OSHAWA COURT FILE NO.: CV-17-1532-00SR

DATE: 20191206

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Royal Bank of Canada, Respondent/Plaintiff

AND:

HCB Thickson Ltd., Richard H. Slaughter and Frank Snape, Moving Parties/Defendants

BEFORE: The Honourable J. Dawe

COUNSEL: J. Davies, for the Respondent/Plaintiff

P. Mack, for the Moving Parties/Defendants

HEARD: November 29, 2019

ENDORSEMENT

1. Overview and factual background

1This is a motion to set aside a default judgment.

2In 2013 the Plaintiff Royal Bank of Canada (“RBC”) agreed to loan the corporate defendant HCB Thickson Ltd. (“HCB”) funds to enable HCB to set up a “Hero Certified Burger” franchise hamburger restaurant in Whitby. The individual defendants Richard Slaughter and Frank Snape both agreed to guarantee 25% of the bank loan. Mr. Slaughter is the sole officer and director of HCB and is its directing mind. Mr. Snape testified in cross-examination on his affidavit that he had loaned Mr. Slaughter money for HCB’s business venture but did not have an equity stake in the restaurant. However, he was a co-signatory with Mr. Slaughter of the franchise agreement with the franchisor, Angus Inc. (“Angus”).

3When RBC made its loan to HCB it obtained a security interest over the restaurant equipment and furnishings.

4The restaurant did not do well and the loan fell into arrears. In April 2017 RBC demanded payment from HCB and from the guarantors of the outstanding amount. The original loan had been for over $200,000, but when RBC called in the loan the balance stood at slightly less than $66,000. The amount for which the guarantors were liable was slightly less than $55,000. At this same time RBC also retained Grant Thornton Ltd. (“Grant Thornton”) to manage the account.

5In May 2017, when neither HCB nor the guarantors had repaid the funds owing, RBC had a Statement of Claim issued. There is a dispute between the parties as to whether all of the defendants were properly served with this Statement of Claim. RBC has presented affidavits of service, but HCB and Mr. Snape now deny that they were properly served. However, it is undisputed that Mr. Slaughter and Mr. Snape were both aware of RBC’s lawsuit at least by the summer of 2017. None of the defendants took any steps to defend the action.

6In June 2017 Mr. Slaughter advised RBC’s counsel that he had a conditional deal in place to sell the restaurant. This sale fell through, as did two other conditional sales that counsel for HCB and Mr. Slaughter advised RBC were being negotiated later that summer. In late August, RBC’s counsel advised HCB and Mr. Slaughter’s counsel that the bank would not forbear further unless HCB confirmed that the latest conditional sale would close and made a $20,000 payment to be applied to the debt. HCB and Mr. Slaughter did not respond.

7In September 2017 RBC obtained default judgment against the three defendants. It is undisputed that the defendants became aware of the default judgment at least by November 2017. However, they did not move to have the default judgment set aside until more than a year later, in December 2018.

8During the fall of 2017 the defendants made a further attempt to sell the restaurant, which also fell through. In early October 2017 Mr. Snape’s counsel attempted to negotiate a settlement of his client’s obligations to RBC. By this time RBC was now also seeking payment of its legal costs and Grant Thornton’s fees as well as the original debt, plus interest. These negotiations soon reached an impasse. Mr. Snape’s counsel urged RBC “to exercise its security on the company’s assets”, explaining that they had a new prospective purchaser whom they were concerned might try to cut them out and make a deal directly with the franchisor.

9By November 2017 HCB also owed the franchisor Angus over $100,000 for rent and other expenses, and towards the end of the month Angus advised that it was terminating the franchise agreement. This put the restaurant out of business as a going concern.

10In December 2017 Mr. Slaughter offered to settle the outstanding dispute for $60,000 in exchange for releasing all three defendants of their obligations and transferring first position security to Mr. Snape. This was less than the amount of the default judgment RBC had already obtained against the defendants.

11RBC responded by making Mr. Slaughter a counteroffer to settle all of his outstanding disputes with RBC, including those relating to HCB. Mr. Slaughter did not accept this counteroffer.

12In February 2018 RBC exercised its powers under the security agreement and appointed Grant Thornton as HCB’s receiver. RBC also sent HCB and Mr. Snape a “Notice of Intention to Sell” under the Personal Property Security Act relating to the restaurant equipment.

13The following month, Grant Thornton sold the secured assets to Angus for $20,000. Some months earlier, in June 2017, Grant Thornton had obtained an appraisers report setting the value of the restaurant equipment at approximately $12,000 if liquidated and $24,000 at fair market value.

14Most of the proceeds from the equipment sale went towards paying off HCB’s outstanding HST debt.

15Mr. Snape and Mr. Slaughter state that they only learned that the restaurant equipment had been sold for $20,000 in August 2018, and that they were outraged to learn that the sale price had been this low.

16In December 2018 the defendants moved to have the default judgment against them set aside.

2) The test for setting aside a default judgment

17As Laskin J.A. explained in Intact Insurance Company v. Kisel, 2015 ONCA 205 at para. 14:

On a motion to set aside a default judgment, on the other hand, the court considers five major factors, one of which is whether the defendant has an arguable defence on the merits. The five factors are:

(a) whether the motion was brought promptly after the defendant learned of the default judgment;

(b) whether the defendant has a plausible excuse or explanation for the default;

(c) whether the defendant has an arguable defence on the merits;

(d) the potential prejudice to the defendant should the motion be dismissed, and the potential prejudice to the plaintiff should the motion be allowed; and

(e) the effect of any order the court might make on the overall integrity of the administration of justice.

Again, these factors are not rigid rules. The court has to decide whether, in the particular circumstances of the case, it is just to relieve a defendant from the consequences of default: Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, 372 D.L.R. (4th) 526, at paras. 48-50.

3) Analysis

a) Was the motion brought promptly after the defendant learned of the default judgment?

18The defendants acknowledge that they did not move promptly to have the default judgment set aside when they first learned of it. Instead, they waited more than a year to take any action.

b) Do the defendants have a plausible excuse or explanation for the default?

19The defendants have not provided any real excuse or explanation either for their failure to initially defend the action, or for their dilatoriness in moving to have the default judgment set aside.

20It can reasonably be inferred from the record that the defendants may have not taken any steps to defend against the action at least in part because they hoped they could settle their dispute with RBC by quickly selling the restaurant for an amount that would allow them to repay the outstanding loan. Unfortunately for them, the various conditional sale agreements they negotiated in the summer of 2017 all fell through.

21The situation regarding their failure to take timely steps to have the default judgment against them set aside is somewhat different. As discussed below, all three defendants now claim to have viable defences to RBC’s action. However, on their own evidence they were not aware they had these defences when default judgment was granted in September 2017, and only became aware of them months later. In these circumstances, it seems likely that at least part of the reason the defendants did not promptly move to have the default judgment set aside is that they did not believe at the time that they would be able to do so.

c) Do the defendants have any arguable defences on the merits?

22RBC argues that it is irrelevant whether the defendants have any arguable defences on the merits, relying on the Ontario Court of Appeal’s comment in Sunlife Assurance Company of Canada v. Premier Financial Group Incorporated, 2013 ONCA 151 at para. 1 that:

It is established that a conscious decision not to participate in the proceedings bars consideration of a defence for the merits, even if one exists: Schill & Beninger Plumbing & Heating Ltd. v. Gallagher Estate 2001 CanLII 24134 (Ont. C.A.).

I am not satisfied that the record necessarily supports the conclusion that any of the defendants in this case made a “conscious” or “deliberate” decision not to defend RBC’s lawsuit, as opposed to acting on a perhaps overly optimistic belief that RBC would not press its suit and they would be able to sell the restaurant.

23In any event, I am also not persuaded that Sunlife Assurance – a two-sentence appeal book endorsement – establishes quite as rigid a rule as RBC would have it. To the contrary, in Mountain View Farms Ltd. v. McQueen, supra, Gillese J.A. summarized the five-factor test for setting aside a default judgment and stated (at para. 50):

These factors are not to be treated as rigid rules; the court must consider the particular circumstances of each case to decide whether it is just to relieve the defendant from the consequences of his or her default.

In my view, RBC’s argument that a defendant’s intentional failure to mount a defence makes any consideration of the underlying merits of the action wholly irrelevant cannot be squared with the more flexible balancing test the Ontario Court of Appeal endorsed in Mountain View Farms and then reaffirmed in Intact Insurance, supra. Both of these cases were decided after Sunlife Assurance.

24Accordingly, I will go on to consider whether any of the defendants would have arguable defences to RBC’s action if the default judgment against them were set aside. As I will now explain, I am satisfied that they do not.

i) The alleged failure to properly serve the Statement of Claim (HCB and Snape)

25As his first line of defence, Mr. Snape alleges that he was never properly served with RBC’s Statement of Claim. Mr. Slaughter does not dispute that he was properly served in his personal capacity but maintains on behalf of HCB that proper service was never made on the company.

26HCB’s position is that the manner of service described in RBC’s affidavit of service – which states that the Statement of Claim was handed to Mr. Slaughter’s wife at their home – was defective because their home was not the company’s place of business and she was not an officer, director or agent of the corporation. HCB argues that this manner of service did not comply with the requirements of Rule 16.02(c) of the Rules of Civil Procedure for personal service on a corporation.

27Mr. Snape, for his part, asserts that he was never served at all, and that the affidavit of service stating that he was personally served at his home is simply false. He states that he is confident he was not served because his personal diary entry for the day in question says that he did not get up until some time later in the morning than when the affidavit of service states he was served.

28I am not satisfied that either of these suggested defences would be viable at trial.

29HCB’s proposed defence is purely technical. Mr. Slaughter – the sole director and officer of HCB and its directing mind – was served with RBC’s Statement of Claim, so there is no dispute that the document did come to HCB’s attention. In my view, it is virtually inevitable that a trial judge would validate service on HCB under Rule 16.08(a) even if the manner of service on the corporation were found to be defective, which is not necessarily something HCB will be able to establish in any event.¹

30Mr. Snape’s situation is somewhat different. His affirmative belief that he was not personally served as described in the affidavit of service is severely undermined by his own evidence that he suffers from cognitive problems which he attributes to Lyme disease, and by his repeated failures of memory when he was cross-examined on his own affidavit. His reliance on his own purported diary entry as confirmatory evidence of his belief is undermined by its lack of independence – the only evidence that this document was written on the date in question is Mr. Snape’s own word – and by his acknowledgment in cross-examination that he often did not record business matters in his personal diary.

31In any event, even if Mr. Snape were able to demonstrate at trial that there was some deficiency in the way in which he was served, there is no real question that the claim nevertheless came to his attention, making it in my view virtually inevitable that service against him would be validated under Rule 16.08(a) at trial.

ii) The alleged failure of RBC to prove that Snape signed the guarantee (Snape only)

32Mr. Snape argues further that he will be able to defend against RBC’s claim by taking the position that RBC has not proved the authenticity of his signature on the guarantee agreement. Mr. Snape does not positively assert that he did not sign this document. He acknowledges that he intended to sign it, but maintains that he has no recollection of actually doing so.

33Mr. Snape relies on Mr. Slaughter’s testimony in cross-examination on his affidavit that Mr. Snape was not present when Mr. Slaughter himself signed the guarantee. However, the main thrust of his argument is that he will have a defence at trial because RBC has not yet presented evidence from the bank employee who purports to have witnessed Mr. Snape’s signature on the guarantee.

34In my view, this proposed defence is entirely fanciful. Mr. Snape was by his own admission heavily involved in the HCB restaurant venture, lending his friend Mr. Slaughter a considerable sum of money and joining him as a co-party to the franchise agreement. He acknowledges that he intended to sign the loan guarantee, and in the months after he became aware of RBC’s action against him he conducted himself as if he was indeed a guarantor of HCB’s debt.

35His theory that he perhaps might not have signed the guarantee after all – which, if true, would mean that what purports to be his signature on the guarantee document must have been forged in unknown circumstances – is in my view extraordinarily far-fetched. I am completely unpersuaded that Mr. Snape would be able to mount an arguable defence at trial on this basis.

iii) The alleged invalidity of the guarantee term allowing the bank to deal with “securities” as it saw fit (Slaughter and Snape)

36As discussed further below, the three defendants’ main proposed line of defence is the argument that RBC and its agent Grant Thornton should have got a better price when they sold the restaurant equipment.

37RBC had an obligation under the Personal Property Security Act towards the debtor HCB to dispose of the collateral in a “commercially reasonable” manner. However, the standard-form bank loan guarantee that Mr. Slaughter and Mr. Snape signed contains a provision that, stripped to its essentials, authorizes the bank to deal with the loan and any securities taken or not taken “as it sees fit”. Among other things, this provision is designed to prevent guarantors from escaping their obligations by arguing that the bank failed to act reasonably when it sold or failed to sell the items over which it took, or could have taken, as security interest.

38Mr. Slaughter and Mr. Snape suggest that they may be able to escape the effect of this term of the guarantee at trial by invoking the contra proferentem principle, which holds that when one party is wholly responsible for drafting a contract, any ambiguities in the contractual language should be interpreted in favour of the non-drafting party. They contend that the provision of the guarantee at issue is generally incomprehensible, and argue more specifically that the term “securities” in the provision is ambiguous because this word is sometimes used to refer to stock or bond certificates. On their proposed reading, the guarantee term at issue would not capture “securities” in the alternate sense of “things pledged as collateral”, and would accordingly not relieve the bank of its common law obligation to dispose of this collateral in a commercially reasonable manner.

39RBC points out that Mr. Slaughter and Mr. Snape have both admitted that they did not actually read the terms of the guarantee, and argues that this precludes them from invoking the contra proferentem principle because they cannot claim to have been “induced” to sign the guarantee by the supposed ambiguity in the term at issue. RBC relies on Arthur Andersen Inc. v. Toronto-Dominion Bank, 1994 CanLII 729 (Ont. C.A.) and Hillis Oil & Sales v. Wynn's Canada, 1986 CanLII 44 (SCC), [1986] 1 SCR 57 for the proposition that the party relying on the contra proferentem principle must have been personally induced to sign the contract by the ambiguity in question.

40In my view, RBC’s narrow understanding of the contra proferentem principle is at odds with later statements by the Ontario Court of Appeal. In particular, in S.N.S. Industrial Products Limited v. Bank of Montreal, 2010 ONCA 500 the Court stated (at para. 14):

Verification of account clauses of the type at issue here form part of the Bank’s standard form account documents prepared by the Bank to govern its relations with its customers. We agree with SNS that clauses of this kind are to be construed strictly and, in the event of any ambiguity, against the Bank, as the author of the clause, in accordance with the doctrine of contra preferentem [sic] …

Since standard-form bank documents should be interpreted consistently across different cases, it would make no sense to have their meaning vary depending on whether the bank customer in a particular case actually read them or not. Accordingly, I do not agree with RBC that Mr. Slaughter and Mr. Snape’s admission that they did not read the guarantee bars them from relying on the contra proferentem principle.

41However, I also do not think the contra proferentem principle actually assists Mr. Slaughter and Mr. Snape in this case, since I am not satisfied that the guarantee term at issue is ambiguous. As the Ontario Court of Appeal noted in Dunn v. Chubb Insurance Company of Canada, 2009 ONCA 538 at para. 36:

Contra proferentem is a rule of last resort and will only apply “when all other rules of construction fail”: Canadian National Railway Co. v. Royal and Sun Alliance Insurance Co. of Canada, 2008 SCC 66, [2008] 3 S.C.R. 453, [2008] S.C.J. No. 67, at para. 33, citing Stevenson v. Reliance Petroleum Ltd., 1956 CanLII 27 (SCC), [1956] S.C.R. 936, [1956] S.C.J. No. 68, at p. 953 S.C.R. [page712]

While I agree with the defendants that the clause of the standard-form guarantee agreement to which they object is cumbersomely worded and not easy to read, I do not agree that it is incomprehensible. Indeed, this same clause in RBC’s standard loan guarantee form was treated as readily intelligible by the Ontario Court of Appeal in Royal Bank of Canada v. Samson Management and Solutions Ltd., 2013 ONCA 313 at paras. 25-26.

42Moreover, there is in my view no real ambiguity in the clause’s use of the term “securities”. As Doherty J.A. explained in Dumbrell v. The Regional Group of Companies Inc., 2007 ONCA 59 at paras. 52-53:

No doubt, the dictionary and grammatical meaning of the words (sometimes called the “plain meaning”) used by the parties will be important and often decisive in determining the meaning of the document. However, the former cannot be equated with the latter. The meaning of a document is derived not just from the words used, but from the context or the circumstances in which the words were used. Professor John Swan puts it well in Canadian Contract Law (Markham, Ont.: Butterworths, 2006) at 493:

There are a number of inherent features of language that need to be noted. Few, if any words, can be understood apart from their context and no contractual language can be understood without some knowledge of its context and the purpose of the contract. Words, taken individually, have an inherent vagueness that will often require courts to determine their meaning by looking at their context and the expectations that the parties may have had.

The text of the written agreement must be read as a whole and in the context of the circumstances as they existed when the agreement was created.

The loan guarantees at issue in this case arose in the context of a small business loan made by a bank to a company that was going to use the money to set up a franchise restaurant. All of the parties knew full well that the bank would be “securing” the loan by taking a “security interest” in the restaurant’s equipment and furnishings under the PPSA. Placed in this context, the references in the guarantee agreement to the bank “tak[ing] securities” becomes in my view entirely clear. In this situation the principle of contra proferentem has no application, since there is no genuine ambiguity that has to be resolved.

43Moreover, while Mr. Snape and Mr. Slaughter may not have read the terms of the guarantee, they are both experienced businessmen, and Mr. Slaughter in particular has worked in the restaurant industry for most of his life. I have no doubt that they both knew full well that the bank would be taking a security interest in HCB’s restaurant equipment, and am satisfied that Mr. Snape is being wholly disingenuous when he now claims that it is “impossible for [him] to understand” how the word “securities” in the guarantee agreement could be understood to include the bank’s security interest in this restaurant equipment.

44In any event, as discussed below, even if I were to agree with Mr. Slaughter and Mr. Snape that the clause at issue in the guarantee agreement should be read narrowly to only apply to “securities” in the sense of stock shares, the only consequence of this would be to clear the way for Mr. Slaughter and Mr. Snape to join HCB’s objection to the sale price RBC obtained when it sold HCB’s restaurant equipment. As I will explain, I do not believe this latter argument gives any of the defendants a viable defence in this case.

iv) The alleged commercially improvident sale of the restaurant equipment by RBC’s agent (all defendants)

45The defendants argue that RBC acted improvidently and in a commercially unreasonable manner when it sold HCB’s restaurant equipment to the franchisor Angus for only $20,000. They maintain that the equipment was worth considerably more, that RBC should have used its “leverage” with the franchisor to get a better price, and that RBC’s failure to do so would give them at least a partial defence to RBC’s action.

46In their affidavits, Mr. Slaughter and Mr. Snape both purport to be “outraged” that RBC, through its agent Grant Thornton, sold HCB’s restaurant equipment in 2018 for only $20,000. This equipment was purchased new five years earlier in 2013 for approximately $112,000. However, as RBC points out, some $48,000 of that amount was for flat-screen TVs, which are rapidly depreciating assets.

47Moreover, it is undisputed that Grant Thornton commissioned an appraisal of the restaurant equipment in June 2017 which put its value at approximately $12,000 if liquidated and $24,000 at fair market value. The defendants object that this appraisal report was tendered as an exhibit to an affidavit from a Grant Thornton officer and argues that it should not be admitted for its truth because its author was never cross-examined and his qualifications not established. While the hearsay rule is somewhat relaxed in the context of a civil motion, where affidavits on information and belief can be received, I agree that I should not treat the report as definitively establishing the actual value of the equipment. However, the existence of the appraisal report is nevertheless in my view highly relevant to the question of whether RBC and Grant Thornton acted unreasonably by selling the equipment for $20,000. It might have been unreasonable for them to sell the equipment without first getting it appraised, but they did not do this, and the appraisal report they commissioned set the fair market value of the equipment as only slightly higher than the amount they eventually sold it for almost a year later.

48While the defendants object to the accuracy of the appraisal commissioned by Grant Thornton, they have presented no independent evidence of their own to support their claim that the equipment was worth “much more” than $20,000. In his affidavit, Mr. Slaughter states:

Mr. Snape and I (with 40 years’ experience in the food and beverage industry) always believed it was worth much more than that, and Mr. Snape has advised me that he would have been quite willing to pay much more than that amount …

For his part, Mr. Snape argues that if RBC had accepted his earlier offer to settle its dispute against him in exchange for the bank transferring its security interest in the equipment to him, “it would have had more money, and I would have been able to negotiate a reasonable price for the Restaurant Equipment”.

49In my view, these claims do not stand up to close scrutiny. While Mr. Snape’s settlement offer might have put more money in RBC’s pocket in the short term than it later obtained just from selling the restaurant equipment, accepting his offer would also have required RBC to give up its right to sell the equipment itself and keep the proceeds. RBC stands to make considerably more money by doing what it did instead: namely, getting what it could for the equipment, while also trying to enforce its default judgment against Mr. Snape and the other defendants and obtain more money from them.

50Moreover, the history of the defendants’ unsuccessful attempts to sell HCB’s restaurant as a going concern do not confirm their claim that the restaurant equipment alone was worth “much more” than $20,000. Although they made several abortive attempts to sell the restaurant in the summer of 2017 for amounts in excess of $200,000, when they made their final unsuccessful attempt to sell the restaurant later that fall, they had lowered the sale price to $130,000. For this price, the purchaser would have acquired not only the restaurant equipment, but also the leasehold improvements – which had an original valuation in 2013 of approximately $160,000 – and the goodwill associated with buying the business as a going concern. It cannot be inferred from the sale price that the value of the restaurant equipment alone was substantially more than $20,000. In any event, the sale did not go through.

51I agree with RBC’s counsel that the defendants’ belief that RBC and Grant Thornton should have been able to get a better price for the restaurant equipment can fairly be characterized as Monday-morning quarterbacking. Since everyone agrees that the restaurant equipment had more value if it was left in place and sold as a unit than it would have if it were removed and sold piecemeal, RBC and Grant Thornton were faced with a situation where they had only one realistic purchaser: the franchisor Angus. In this situation, the argument that RBC had “leverage” it could use to extract a higher sale price from Angus is strained. Angus had at least as much leverage of its own to hold out for a lower sale price.

52In these circumstances, I am not satisfied that any of the defendants would have a viable defence based on the claim that RBC did not act in a commercially reasonable manner by selling the restaurant equipment for $20,000. As discussed above, Mr. Slaughter and Mr. Snape are in any event barred from raising this argument by the terms of the guarantee.

d) The potential prejudice to the defendants should the motion be dismissed, and the potential prejudice to the plaintiff should the motion be allowed

53RBC obtained default judgment against the defendants, none of whom appear to have any viable defence, but has been unable to obtain the benefit of this judgment for more than two years. I accept that RBC will be prejudiced by further delay.

54Conversely, holding the defendants to their bargain with RBC by requiring them to pay the money they owe, while obviously not what the defendants would like, does not in my view constitute “prejudice” to them.

e) The effect of any order the court might make on the overall integrity of the administration of justice

55In my view, there is a strong correlation between this factor and the question of whether the defendants have any arguable defences on the merits. Upholding a default judgment against a defendant with an arguable defence on the merits will generally raise significant fairness concerns, although it may in some cases still be necessary to do so to give effect to other competing interests.

56Conversely, however, the overall integrity of the administration of justice would suffer by permitting defendants with no viable defences to game the system by exploiting procedural loopholes in order to put off their day of reckoning. See, e.g., CIBC Mortgages Inc. v. Kwaw, 2012 ONCA 602; CIBC v. Petten, 2010 ONSC 6726.

4) Conclusion

57In my view, all five of the Intact Insurance factors weigh against the defendants. They have no real explanation for their failure to defend the action, they did not move expeditiously to have the default judgment against them set aside, and they would have no discernible defences available to them if it were set aside. In these circumstances, the balance of prejudice and consideration of the impact on the administration of justice also favour dismissing the motion.

58In short, all of the factors bearing on the interest of justice in this case point in the same direction.

59In the result, the defendants’ motion to have the default judgment against them set aside is dismissed with costs.

60If the parties cannot agree as to costs, they may provide me with written submissions, which may be sent electronically to my assistant and served electronically on opposing counsel. RBC’s costs submissions should be served and filed by January 17, 2020, and the defendants’ submissions by January 31, 2020. RBC will then have one week, until February 7, 2020, to serve and file reply costs submissions.

The Honourable J. Dawe

Footnotes

1. 1HCB has not demonstrated that the statement in the affidavit of service that Mr. Slaughter’s wife was “an agent and person authorized” to accept service on HCB’s behalf is necessarily false. Mr. Slaughter states in his affidavit that his wife told him she did not hold herself out to the process server as an agent of the corporation, but HCB has not presented any affidavit evidence from Mr. Slaughter’s wife, and a trier of fact might in any case prefer the evidence of the process server on this point.