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Tuccillo v. Adkins & Associates, Inc.

Court of Appeals of Arkansas, Division II

January 30, 2019

ROY TUCCILLO APPELLANT
v.
ADKINS & ASSOCIATES, INC. APPELLEE

          APPEAL FROM THE POPE COUNTY CIRCUIT COURT [NO. 58CV-14-182] HONORABLE DENNIS CHARLES SUTTERFIELD, JUDGE AFFIRMED

          Sanford Law Firm, PLLC, by: Josh Sanford, for appellant.

          Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellant.

          PHILLIP T. WHITEAKER, JUDGE

         Roy Tuccillo appeals a judgment of the Pope County Circuit Court finding him personally liable to appellee Adkins & Associates, Inc. ("Adkins"), for $100, 800, plus interest and attorney's fees. On appeal, he argues that the circuit court erred in two respects: (1) in finding that issuance of the summons was properly effectuated pursuant to Arkansas Rule of Civil Procedure 4(a) (2018); and (2) in finding that he personally guaranteed the debts of his company, Anchor Frozen Foods ("Anchor"). We find no error and affirm.

         I. Background

         Adkins is an Arkansas-based poultry broker. Tuccillo is the president and majority stockholder of a New York-based company, Anchor Frozen Foods. Adkins began selling frozen chicken to Anchor in 2009. To accomplish shipment orders without prepayment, Adkins required Anchor to complete a "Customer Profile Form." Adkins forwarded the form to Anchor, and Anchor returned the form completed with Tuccillo's signature at the bottom.

         In March 2012, Anchor ordered 60, 000 pounds of frozen chicken from Adkins with a total purchase cost of $100, 800. Adkins shipped the chicken to Anchor, but Anchor objected to the weight of the goods and refused to pay. Adkins initially attempted collection against Anchor.[1] When those efforts failed, Adkins filed a complaint against Tuccillo, asserting that he had personally guaranteed payment of the Anchor account. Tuccillo answered Adkins's complaint, admitting that Anchor purchased chicken from Adkins but denying that he personally guaranteed payment for Anchor's debts. In addition, Tuccillo asserted insufficiency of service of process as an affirmative defense.[2]

         The circuit court was essentially called on to decide two issues: (1) Was Tuccillo properly served under Rule 4(a) of the Arkansas Rules of Civil Procedure? and (2) Did Tuccillo personally guarantee payment for Anchor? The circuit court found that Tuccillo had been properly served. The court also determined that Adkins had proved the validity of Tuccillo's signature on the guarantee agreement; alternatively, the court found that by his conduct, Tuccillo was estopped from denying the validity of the agreement. The circuit court entered judgment finding that Tuccillo was indebted to Adkins in the amount of $100, 800, plus interest and attorney's fees. Tuccillo timely appealed.

         II. Issuance of Summons

         In his first argument on appeal, Tuccillo argues that the circuit court erred in finding that service of process in this case complied with Rule 4(a) of the Arkansas Rules of Civil Procedure. To address this argument, we provide more details concerning the filing of Adkins's complaint, the issuance of summons, and the service on Tuccillo.

         Adkins filed its complaint on June 20, 2014. That same day, the Pope County circuit clerk issued a summons informing Tuccillo that the lawsuit had been filed against him. Adkins began its efforts to serve Tuccillo, but these efforts proved difficult. Adkins was required to file multiple motions for extension of time to complete service, each of which was granted.[3]A New York-based process server finally hand-delivered a copy of a summons and complaint on Tuccillo on December 13, 2016. The summons that was eventually served, however, bore a date of June 8, 2016, not the original summons date of June 20, 2014. Tuccillo contends that service on him of a summons dated 719 days after the filing of the complaint was in violation of Rule 4(a) of the Arkansas Rules of Civil Procedure.

         Rule 4(a) sets out the requirement for the issuance of a summons and provides that "[u]pon the filing of the complaint, the clerk shall forthwith issue a summons and cause it to be delivered for service to a person authorized by this rule to serve process."[4] Here, the Pope County circuit clerk issued a summons on June 20, 2014, the date of the filing of the complaint. We conclude that this action of the clerk satisfies the language of Rule 4(a) requiring the summons to issue "forthwith."

         Tuccillo argues on appeal that he was not served with the summons that had been issued forthwith upon the filing of the lawsuit, on June 20, 2014. Instead, he asserts that he was served with a "completely different" summons dated June 8, 2016.[5] Tuccillo asserts that Adkins served him with a summons dated 719 days after the filing of the complaint, "in violation of the ...


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