Back when Arkansas Circuit Court Judge Susan Weaver had just been elected as a District Court judge, she gave an interview that feigned wholesomeness and small-town values.

But there was one paragraph foreboding of things to come.

“I find tax and estate planning interesting. I don’t have any money, so it’s fun to play with somebody else’s,” she said, laughing. – as quoted by Tammy Keith in the Arkansas Democrat Gazette.

“Playing” a game where the winners are decided in advance and are lawyers, Judge Weaver let at least two lawsuits progress against trustees of old ladies’ trusts that were not served summons.

Mine is one of them. (The other is a pair of suits regarding Richard Gawenis and the Zelda Walls trust, that is now on appeal.)

Maybe Judge Weaver thinks it is fun and funny to “play with somebody else’s” retirement and legacy.

It does not seem funny to me.

Here is a response to a motion to have an insufficient service of summons deemed “perfected” that I filed today. Judge Weaver gets to decide my financial future, so it does not look too promising for me.

(Sorry the formatting doesn’t translate, so the numbering is not as in the original.)

IN THE CIRCUIT COURT OF SEARCY COUNTY, ARKANSAS CIVIL DIVISION

CASE No.  65CV-21-20                                                          

 MICHEAL PIETRCZAK                                                         PLAINTIFF v.                                         

RURAL REVIVAL LIVING                                                                                                 

TRUST; AND LAURA LYNN                                              DEFENDANTS

LAURA LYNN HAMMETT                                                COUNTER-

                                                                                                    CLAIMANT  v.

MICHEAL PIETRCZAK                                                  COUNTER-

                                                                                                  DEFENDANT  

LAURA LYNN HAMMETT AN INDIVIDUAL’S RESPONSE TO MOTION TO DEEM SERVICE UPON DEFENDANT RURAL REVIVAL LIVING TRUST PERFECTED AND EMBEDDED BRIEF

Comes Now, Laura Lynn Hammett, an individual (“Hammett”), and for her Response to Motion to Deem Service Upon Defendant Rural Revival Living Trust Perfected, states:

1.    A Motion to Deem Service Upon Defendant Rural Revival Living Trust Perfected was filed by Attorney William Z. White on January 14, 2022, Called herein “Pietrczak Motion”.

   Though filed at “16:53:32” on January 14, 2022, the clerk did not accept and therefore notify Hammett of the Pietrczak Motion until 7:49 AM on January 17, 2022.

   Prior to January 14, 2022, Hammett filed several motions that addressed the issues addressed in the Pietrczak Motion that went undecided by the Court and one went unanswered by the Plaintiff completely.

   The most recent of Hammett’s motions regarding the same issues presented in the Pietrczak Motion are Hammett’s Motion to Strike a Summons, Find Complaint Void for Improper Caption and Summons and a More Definite Statement filed October 8, 2021, called “Oct. 8 Mtn”, and Hammett’s Motion to Dismiss for Failure to Name and Serve a Necessary Party filed December 29, 2021, Called “Dec. 29 Mtn”.

   Hammett has a pending motion for the recusal of Judge Susan Kaye Weaver filed September 27, 2021 and supplemented September 28, 2021. (This is a motion for reconsideration, the original motion to recuse denied on September 24, 2021.) Hammett realleges that it is not proper for the Hon. Susan Kaye Weaver to preside, because of Canon 2 of the Arkansas Code of Judicial Conduct, 2.11(A)(1) and Matter of Est. of Edens, 2018 Ark. App. 226, 19, 548 S.W.3d 179, 190–91 (2018).

   Additionally, the fact that the Pietrczak Motion was posted and thereby served at 7:49 AM on Martin Luther King Day, a state and federal holiday, adds to the appearance that the Court is favoring Mr. White and trying to allow Mr. White’s client to prevail on a technicality, rather than reaching a jury verdict on the merits.

   Both the file stamp and the certificate of service of the Pietrczak Motion show a date that would allow one less day for Hammett’s response than the day of notification and service.

   Rather than being challenged to produce evidence of the disputed date, and convincing the Court to reconsider her decision, Hammett is filing her response early.

   Hammett claims all rulings made by a judge who has an appearance of bias, after the bias is claimed by the litigant in a motion for recusal, are a violation of the aggrieved litigant’s Constitutional Right to due process and equal protection under the fifth and fourteenth amendments.

   Hammett has a pending motion for Summary Judgment filed August 27, 2021 (“MSJ Aug. 27”).

   Hammett argued that Mr. White filed the complaint on behalf of “Walter Pietrczak, Power of Attorney-in-Fact [f]or Plaintiff, via attorney, William Z. White” and that requests for admission signed on behalf of “Michael (sic) Pietrczak” denied that Walter Pietrczak had a power of attorney when complaint was filed. (MSJ Aug. 27)

   In the Pietrczak Motion, Mr. White states he filed “on behalf of the Plaintiff, Michael (sic) Pietrczak”. There was no motion to substitute the plaintiff. Such a motion, if made, must be denied.

    “The Rule of Civil Procedure on relation back of amendments to pleadings, which is expressly written in terms of amendments or changes to the party against whom a claim is asserted, does not apply to allow amendments or changes to plaintiffs as well. Rules Civ.Proc., Rule 15(c).” Bryant v. Hendrix, 375 Ark. 200, 289 S.W.3d 402 (2008)[1]

   “Where an action is brought in the name of a non-existing plaintiff, an amendment of complaint by substituting the proper party to the action as plaintiff will be regarded as the institution of a new action as regards the statute of limitations.” Id.

   “[A]ccording to Rhuland [v. Fahr, 356 Ark. 382, 155 S.W.3d 2 (2004)], whenever an amendment to a complaint substitutes a new plaintiff, such amendment is a new cause of action and does not relate back to the original complaint.” Id.

   Hammett has already argued that the Complaint should be dismissed on statute of limitations and was ignored by the Court. Any amendment that does not relate back exceeds the statute of limitations by over a year.

   Micheal Pietrczak’s attempt to adopt the complaint that was filed on behalf of his supposed power of attorney is an admission by Micheal Pietrczak that he committed fraud on Laura Lynn Hammett.

   Some of the evidence of fraud was presented at the hearing of October 7, 2021 by testimony under penalty of perjury by Laura Lynn Hammett that went unrebutted.

   Hammett was willing to give Pietrczak half the value of the property when they parted, but she was not aware of how calculated his fraud was until he started lending his name to this lawsuit by allowing Mr. White to change plaintiff from Walter Pietrczak as POA [f]or Micheal Pietrczak to Micheal Pietrczak.

   Attorney White should be foreclosed from writing “on behalf of Micheal Pietrczak” instead of “Walter Pietrczak as Power of Attorney…” and the Complaint should be dismissed as per the MSJ Aug. 27. (A.C.A. § 16-62-102 and McKibben v. Mullis, 79 Ark. App. 382, 90 S.W.3d 442 (2002))

    This would render the Pietrczak Motion moot.

    The entire Pietrczak Motion should be denied as it is an impermissible attempt to add arguments in responses to the Oct. 8 Mtn and the Dec. 29 Mtn.

   On August 20, 2021 the Court filed a letter dated August 19, 2021 (“Aug. 19 Letter”)

   The Court stated: “Consider this letter a friendly but stern warning that this court fully expects all parties to comply with the Arkansas Rules of Civil Procedure and the Arkansas Rules of Evidence during this case.” (Aug. 19 Letter)

   The Court also stated, referring to the oral motion for extension of time to serve summonses: “It has been over 10 days since the oral motion was made and to date, Defendant failed to file any motion or response opposing the oral motion to extend.” (Aug. 19 Letter)[2]

   In the lawsuit under 42 USC 1983 Hammett filed against Judge Susan Kaye Weaver as an individual, 4:21-cv-00857-BRW, dismissed pursuant to Rooker-Feldman, etc., Judge Weaver stated: (on brief Document 4, page 2)

“[Hammett] then claims that the Judge granted the motion [for extension of time to serve summons on the Rural Revival Living Trust], finding that 10 days had passed since Mr. White filed the written motion and Plaintiff had not responded.”

  Hammett has never said there were 10 days between when the written motion was filed and the order was issued. It was one day.

   It would be a violation of Hammett’s Constitutional Right to due process and equal protection to allow Plaintiff to introduce arguments against the Oct. 8 Mtn and the Dec. 29 Mtn by filing his own motion belatedly.

   Should the Court be allowed to preside in spite of the appearance of  favoritism toward Mr. White and whoever he represents, the Pietrczak Motion must fail anyhow.

   Pietrczak Motion ¶ 2 states: “Pietrczak made an oral Motion for Extension of Time to Perfect Service during the August 4, 2021, hearing, which was granted by the Court.”

   Hammett has a pending motion to settle the record filed August 29, 2021, in which she stated that the transcript of the hearing of August 4, 2021 is significantly inaccurate.

   The main inaccuracy concerns the oral motion for extension of time to serve a summons. During the hearing Judge Weaver left the bench. When she returned, she said the “AOC” told her that the motion to extend must be in writing and that Hammett must have an opportunity to respond in writing, which is consistent with ARCP Rule 4(i)(2). The court reporter deleted part of that exchange and inserted a statement that Plaintiff did not hear.

   If the unheard statement was made, it would be legal error. The Court is supporting Mr. White’s contention that the Court said she would grant the oral motion, though she does not “normally”.

   Hammett wrote a letter and a motion on August 5, 2021 asking the Court to put the order made at the hearing of August 4, 2021 in writing.

   The Court did not put the supposed orders made on August 4, 2021 in writing, except a few words on the docket: “Final Hearing Continued”.

   Mr. White did not file and serve a written motion for extension of time to serve until August 18, 2021.

    The Court signed the order for extension of time one day later. This denied Hammett the time to respond dictated by A.R.C.P. Rule 6.

   It is important to read the entire letter and motion filed August 5, 2021. Hammett painstakingly asked for clarification of the order for continuance which was just a few words on the docket but does not mention the order for an extension of time to serve. This is because in Hammett’s academically gifted mind, there was no memory of a motion for extension of time to serve being granted in the hearing of August 4, 2021.

   Hammett distintly remembers the Court repeating the AOC’s correct admonition of A.R.C.P. Rule 4(i).

   This Court is required to settle the record in regard to the hearing of August 4, 2021 before granting this Pietrczak Motion. (ARAP 6(e), Craig v. State, 64 Ark. App. 281, 282, 983 S.W.2d 440, 441–42 (1998))

   Pietrczak Motion Exhibit 1 is the Motion to Extend Time to Perfect Service. Hammett draws attention to paragraph 8. “Michael Pietrczak has been unable to locate Laura Lynn and/or the Rural Revival Living Trust because of their continued attempts to evade service.” Bold added.

   There was only one summons total issued for both defendants as of August 4, 2021.

   No attempt at service was made prior to Hammett finding the complaint and responding without being served.

   The Plaintiff was hoping the Court and the appellate Court would agree with him in the face of glaring evidence to the contrary.

    To her credit, this Court told Mr. White to remove “because of their continued attempts to evade service” before she granted his written motion.

    Still, it was an abuse of discretion to find “good cause” shown for the failure to issue summons to the Rural Revival Living Trust and Hammett.

   “[Plaintiff] did not make a diligent inquiry into [defendant’s] whereabouts and therefore did not satisfy rule permitting service of process by warning order issued by the clerk [an accommodation similar to the extension of time to serve], thus rendering default judgment entered against seller void, in action for damages [].” Scott v. Wolfe, 2011 Ark. App. 438, 384 S.W.3d 609 (2011)

   “Judgments by default rendered without valid service are judgments rendered without jurisdiction and are therefore void.” Id.

   Pietrczak Motion Exhibit 2 is the Order Granting Extension of Time to Perfect Service. The Court granted the extension “to serve the (sic) Laura Lynn and the Rural Revival Living Trust” (P 11).

   When one person is a party to a lawsuit in two capacities, two summonses must issue.

   The one summons served improperly on October 7, 2021 was directed at “Rural Revival Living Trust” and “c/o Laura Lynn Hammett”.

   Because Hammett was named as an individual and should have been named as “trustee”, she was confused about which defendant this one summons was directed toward. Hammett explained this in the Oct. 8 Mtn, which is incorporated by reference here as if set forth in full verbatim.

  The Court, in her usual appearance of bias, failed to clarify which party was served.

   Mr. White did not respond to the Oct. 8 Mtn to clarify whether the summons was issued to the individual or the trust.

   Mr. White, who claims that he believed he had until December to perfect service, did not amend the summons to say “trustee” and send by certified mail to the address the Lick Fork property taxes were mailed to or the address Hammett repeated in open court on August 4, 2021.

    As explained in the Oct. 8 Mtn and not rebutted, Mr. White probably intended to have Hammett incarcerated for violating the rule that one must be licensed to serve process and licensed to practice law. If he could convince Hammett to serve the summons on the trust, he could gleefully have her arrested.

     In both the motion and order for extension of time to serve, paragraph 9 states: ”Michael Pietrczak needs additional time to attempt to locate and serve Defendants, Laura Lynn and/or the Rural Revival Living Trust.”

   “And” means both. “Or” means either or both. Because the summons handed to Hammett on October 7, 2021 was addressed to “Rural Revival Living Trust” and “c/o Laura Lynn Hammett” and neither name included the word “Trustee”, Hammett could understand this as being the summons to the individual.

    In Pietrczak Motion paragraph 6, Plaintiff’s counsel stated that Chief Deputy Pierce served a summons on Hammett on “October 12, 2021”. This is a typo or a lie.

    The Affidavit attached to the Pietrczak Motion as Exhibit 4 (“Affidavit”), incorporated here as if set forth in full, repeats the typo or lie that Chief Deputy Pierce handed a summons to Hammett on October 12, 2021.

    Assuming it was a typo, it shows that the Affidavit was probably prepared by the same person who wrote the Pietrczak Motion.

    The Affidavit is not signed by Chief Deputy Pierce. It has an electronically generated block letter printing of Deputy Pierce’s name on the signature line. It appears that Ezra Pierce was not present for the “signing”.

    Brooke Hipp is the notary.

    Brooke Hipp works in the Law Office of William Z. White.

    Brook Hipp is not licensed or authorized to perform electronic notarization. (As per the Secretary of State Website)

    More importantly, the affidavit that appears to be drafted by someone in the office of Plaintiff’s counsel, purports that Chief Deputy Pierce is authorized to practice law. He swore, if the notarization is valid, that “the Defendant, Rural Revival Living Trust, was duly served, pursuant to Rule 4 of the Arkansas Rules of Civil Procedure, with the Summons and Complaint for Damages personally.”

    Hammett could find no bar number for Ezra Pierce in Arkansas.

    Chief Deputy Pierce is allowed testify to his actions, such as the sentence: “I served the Summons issued to Defendant Rural Revival Living Trust and the Complaint for Damages upon Laura Lynn Hammett in the courtroom of Hon. Judge Susan Weaver on October 12, 2021.”

    Chief Deputy Pierce is not allowed to deem the legal effect of his actions.

   In Pietrczak Motion paragraph 8, Plaintiff stated: ”Hammett admitted in her most recent Motion to Dismiss that she was served with the summons for Trust. ”

    In the Dec. 29 Mtn, the most recent motion to dismiss, Hammett did not admit she was served with the summons for the trust. She said the summons handed to her on October 7, 2021 did not have the word “trustee” after her name and she assumed it was directed toward her as the individual. She was reiterating the arguments made in the Oct. 8 Mtn. (Dec. 29 Mtn ¶ 7 and Pietrczak Motion ¶ 8)

  In Pietrczak Motion paragraph 7, Plaintiff refers to a summons issued on behalf of Hammett as an individual to “LAURA LYNN HAMMETT as TRUSTEE of the RURAL REVIVAL LIVING TRUST”. (Pietrczak Motion Exhibit 5 is incorporated here as if set forth verbatim.)

    Hammett differentiated the capacity of the party she was serving by using the words “an individual” and “trustee”. Mr. White is a licensed attorney, so he should know that Hammett an Individual and Hammett as Trustee are two distinct “persons”.

    Because Mr. White did not use the word “trustee”, Hammett asked for him to add the clarification repeatedly.

    In Pietrczak Motion paragraph 10, Plaintiff misinterprets Hamilton v. Bank of the Ozarks (In re Hamilton Living Trust), 2019 Ark. App. 76 for the proposition that a summons does not need to name the person it is directed toward properly.

   Hamilton is differentiated from the case at bar in several ways that point to the opposite conclusion: the summons must be directed toward the person who it is meant for and not another person who is also a party to the action.

    In Hamilton, “the summons qualified as a special circumstance under rule governing official form of summons, [], beneficiary filed a timely answer, and a trust case, similar to a probate case, was not a typical lawsuit and the summons could be modified in special circumstances. Ark. Code Ann. § 28-73-201; Ark. R. Civ. P. 4(b), 10(a).” Matter of Hamilton Living Tr. Dated Sept. 22, 2003, 2019 Ark. App. 76, 571 S.W.3d 53 (2019)

    In Hamilton, the defendant “did not dispute that he was correctly identified on the summons.” Id. At *3 Hammett disputed that the trustee of the Rural Revival Living Trust was correctly identified in both the Oct. 8 Mtn and the Dec. 29 Mtn.

   The Separate Defendant Rural Revival Living Trust filed no answer to the complaint.

   Plaintiff knows the cases differed because no answer was filed by the Rural Revival Living Trust. The Pietrczak Motion includes the phrase, “by the answer that was filed in response to the summons and the complaint that the complaint was served” in paragraph 10. The response filed was in the name of the individual Laura Lynn Hammett only. The Plaintiff filed a motion for default judgment simultaneously with the Pietrczak Motion indicating that Rural Revival Living Trust did not file a response.

   Hamilton reiterates A.R.C.P. Rule 4(b) that the summons must “contain the names of the parties; be directed to the defendant”.

   A copy of the summons attached as Exhibit 3 to the Pietrczak Motion is incorporated herein as if set forth verbatim. (“The Summons”)

   The summons is directed to “c/o Laura Lynn Hammett”.

    The summons in contention in Hamilton was directed to “LARRY HAMILTON”. Mr. Hamilton was not the trustee of the Hamilton Living Trust. He was sued as an individual.

   The case at bar has two named defendants. Hammett has said repeatedly that both party names are misnomers, and the Plaintiff has failed to amend properly. Regardless, because Laura Lynn Hammett is in the name of two parties, the parties must be distinguished by the capacity in which each is referred, ie. “an individual” or “trustee” in both caption and summons.

   If there is no designation that the party is a ”trustee” or some other official capacity, the default is that the party is an individual.

    The Plaintiff in Hamilton “argues that, like a probate case, there is no traditional plaintiff versus defendant.” Id. At *8. The Hamilton Appellate Court said “we recognize that a trust-administration case, like a probate case, is also not a typical lawsuit involving a plaintiff versus a defendant.”

   The case at bar is a typical lawsuit involving a plaintiff versus two defendants. It is not a special circumstance and does not allow for the relaxed rules regarding names in the summons.

“The Trustee in [Hamilton] filed a ‘Complaint for Declaration of Rights’ specifically stating that it was requesting a declaration of rights pursuant to Ark. Code Ann. § 28-73-201(c) and alleging that the court had jurisdiction over Mr. Hamilton and Ms. Cossey pursuant to Ark. Code Ann. § 28-73-202. Those statutes are found in the Arkansas Trust Code.” Id. At *9. In the case at bar, there is no referral to Ark. Code Ann. §28-73-202 nor declaration of rights and the complaint was not filed as a trust matter. The plaintiff complained that an individual “and/or” a trust committed various torts against him.

The plaintiff’s use of “and/or” made the distinction of which defendant was allegedly acting confusing. (See Oct. 8 Mtn for a more thorough discussion of the use of “and/or”)

“In [Hamilton], the summons contained the name of the trust and was directed to Mr. Hamilton. In no way did the form of the summons fail to apprise Mr. Hamilton of the pendency of the suit and afford him an opportunity to be heard.” Id. At *11. In the case at bar, the summons was directed to the individual, not the trustee. The summons did not state the true plaintiff, Walter A. Pietrczak as Power of Attorney for Micheal Pietrczak.

Further, the complaint handed to Hammett misnamed Hammett as “Laura Lynn”.  Hammett disclosed her legal name to the plaintiff repeatedly, writing it on each of the numerous documents she filed. The plaintiff neglected to amend the complaint and it is now too late. The complaint must be dismissed, for a myriad of reasons, including the misnomer of plaintiff and defendant.

“Amendment of complaint in action for trespass and encroachment brought against adjoining landowner, to add son as a plaintiff as owner of part of the land, and to substitute plaintiffs’ husband and wife in their capacity as trustees of the family trust holding the land, replacing their original status as individuals bringing the suit, did not relate back to their original complaint, which had been filed within the three-year limitations period of the alleged trespass. Rules Civ.Proc., Rule 15(c).” Bryant v. Hendrix, 375 Ark. 200, 289 S.W.3d 402 (2008)

“An amendment of a pleading relates back to the date of the original pleading when: the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (1) is satisfied and, within the period provided by Rule 4(i) for service of the summons and complaint…” id.

“We observe that our Rule 15(c) is expressly written in terms of amendments or changes to the ‘party against whom a claim is asserted [.]’ Appellants ask us to hold that the rule should be applied to allow amendments or changes to plaintiffs as well. We decline to so hold.” Id.

The authority cited in the preceding paragraph also shows that it is not acceptable to name an individual instead of a trustee of a trust, where the trust is the only owner of record on the deed to the property in question.

In Hamilton, “In no way did the form of the summons fail to apprise Mr. Hamilton of the pendency of the suit and afford him an opportunity to be heard. See Nucor Corp., 358 Ark. at 123, 186 S.W.3d at 730.”

Hammett objected to the confusing summons the first day after receiving it. (Oct. 8 Mtn)

In Hamilton, “indeed, [the defendant] does not dispute that he received the summons and complaint; he filed a timely answer.”

The Rural Revival Living Trust did not file an answer.

The exception to strict scrutiny made in Hamilton was “under these circumstances” and “this case qualified as a special circumstance.” Id.

   “Service of valid process is necessary to give a court jurisdiction over a defendant. Rules Civ.Proc., Rule 4(i).” Raymond v. Raymond, 343 Ark. 480, 36 S.W.3d 733 (2001)

“Summons is necessary to satisfy due process requirements. U.S.C.A. Const.Amend. 14; Rules Civ.Proc., Rule 4(i).” id.

“Statutory service requirements, being in derogation of common-law rights, must be strictly construed and compliance with them must be exact. Rules Civ.Proc., Rule 4(i).” id.

Hammett intends to file a response to the Motion for Default Judgment that was served to her on January 17, 2022 on February 1, 2022 which is 10 days plus legal holidays and weekends from when electronic notification was received.

    Wherefore, the separate defendant asks the Court to order the record of the hearing of August 4, 2021 to be settled by playing the recording in open court; decide the pending motions filed by Hammett including the motion to recuse, Hammett’s Motion to Strike a Summons, Find Complaint Void for Improper Caption and Summons and a More Definite Statement filed October 8, 2021, Hammett’s Motion to Dismiss for Failure to Name and Serve a Necessary Party filed December 29, 2021, Motion for Summary Judgment filed August 27, 2021, and deny the Plaintiff’s Motion to Deem Service Upon Defendant Rural Revival Living Trust Perfected as it is an attempt by Plaintiff to respond appropriately to the motions listed here and fails regardless.

January 24, 2022                   /s/ Laura Lynn Hammett  

---

[1] The Bryant case illustrates how a person named as an individual and a trustee must be listed twice in the caption.

[2] Hammett objected to the oral motion during the hearing and heard the Court say the AOC told her that the oral motion must be made in writing and Hammett would have 10 days to respond to the written motion, which is consistent with the A.R.C.P.  The Court Reporter, Jana Perry, and Judge Susan Weaver would have the Court of Appeals believe that Judge Weaver made an erroneous ruling from the bench and Hammett let it slide.