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Ladd v. PS Little Rock, Inc.

Court of Appeals of Arkansas, Division I

October 26, 2016

TALMA LADD APPELLANT
v.
PS LITTLE ROCK, INC., AND NICK NAYLOR D/B/A NAYLOR FLOORING APPELLEES

         APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, NINTH DIVISION [NO. 60CV-14-2087] HONORABLE MARY SPENCER MCGOWAN, JUDGE REVERSED AND REMANDED

          Johnson & Vines, PLLC, by: James "Chris" McNeal and J. Andrew Vines, for appellant.

          The Overton Firm, LLC, by: J. Don Overton, for appellee PS Little Rock, Inc.

          Bryce Brewer Law Firm, by: Bryce Brewer; and Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellee Nick Naylor d/b/a Naylor Flooring.

          KENNETH S. HIXSON, Judge

         Appellant Talma Ladd appeals from an order dismissing with prejudice her complaint against appellee PS Little Rock, Inc. (Pro Source). The trial court dismissed Talma's complaint based on its finding that service on Pro Source was defective for various reasons. On appeal, Talma argues that she properly served Pro Source and that the order of dismissal should therefore be reversed. We agree, and we reverse the order of dismissal and remand for further proceedings.

         Talma instituted this action in 2013 when she filed her initial complaint against Pro Source and separate defendant Nick Naylor d/b/a Naylor Flooring (Naylor).[1] The trial court subsequently entered orders dismissing Talma's complaint against Pro Source and Naylor without prejudice.

         Talma timely refiled her complaint in 2014 against Pro Source and Naylor. In her complaint, Talma alleged that she contacted Pro Source to perform certain floor work in her home. Pro Source allegedly persuaded Talma to retain the services of Naylor. On the recommendation of Pro Source, Talma hired Naylor to perform the floor work. Talma alleged that Naylor failed to perform the floor work in a workmanlike manner, which caused damages to her home. Talma filed suit against Naylor for negligence and breach of contract. Talma also sued Pro Source for negligence, deceit, and a violation of the Arkansas Deceptive Trade Practices Act, averring that Pro Source knew, or should have known, that Naylor lacked the ability to perform the floor work in a workmanlike manner.

         Talma's summons and complaint were purportedly served on Pro Source's registered agent, The Corporation Company, on June 17, 2014. Pro Source filed a motion to dismiss Talma's complaint for various reasons, including that proper service had not been perfected and, therefore, that the trial court lacked jurisdiction over Pro Source. Talma subsequently filed a motion to strike Pro Source's motion to dismiss and for default judgment, and in the alternative a response to the motion to dismiss. In Talma's motion, she asserted that service of the summons and complaint had been perfected, and further that Pro Source had failed to file an answer within thirty days of service as required by Arkansas Rule of Civil Procedure 12(a).

         The record reflects that the summons and complaint were sent by certified mail to Pro Source c/o The Corporation Company at 124 West Capitol Avenue, Suite 1400, Little Rock, AR 72201. Talma obtained the identity of Pro Source's registered agent, The Corporation Company, as well as its address, from information provided by the Arkansas Secretary of State. The summons and complaint were received on June 17, 2014, as evidenced by the signature "CT Corp" in the signature block of the return receipt and "6-17-14" as the printed date of delivery on the receipt. However, the post office return receipt indicated that delivery was made to Suite 1900 and not Suite 1400 of the identified street address. In the typed address on the return receipt, the "4" had been changed to a handwritten "9." In the "proof of service" dated July 1, 2014, Talma's attorney represented, "I delivered the summons and complaint to The Corporation Company, an agent authorized by appointment or by law to receive service of summons on behalf of PS Little Rock, Inc. on 6-17-14."

         On September 17, 2015, the trial court entered an order dismissing with prejudice Talma's complaint against Pro Source. The trial court made the following findings in support of its order:

[T]he Plaintiff filed a summons with some entries for the proof of service. As evidenced by the Plaintiff's own filing, the Plaintiff entered the wrong address for the purported agent of the Defendant Pro Source; Plaintiff's counsel incorrectly indicated that he had personally delivered the summons and complaint to the purported agent when in fact he attempted to mail these pleadings via certified mail; the Plaintiff did not provide receipts for the certified mailing; the return receipt was not stamped by the post office, and no signature or name as to who received the document appears on the return receipt. The service in this case on the Defendant Pro Source is obviously defective.

         Based on its finding that there had been no valid service within 120 days of the filing of the complaint as required by Arkansas Rule of Civil Procedure 4(i), the trial court dismissed Talma's complaint against Pro Source, and because the case had been previously dismissed, the dismissal was with prejudice. See Ark. R. Civ. P. 41(b).

         Also, on the same day, the trial court entered a separate order dismissing Talma's complaint against Naylor with prejudice. That dismissal was based on Talma's ...


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