficient to Register the Judgment?

Hessee submits that at the circuit-court level, Simoff admitted that Hessee "was never personally served or sign[ed] for a registered or certified letter." Instead, Simoff claimed the following was proper service:

[Simoff] sent a certified mailing to [Hessee] on November 21, 2017[,] which was ultimately returned unclaimed on December 18, 2017. On December 19, 2017, [Simoff] sent a second mailing via first class mail with a certificate of mailing from the United States Post Office. (See Exhibit A). This was proper service in the State of Delaware and, while not necessary, substantially complies with Rule 4 of the Arkansas Rules of Civil Procedure.

Hessee claims that Simoff offered nothing more than its own conclusion, failing to explain how applicable rules or caselaw support its position that service was proper. An exhibit attached to Simoff's response brief showed that Simoff received a return receipt marked "unclaimed" from the United States Postal Service and that it subsequently sent a second mailing via first class to 132 Running Dear Lane, Royal, Arkansas 71968. Because Simoff failed to demonstrate how this documentation demonstrates proper service on Hessee, Hessee claims that the circuit court erred in failing to dismiss the Application and in allowing Simoff to register its foreign judgment.

We disagree and initially note that the record reflects that service by certified mail, return receipt requested, was attempted in Delaware. When Hessee did not pick up the package, it was returned "unclaimed." The record also reflects that Simoff sent a second mailing to Hessee via first class mail with a certificate of service from the post office.

Arkansas Code Annotated section 16-66-602 (Repl. 2005), entitled "Filing and Status of Foreign Judgments," provides:

A copy of any foreign judgment authenticated in accordance with the act of Congress or the statutes of this state may be filed in the office of the clerk of any court of this state having jurisdiction of such an action. The clerk shall treat the foreign judgment in the same manner as a judgment of a court in this state. A judgment so filed has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a judgment of a court of this state and may be enforced or satisfied in like manner.

There is no argument before us that Simoff failed to properly present the judgment before the Garland County Circuit Court. The issue before this court is whether the default judgment against Hessee was properly obtained pursuant to Delaware law.

Delaware Justice of the Peace Courts Rule 4–Civil sets forth several alternatives for service: (1) personally; (2) by leaving copies at the dwelling house or abode; (3) by certified mail, return receipt requested; (4) by first class mail with certificate of mailing; or (5) by delivering to an agent. Del. J.P. Civ. R. 4(f)(1)(I) (2017).

Rule 4(f)(1)(V)(A) states that upon a defendant referred to in subsection (f)(1)(I) of the rule, it is sufficient if the summons, complaint, and affidavit are served—in a civil action for debt, service is made by certified mail, return receipt requested—service is complete when signed for by the defendant, or by some person of suitable age and discretion acting as agent for the defendant, or with the word "unclaimed" or "refused" noted thereon by postal authorities. (Emphasis added.)

Moreover, Rule 4(h) applies when service is secured pursuant to the Delaware long-arm statute, codified at Delaware Code Annotated Title 10, section 3104 :

In an action in which the plaintiff serves process pursuant to [ § 3104 ], the defendant's return receipt and the affidavit of the plaintiff or the plaintiff's attorney of the defendant's nonresidence and the sending of a copy of the complaint with the notice required by statute shall be filed with the Court within 10 days of receipt by plaintiff or the plaintiff's attorney of the defendant's return receipt.

Subsection 3104(d) of the long-arm statute provides that when the law of the State authorizes service of process outside the State, the service, when reasonably calculated to give actual notice, may be made by

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