CMS JONESBORD REHABILITATION, INC. v. Lamb

David Newbern, Justice,

dissenting. The question in this case is whether the service of process was defective. The Rule governing service by mail is Ark. R. Civ. P. 4(d)(8)(A) which provides, in relevant part:

Service of a summons and complaint upon a defendant . . . may be made by the plaintiff or an attorney of record for the plaintiff by any form of mail addressed to the person to be served with a return receipt requested and delivery restricted to the addressee or the agent of the addressee.

Because delivery was not “restricted to the addressee or the agent of the addressee,” there was no compliance with this provision.

The Court’s opinion makes much of the fact that a person authorized to receive restricted deliveries actually received the process, and the fact that in holding service was invalid because delivery was not restricted in Wilburn v. Keenan Companies, Inc., 298 Ark. 461, 768 S.W.2d 531 (1989), we mentioned that the recipient was not a person authorized to receive restricted delivery. That does not cure the problem. The fact remains that the plaintiff did not choose a form of mail with delivery restricted. The service was defective no matter who received it.

Rule 4(e)(3) was amended in 1983 to make requirements for mailing of service outside Arkansas consistent with the mailing requirements for service in the State. The Reporter’s Note accompanying the 1983 revision makes it clear with the “restricted delivery” contemplated is the method of delivery so described in postal service regulations. In the Wilburn case we discussed the applicable postal regulation, pointing out that Section 933.41 of the postal regulations directs carriers to deliver mail marked “Restricted Delivery” only to the addressee or agent.

The majority opinion also refers that portion of Rule 4(d)(8)(A) which states “Service pursuant to this paragraph shall not be the basis for . . . default . . . unless the record contains a return receipt signed by the . . . agent of the addressee.” All that needs to be said about this segment of the Rule is that service was clearly not had “pursuant to this paragraph” because delivery was not restricted to the addressee or agent of the addressee.

It is easy to make light of the failure to “check the box” indicating restricted delivery, but unless the box is checked, the mail is not marked “Restricted Delivery,” and delivery is thus not restricted. The problem caused by this decision is a serious one. R.L. Wright was not given the process as a result of his having been designated to receive restricted deliveries. He received it because he happened to be the person who showed up. Holding that the service was valid because a person authorized to receive restricted deliveries actually received it is analogous to holding that actual notice is sufficient even though the law did not require that notice be given directly to the defendant, a practice thoroughly condemned as a violation of due process in Wuchter v. Pizzuti, 276 U.S. 13 (1928). Actual knowledge of a proceeding does not validate defective process. Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982). See also Wilburn v. Keenan Companies, Inc., supra.

As we wrote in the Wilburn case,

Statutory service requirements, being in derogation of common law rights, must be strictly construed and compliance with them must be exact. Edmonson v. Farris, 263 Ark. 505, 565 S.W.2d 617 (1978). The same reasoning applies to service requirements imposed by Rules of Court. Proceedings conducted where the attempted service was invalid render judgments arising therefrom void ab initio. Halliman v. Stiles, 250 Ark. 249, 464 S.W.2d 573 (1971); Edmonson v. Farris, 263 Ark. at 508. In cases where judgments are void, proof of a meritorious defense is unnecessary. Edmonson v. Farris, 263 Ark. at 508.

In Edmonson v. Farris, supra, the Trial Court had determined that the fact that service was not precisely in accordance with the then applicable statutory requirement was a mere “technical distinction” insufficient to invalidate the service. Writing for a unanimous Court, Justice Frank Holt made short work of responding to that position by stating that the service requirements of the statute are in derogation of the common law and must be “exactly complied with.” Otherwise, the service results in void judgment.

The compliance in this case was not exact. The service was defective. The judgment is void.

I respectfully dissent.

Dudley, J., joins in this dissent.