White v. Owen

2021 Ark. 31

617 S.W.3d 241

Scott WHITE and Jamie White, Appellants

v.Hunter OWEN and John Does 1–3, Appellees

No. CV-19-781

Supreme Court of Arkansas.

Opinion Delivered: February 18, 2021

Rainwater, Holt & Sexton, P.A., Little Rock, by: Jake M. Logan ; and Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellants.

Anderson Murphy & Hopkins, Little Rock, by: Jason J. Campbell, for appellees.

COURTNEY RAE HUDSON, Associate Justice

Appellants Scott and Jamie White appeal from the Pulaski County Circuit Court's order dismissing with prejudice their claims against appellee Hunter Owen. For reversal, the Whites argue that the circuit court erred in dismissing the suit based on defective service of process. Alternatively, they contend that the circuit court erred in dismissing the suit with prejudice when the savings statute applied. We affirm as modified.

This case stems from a motor-vehicle accident that occurred on August 22, 2015. The Whites filed a complaint against Owen on July 9, 2018, alleging claims of negligence and requesting damages for personal injuries. Prior to being served with the complaint and summons, Owen filed an answer to the complaint on August 17, 2018, wherein he admitted that he was "at all times relevant" a resident of Sherwood, Arkansas. Owen also asserted all affirmative defenses, including insufficiency of process and service of process.

On October 22, 2018, the Whites filed a motion for extension of time to serve Owen, claiming that they had made a good-faith attempt to serve him at his last four known addresses but had been unable to locate him. They requested an additional 120 days to obtain service. The circuit court granted the motion on October 23, 2018, and extended the time for service through February 19, 2019.

Owen filed a motion to dismiss the complaint on February 28, 2019. He alleged that on February 15, 2019, a process server had attempted service at Owen's mother's home located at 1808 Windridge Court in Sherwood, Arkansas. Although his mother, Jennifer Armour, explained that Owen did not reside at that address, the process server requested that Armour sign for the documents. Owen included an affidavit from his mother to this effect, as well as his affidavit attesting that he did not live at the residence, that he had not lived there since November 2017, and that he was not present when service was attempted. Instead, Owen averred that since September 2018, he has resided and received his mail at 3802 Kavanaugh Boulevard, Apartment 702, in Little Rock, Arkansas. He attached an electric bill and a paystub verifying his current residential address. Owen argued that he had not been properly or timely served and requested that the Whites’ complaint be dismissed pursuant to Rules 4(i) and 12(b)(5) of the Arkansas Rules of Civil Procedure.

In their response, the Whites claimed that they had hired two different process servers, attempted service through certified letter and restricted delivery, and ran searches for Owen's current residence. The Whites asserted that they believed they had perfected service on Owen and that even if they had not, their complaint should not be dismissed due to a technicality after the service deadline had passed. Attached to their response was an affidavit from Jerome Mitchell, one of their process servers. Mitchell stated that Owen's voter registration had listed the Sherwood address, and the Whites included an exhibit confirming that this address is listed on Owen's voter registration, which is dated March 27, 2014. The Whites also claimed that the Sherwood address was listed on the collision report from the accident. Mitchell averred that when he served the documents at the Sherwood address, Armour voiced no objection, never indicated that Owen did not reside there, and accepted service, stating that she would give the documents to Owen. The Whites further argued that even if the service was deemed defective, any dismissal should be without prejudice, allowing them to refile their complaint pursuant to the savings statute.

Owen filed a reply claiming that he had disclosed his current address on September 25, 2018, in response to the Whites’ first set of interrogatories and request for production of documents. The discovery response, which was attached as an exhibit, listed Owen's residence address as "3802 Kavanaugh Boulevard, Apt. 702, Little Rock, AR 72205." He asserted that process servers had been told by his mother on two separate occasions that he did not reside at her home in Sherwood and that the Whites had failed to perfect service under Ark. R. Civ. P. 4. He further argued that the Whites had failed to complete service to commence the action and that they were therefore not entitled to the benefit of the savings statute.

Following a hearing on the motion to dismiss, the circuit court entered an order on July 8, 2019, finding that the motion should be granted and dismissing the complaint with prejudice. The Whites filed a timely notice of appeal from the dismissal on July 26, 2019. On August 9, 2019, the Whites filed a "Rule 60 Motion to Reconsider," arguing that under the revised version of Ark. R. Civ. P. 4(k), any error as to the sufficiency of service of process shall be disregarded if there was substantial compliance and the defendant received actual notice and filed a timely answer. The circuit court did not rule on this motion. The court of appeals affirmed the circuit court's dismissal with prejudice, see White v. Owen , 2020 Ark. App. 356, 609 S.W.3d 1, and we granted the Whites’ petition for review. When we grant a petition for review, we treat the appeal as if it had originally been filed in this court. Dollar Gen. Corp. v. Elder , 2020 Ark. 208, 600 S.W.3d 597.

The Whites first argue that the circuit court erred by dismissing their complaint on the basis of defective service of process. They contend that leaving the documents with Owen's mother at the Sherwood address was consistent with the public records showing that he held her home out as his residence and was compliant with the 2019 version of Rule 4 that was in effect at the time of service. Owen responds that the Whites were required to comply with the rules of civil procedure in effect when they filed their complaint and that it would disturb his vested due-process rights to retroactively apply the newer version of the rule. Owen asserts that even if the 2019 version did apply, service was insufficient under the facts in this case.

We generally review a circuit court's decision to grant a motion to dismiss under an abuse-of-discretion standard. DeSoto Gathering Co., LLC v. Hill , 2018 Ark. 103, 541 S.W.3d 415. The construction of a court rule, however, is a question of law, which we review de novo. Id. When construing the meaning of a court rule, we use the same means and canons of construction that we use to interpret statutes. Tollett v. Wilson , 2020 Ark. 326, 608 S.W.3d 602. The primary rule of statutory construction is to give effect to the intent of the drafting body. 3 Rivers Logistics, Inc. v. Brown-Wright Post No. 158 of the Am. Legion, Dep't of Ark., Inc. , 2018 Ark. 91, 548 S.W.3d 137. We first construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. When the language of a statute is plain and unambiguous, we determine the drafter's intent from the ordinary meaning of the language used. Id.

Arkansas Rule of Civil Procedure 4, which contains the procedure for the issuance of summons and the service of process, was amended in 2018, and the amended version became effective on January 1, 2019. See In re Recommendations of the Comm. on Civ. Practice , 2018 Ark. 239, 2018 WL 11202769 (per curiam). The revisions pertinent to this case are found in subdivisions (f) and (k):

(f) Personal Service Inside the State. Service of process shall be made inside the state as follows:

(1) Natural Persons. If the defendant is a natural person at least 18 years of age or emancipated by court order, by:

(A) delivering a copy of the process to the defendant personally, or if he or she refuses to receive it after the process server makes his or her purpose clear, by leaving the papers in close proximity to the defendant;

(B) leaving the process with any member of the defendant's family at least 18 years of age at a place where the defendant resides; or

(C) delivering the process to an agent authorized by appointment or by law to receive service of summons on the defendant's behalf.

....

(k) Disregard of Error; Actual Notice. Any error as to the sufficiency of process or the sufficiency of service of process shall be disregarded if the court determines that the serving party substantially complied with the provisions of this rule and that the defendant received actual notice of the complaint and filed a timely answer.

Ark. R. Civ. P. 4(f) & (k) (2019). According to the reporter's notes to subdivision (f),

In paragraph (1)(B), the phrase "a place where the defendant resides" replaces its counterpart in former paragraph (d)(1), "dwelling house or usual place of abode." The effect of this change is to overturn State Office of Child Support Enforcement v. Mitchell , 330 Ark. 338, 954 S.W.2d 907 (1997), which defined the latter phrase in terms of domicile: a person's "fixed permanent home, the place to which he has—whenever absent—the intention of returning." Id. at 344, 954 S.W.2d at 910. Residence and domicile are not synonymous; a person can have multiple residences but only one domicile. See Leathers v. Warmack , 341 Ark. 609, 19 S.W.3d 27 (2000) ; Lawrence v. Sullivan , 90 Ark. App. 206, 205 S.W.3d 168 (2005). This change makes Arkansas practice consistent with that in other jurisdictions whose courts have rejected the narrow approach taken in Mitchell . See, e.g. , Nat'l Dev. Co. v. Triad Holding Corp. , 930 F.2d 253 (2d Cir. 1991) ; United States v. Tobins , 483 F. Supp. 2d 68 (D. Mass. 2007) ; Blittersdorf v.

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