good morning your honor so may please the court i am andrew butare and my firm represents the appellant pons on safety equipment corporation the default judgment entered by the trial court should be vacated because it is based on service of process upon a dead person the person coms on's motion to vacate the default judgment and the default judgment itself should be reversed for two main reasons first a dead person cannot be served a dead person's agent cannot be served and a corporation cannot be served their dead person ok what statute or relevant provision here the service can only be affected upon a general agent of a corporation by restricted delivery mail and so if restricted delivery mail was actually employed in this case then the doormen would not have been able to accept  law controls the requirement for service in this case we got arkansas involved got new york involved got the federal rule involved which which rules control the process you're exactly right your honor there's a few different jurisdictions so for service of process we start with federal civil procedure for and we know that that permits service upon a corporation in the same manner as a service on an individual that means that the law of the forum state or the law of the service  service now here the summons was issued by the federal district court saying it only needs to be it only needs to work under one if it works under any one it's sufficient well here we have to consider the multiple jurisdictions i think because service was attempted to be affected under arkansas rule of civil procedure for but new york business corporation law also dictates service of process requirements upon a corporation so in that sense new york  of civil procedure for outlines different service of process requirements upon a corporation depending on whether corporations registered agents being served or their general agent of the corporation is being served and i use the term general engine of a corporation using the definition and subdivision d five which is cited with and subdivision ga if the registered agent of a corporation is being served and service may be affected by certified mail return receipt requested if a registered agent is not being served then service must be by restricted delivery mail what does this mean this means that the service of process requirements upon a registered agent are less jurisdictions i know of i know that for i don't understand a district court assertion that there wasn't any other way to do this we were confused as well your honor and new york business corporation law section three zero four three three zero s secretary of state as an agent for service of process on and on all new york corporations and there's also a case for holding that service a process may be affected on a dissolved corporation via the secretary of state so regardless of palms on corporate status service a process could have been affected through the secretary of state but incomplete your answer to and i was simply going to add that new york law also her hold so that upon receipt by the secretary of state would say that the doormen signed on behalf of howard weiss who was the tenant in the residential building in which the doorman worked now the service was addressed to paul this on via howard weiss and service had to be addressed to a natural person as required by arkansas rule of civil procedure for so the doormen himself only had any sort of relationship agency or otherwise with howard weiss he never had any independent agen relationship with potus on that there's no way under new york law that he could be in any way appointed by law for pomus and because he was working for weiss no your honor i don't there has no case law support for that proposition there are some cases supporting the notion that a dorman may accept service of process on behalf of another individual i cited in briefing right miller who discussed this proposition and cited some cases but what's interesting is that in this case even the cases that have been discussed in briefing and in fact cited by the district court don't stand for the proposition here and the proposition here is that a dormant can accept service of process on behalf  resident who was in turn accepting service of process on behalf of a corporation for instance in the butt but there was a decision that the trial court cited stated that well a dorman may accept service of process on behalf of individuals there was no evidence that previous methods of service necessarily in all those cases parmesan appeared there's no evidence of pomus on was served via howard weiss after his death that the howard wiseness death is of course a very issue for the propriety of service a process and that's what we've been arguing all along and judge kelly to your point even though i can't necessarily speak to what's going on in other cases i can tell you that as the scouse the new york secretary say it would be a proper recipient of service a process as i read the rules and i would invite the court to keep in mind chub overarching background themes here and the first theme is that judgments are disfavored by the law and the second broad theme is that arkansas requires strict compliance with service of process requirements in order to safeguard their process and i would submit to the court that in this case the bells are centrally asking the court to flip those your presumptions and they're asking the court to overlook improper service of process in order to salvage a default judgment and that approach and that result contradicts both this court's presumptions and this morning please the court my name is mike martin and i represent the bell family in this matter i think that the key distinction here that i would start off discussing and listening to argument is simply stated that for purposes of this case is not dead and we did not serve an individual howard weiss is not a party and has never been a party but you didn't serve howard wise well either only because of his demise we served and i think what judge kelly pointed out to in the earlier argument that can equipment wasn't there registered agents die corporate officers die so it's your position that the doorman succeeded mr weiss was an agent for poems he had apparent authority because as on page sixty seven of the record  arkansas law from your member the year the question is whether a reasonable prudent person would naturally suppose that this individual was the agent it's the address you look at that decision your honor on the front page page three sixty three of the opinion and and the recitation of myself on the record as well but i think ford is more controlling here  country when you said that earlier i had no reason to dispute that but we have to know as plaintiffs that the registered agent is no longer the registered agent we had been serving pomus on in the manner this petition and in the manner that's described in the fourth case for ten years and pomus on had been answering and diligently defending these cases until they challenge that defense in the ford anion which resulted in the jurisdictional challenge that resulted in that opinion in two thousand and six and and published on came and said look we don't exist anymore and the court in new york said i yes you do for purposes of your improper notice you still exist and we had been serving homeless on this way really all way back to the ninety's actually and so the question is were we is there any evidence on the record that the pla looking for our second point post on a still an a corporation that can be sued and it's a company that's being sued not an individual and mr wise has never been the individual who has been a defendant in this case that did strictly comply with the service requirements under arkansas law rule for and that's really the question here judge arkansas law rule for specifically rule for  you're saying you didn't know the you were doing it as you always were what how does that work if it's not it if we say no you didn't serve because mr weiss is no longer alive but you say well how do we know that right you got this return receipt signed by the doorman how do we know where do we go with that what how does that allow you to be the tourist in this appeal i think you go to the advance kelly case the arkansas supreme court of two thousand and ten in advance fiberglass held that look if the issue is not whether the register agent is alive or dead the issue is whether service was affection weighted properly in that case service was affected on an employee as opposed to the registered agent and service was challenge because the re agent was not served and the court held that arkansas is not a restricted service under rule for the arkansas summons requirement which is adopted by four point one of the arkansas western district the agent that we have always understood to be the party to accept service in this case and i think what the unique twist here that we may all be struggling with is that we're talking about serving a dissolved company a company that's been dissolved since one thousand nine hundred six whether it's resolved or dissolved or not the letter was made as an attempt on someone who's not there in both the physical sense and metaphysical he's not alive and the only way this works is if giving it to the doormen is somehow an effective substitute under arkansas law and i don't see how fiberglass advance fiberglass help she there because there and it has to be an employee of the company that can accept service and the doormen didn't work for posada well but the doormen had been historically for at least ten years excepting service for that corporation because that's where the corporations address was and we believe that in addition to howard weiss there was another corporate officer residing at that should be interpreted knew it was almost on doesn't have a factory anymore they don't have an office anymore they're dissolved corporation so they're being served at the location of howard weiss and as the record reflects with regard to some of the previous proceedings for example  on file bankruptcy it did so with howard weiss authority and his affidavit supported that bankruptcy at that address so it is the corporate address for all practical purposes it can only be viewed as the corporate address there is no other corporate outer address to serve and so in that's why the advance fiberglass case does apply because if we're strictly complying or serving a company or serving that corporate address this is not an individual that we're serving to the corporation can't die as a matter of law the corporation status has been suspended and can be sued for the limited purposes that we did what are we supposed to do other than what we've been doing for the last twenty years in terms of serving policy on pursuant to the outline of the fourth opinion and that's the point where in strict compliance if we strictly complied with the rules and i think that's what judge nikki was was trying to point out in her opinion then there is no abuse of discretion here and she did not abuse her discretion in finding that service was adequate it what halmos on says in their briefing that i think is kind of interesting is that there's no requirement for them to a you well but really the point is the point is that why take that route when ford versus pumice on describes the situation as a matter of law that they have been defending these cases for the last twenty years in this manner and been served in answering vigorously defending these cases just as they were served in this case and so it's reasonable and not manifestly unjust during abuse of discretion for the court to have interpreted the pla conduct in following the spirit of forward as really the only guidance that's out there in terms of what to do here the real problem is what i do on the next case now that i know that this service won't be accomplished but what happens if we if if  if the service is if we determine the service is not good what happens to this case i think that i think well there's a deck action companion deck action that's on file by the insurance carriers and they're trying to avoid they're claiming insurance is exhausted but the question is if it goes back who who i serve and i suspect what i'm going to have to do or what i what i would think i would have to do is go to new york and sue the estate of howard weiss and a declaratory action to figure out who to serve because there's nobody on file secretary of state that's going to accomplish that and i guess i can go back to serve the secretary state get another default judgment which would be taking me exactly where i'm at here at the point is that ford is really the influencing case here which makes this case unique and and distinctly different because we're dealing with a company that's dissolved and had been dissolved since one nine hundred eighty six and we're dealing with a procedure that had been in place long standing but i would point out one other point about the service issue and our response and our point that what's that the the entity being served here is pumice on and every case that is cited by promise on in their brief relating to defective service service on individuals and persons who are defendants in their individual capacity in the cases in which they've been sued howard weiss was not a defendant in this case in an individual capacity he was just an agent he was the wrong agent under new york law under arkansas law if the agent is the wrong agent it is the burden and the responsibility of the corporation to do to update the agent issue it is not my burden to try to go figure out whether mr weiss is alive or and i don't know that equally important is that there was another corporate officer in residence at that location patricia weiss who was the secretary of the company while it was in existence and so while mr weiss may have been deceased there was another individual present that could represent the interest of the corporation and where else would we go that in the record yes stablish that she was still living at that location where the man accepted specific question as to whether she was still living i'm not sure whether that exact fact is in the record that her address and her residency and her status as a corporate officer because ford as the outline for this case is the only map that we have at this point till i reconstruct another one to serve on and because we strictly construed with the service requirements under arkansas rule and and the specific point being that the advance fiberglass case doesn't require restricted service but that forwarding the summons by registered mail return recei requested to the corporate address where the service is identified is sufficient to establish service that dictates that judge tricky was correct and did not it her abuse her discretion in finding quick look at the facts of that case illustrate that they are just confused on the significance of serving a registered agent under arkansas law versus serving a general corporate agent and the right to get what i'm sorry person serving a general corporate agent as outlined in subdivision d five for so in the wrong a good decision plaintiff attempted to serve the registered agent of a corporation by restricted delivery mail but as discussed earlier restricted delivery mail is not required when you're serving a registered agent all that's required certified mail return receipt requested because of an error of the u s postal service the registered agent employee was permitted to sign the return the court in rome iggy said this doesn't invalidate service because judge poe you asked a question about whether there was any record evidence regarding whether patricia weiss was even watched and the answer is there is not the only evidence submitted regarding patricia weiss kimmitt page thirty four of the joint appendix and this was the print out that opposing counsel attached to one of the papers submitted in the trial court and not only this printout shero different addresses for patricia weiss in fact this printer shows howard weiss as being alive so i  that's a good question because i'm not exactly sure what will happen post disposition of this appeal i'm not sure what the bells will do i can say however even if the result ended up being the same ultimately did end up the same in this case which i don't know to be the case i think that this decision could cause tremendous harm in future cases because it really is a judicial outlier the reason there aren't a lot of cases out there saying that a corporation cannot be served via a dead person