Jus­tices find suit no­tice lack­ing

Ten­nessee man sent email in case

Arkansas Democrat-Gazette - - ARKANSAS - SPENCER WILLEMS

An email no­ti­fi­ca­tion of a law­suit was not enough to al­low a cir­cuit judge to rule against a Ten­nessee man and his ef­forts to draw at­ten­tion to the “sus­pi­cious” death of his Arkansas niece.

On Thurs­day, the Arkansas Supreme Court ruled in fa­vor of James Stew­ard Jr., who re­ceived an email last year from In­ter­net me­dia company YouTube that it was pulling down a video of his be­cause of a court or­der.

The jus­tices agreed with ar­gu­ments by Stew­ard’s at­tor­neys that their client was never prop­erly served with the law­suit and, thus, a sub­se­quent rul­ing against him could not stand.

The rul­ing re­versed the Oct. 31, 2013, rul­ing by Ben­ton County Cir­cuit Judge Xol­lie Dun­can, which threw out Stew­ard’s ap­peal of a de­fault judg­ment that barred him from, among other things, us­ing the In­ter­net to sug­gest that his niece’s for­mer boyfriend caused the woman’s death.

In Fe­bru­ary 2009, Fort Smith po­lice found Sarah Fen­nell un­con­scious, along with Adam Kuet­tel, and took her to the hos­pi­tal.

After sev­eral days in a coma, Fen­nell died. Her cause of death was ruled as “nat­u­ral causes” by state med­i­cal of­fi­cials, ac­cord­ing to court fil­ings.

But Fen­nell’s un­cle, Stew­ard, was not con­vinced by the in­ves­ti­ga­tion, and he cre­ated a web­site called Jus­tice4Sarah that pub­lished sev­eral doc­u­ments from his niece’s death in­ves­ti­ga­tions.

Ac­cord­ing to court fil­ings, Stew­ard used the web­site to spread lies and de­fame Kuet­tel, call­ing

Kuet­tel a “known func­tion­ing al­co­holic and a woman beater” in the Fort Smith area.

Stew­ard’s site also sug­gested that Fen­nell died after a beat­ing from Kuet­tel, that in­ves­ti­ga­tors “re­fused to hold” Kuet­tel ac­count­able for his ac­tions and that Kuet­tel “con­tin­ued to com­mit dis­gust­ing acts upon Sarah’s un­con­scious and un­re­spon­sive body.”

In Fe­bru­ary 2012, Kuet­tel filed suit in Ben­ton County, ask­ing for da­m­ages be­cause of emo­tional and per­sonal dis­tress caused by Stew­ard’s cam­paign. He also asked the judge to bar Stew­ard from fur­ther defama­tion and that he be re­quired to re­move all of his com­ments from the In­ter­net, com­ments that had been picked up by other web­sites and could be found in at least 224 Web pages.

But Kuet­tel and his at­tor­ney couldn’t find Stew­ard, ac­cord­ing to court records.

At­tempts to of­fi­cially serve Stew­ard with the law­suit failed after law en­force­ment of­fi­cials in Ten­nessee couldn’t find an ac­cu­rate ad­dress for him.

De­spite searches through sev­eral data­bases, as well as fur­ther at­tempts by Kuet­tel to get an ad­dress from Stew­ard’s fam­ily also failed, Kuet­tel asked for an al­ter­na­tive means to serve Stew­ard with the suit.

After notic­ing that a re­porter from a lo­cal news­pa­per ex­changed emails with Stew­ard, Kuet­tel asked Dun­can to al­low for “al­ter­na­tive ser­vice” un­der the rules of Arkansas civil pro­ce­dure and let at­tor­neys email the proper no­ti­fi­ca­tion to Stew­ard.

Dun­can signed off on it, and after sev­eral months, Stew­ard never re­sponded, prompt­ing Kuet­tel to ask the court to grant a de­fault judg­ment against the Ten­nessee man.

On June 28, Dun­can agreed, rul­ing in fa­vor of Kuet­tel and man­dat­ing that Stew­ard re­move state­ments from the In­ter­net.

Once Stew­ard was in­formed by YouTube that it would take down one of his videos, Stew­ard filed his own mo­tion in Ben­ton County, ar­gu­ing that the de­fault judg­ment should be va­cated be­cause he was never prop­erly in­formed of the law­suit.

In Oc­to­ber 2013, Dun­can dis­missed Stew­ard’s mo­tion, and the case was ap­pealed to the Arkansas Supreme Court.

At­tor­neys for Kuet­tel ar­gued that they fol­lowed proper pro­ce­dure in no­ti­fy­ing Stew­ard and that when they sent the email, they even re­tained the ser­vices of a cy­ber­se­cu­rity firm that con­firmed that the email sent to Stew­ard’s ac­count had been read.

In his de­fense, Stew­ard ar­gued that Dun­can’s rul­ing robbed him of his due-process rights and a chance to de­fend him­self in court. He ar­gued that he never saw the at­tach­ments in the email from Kuet­tel’s lawyers and that he re­ceives thou­sands of emails — of­ten spam — re­gard­ing his web­site.

“[I of­ten get emails from peo­ple] of­ten claim­ing to be lawyers, this one wasn’t spe­cial, with the ex­cep­tion that I was un­able to read the at­tach­ments,” he told court of­fi­cials. “I just as­sumed this was another fraud at­tempt and dis­re­garded it.”

In Thurs­day’s rul­ing, the Supreme Court pointed out that lower courts can use al­ter­na­tive means of serv­ing par­ties in a law­suit, such as email, so long as it is “rea­son­ably cal­cu­lated” to en­sure that all par­ties are prop­erly no­ti­fied.

“When no­tice is a per­son’s due, process which is a mere ges­ture is not due process,” Chief Jus­tice Jim Han­nah wrote. “The means em­ployed must be such as one de­sirous of ac­tu­ally in­form­ing the ab­sen­tee might rea­son­ably adopt to ac­com­plish it.”

Although the lower court was sat­is­fied by the “track­ing de­vice” im­planted by the cy­ber­se­cu­rity firm to show that Stew­ard’s no­ti­fi­ca­tion of ser­vice was re­ceived, the state’s high­est court found that more should have been done to en­sure Stew­ard was prop­erly no­ti­fied.

“The al­ter­na­tive ser­vice of the process in the case was in­suf­fi­cient be­cause it was not rea­son­ably cal­cu­lated to give ac­tual no­tice to Stew­ard,” Han­nah wrote. “[The] de­fault judg­ment is void … Be­cause the de­fault judg­ment was void be­cause of in­suf­fi­cient ser­vice of process, [Dun­can] erred in denying Stew­ard’s mo­tion to set aside de­fault judg­ment.”

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.