FROM THE PULASKI COUNTY CIRCUIT COURT, NINTH DIVISION [NO.
60CV-14-2087] HONORABLE MARY SPENCER MCGOWAN, JUDGE REVERSED
Johnson & Vines, PLLC, by: James "Chris" McNeal
and J. Andrew Vines, for appellant.
Overton Firm, LLC, by: J. Don Overton, for appellee PS Little
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
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.
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). The trial court
subsequently entered orders dismissing Talma's complaint
against Pro Source and Naylor without prejudice.
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.
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).
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
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.
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).
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 ...