JAMES L. STEWARD, JR., APPELLANT
ADAM KUETTEL, APPELLEE
APPEAL FROM THE BENTON COUNTY CIRCUIT COURT. NO. CV-12-270. HONORABLE XOLLIE DUNCAN, JUDGE.
Huffman Butler, PLLC, by: Bryan R. Huffman, for appellant.
Nick Churchill, for appellee.
JIM HANNAH, Chief Justice.
Appellant, James L. Steward, Jr., appeals the order of the Benton County Circuit Court denying his motion to set aside default judgment. On appeal, he contends that the circuit court erred in denying his motion to set aside default judgment because the judgment was void for insufficient service of process. Alternatively, Steward contends that the circuit court abused its discretion in refusing to set aside the default judgment due to mistake or excusable neglect on his part. Because we conclude that, under the facts of this case, the alternative method of service crafted by the circuit court was not reasonably calculated to give actual notice, we hold that the order granting default judgment was void, and we reverse the circuit court's order denying Steward's motion to set aside default judgment.
Following the February 13, 2009 death of his niece, Sarah Fennell, Steward launched a website, http://justice4sarah.wordpress.com/ (" Justice4Sarah" ), to express his dissatisfaction with the investigation of Fennell's cause of death. On February 16, 2012, appellee, Adam Kuettel, filed suit against Steward, alleging that Steward had published numerous defamatory statements about him concerning the death of Fennell on Justice4Sarah and other websites. Kuettel stated that all of Steward's statements about him were false and requested, inter alia, an injunction ordering Steward to remove the Justice4Sarah website from the Internet and to remove any other postings from the Internet he had made concerning Kuettel.
Through a LexisNexis Accurint search, counsel for Kuettel determined that Steward's last known address was 5713 Paula Road, Knoxville, Tennessee, 37912-1914. Two attempts to serve Steward were made at that address, but Steward no longer lived there. Counsel then attempted to contact Steward, as well as potential associates and relatives of Steward, via telephone, to ascertain Steward's address, but she was unsuccessful.
On April 13, 2012, Kuettel filed a " Motion for Service Under Rule 4(e)(5)," requesting that the circuit court permit service of process by emailing the summons and complaint to Steward at email@example.com, the address listed on the Justice4Sarah website. Kuettel averred that previous attempts at service were unsuccessful, and he stated that, after he had filed the lawsuit in this case, a reporter from the Benton County Daily
Record emailed Steward at firstname.lastname@example.org, and Steward responded to the email. Kuettel stated that, in addition to serving the summons and complaint via email, he would employ the use of Cyber Investigations Services, LLC, to ensure that the email and attached summons and complaint were in fact received. Attached to Kuettel's motion was an affidavit from Bruce Anderson, a licensed private investigator and managing member of Cyber Investigations. Anderson averred that, to ensure that Steward received the summons and complaint attached to the email, Cyber Investigations would include a tracking pixel in the email sent to Steward that would transmit a confirmation to the sender when (1) the email was opened by the recipient, and (2) the attachments, here, the summons and complaint, were opened by the recipient.
In an order entered April 17, 2012, the circuit court granted Kuettel's motion for alternative service, ruling that
Plaintiff [Kuettel] be permitted to serve Defendant James L. Steward, Jr., with the Summons and Complaint in this action via email to the email address of: email@example.com, and . . . that when Plaintiff receives confirmation via tracking pixel that the email giving notice of this lawsuit has been opened, sufficient service of process on the Defendant James L. Steward, Jr., will have occurred.
On June 21, 2012, Kuettel filed a motion for default judgment against Steward, requesting that the circuit court issue a declaratory judgment that Steward's statements about Kuettel were false and that the circuit court issue a permanent injunction prohibiting Steward and his agents, servants, representatives, employees, attorneys, successors and assigns, and all others in active concert or participation with Steward (" Restrained Parties" ) from making any false statements that defame or disparage Kuettel and mandating that the Restrained Parties take all action necessary to request removal from Internet search engines all defamatory, disparaging, libelous, and false statements about Kuettel that Steward had posted on the Internet. Kuettel contended that he was entitled to default judgment pursuant to Arkansas Rule of Civil Procedure 55(c)(1) (2014) because he had successfully served Steward by email on April 27, 2012, and because the deadline ...