Edward J. DeBartolo Corp. v. Cartwright

EDWARD J. DEBARTOLO CORPORATION v. Vallie
CARTWRIGHT

94-1147                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered March 4, 1996


1.   Pleading -- amended pleadings -- pleading in response -- time
     limits. -- Rule 15(a) of the Arkansas Rules of Civil Procedure
     provides that a party shall plead in response to an amended
     pleading within the time remaining for response to the
     original pleading or within twenty days after service of the
     amended pleading, whichever period is longer.

2.   Pleading -- amended pleadings -- earlier appellate-court
     opinion contained broad language conflicting with holding in
     present case -- overruled. -- Where the appellate-court
     opinion in Tom E. Jones Constr. Co. v. Holmes, 11 Ark. App.
     88, 666 S.W.2d 412 (1984), contained some broad language that
     could be read to say that the filing of an amended complaint
     does not affect the defendant's time for response, the supreme
     court overruled the decision to the extent that it conflicted
     with the holding in the present case.

3.   Pleading -- amended pleadings -- amended complaint generally
     supersedes original complaint. -- An amended complaint, unless
     it adopts and incorporates the original complaint, supersedes
     the original complaint. 

4.   Pleading -- amended pleadings -- appellant's time for response
     should have been calculated from date of service of amended
     complaint -- entry of default judgment prior to expiration of
     response time was improper. -- Where the circuit court denied
     appellant's motion to set aside a default judgment on the
     basis that it had not timely responded to appellee's original
     complaint, the supreme court held that appellant's time for
     response should have been calculated from the date of service
     of the amended complaint; therefore, the entry of a default
     judgment prior to the expiration of the response time was
     improper, and the matter was reversed and remanded.


     Appeal from Phillips Circuit Court; Olly Neal, Judge; reversed
and remanded.
     The Hardison Law Firm, by: M. Scott Willhite, for appellant.
     Wilson & Associates, by: E. Dion Wilson, for appellee.


     Bradley D. Jesson, Chief Justice.03-04-96   *ADVREP1*





EDWARD J. DEBARTOLO
CORPORATION,
                    APPELLANT,

V.

VALLIE CARTWRIGHT,
                    APPELLEE,




94-1147


APPEAL FROM THE PHILLIPS COUNTY
CIRCUIT COURT,
NO. CIV93-196,
HON. OLLY NEAL, JUDGE,




REVERSED AND REMANDED.




                Bradley D. Jesson, Chief Justice

     
     The issue on appeal is whether the trial court erred in
denying the appellant's motion to set aside a default judgment.  We
hold that the default judgment should have been set aside and
therefore reverse and remand the case.
     On September 30, 1993, Vallie Cartwright filed a complaint in
Phillips County Circuit Court naming "DeBartlo, Inc." as 
defendant.  The complaint alleged that "DeBartlo, Inc." was an out-
of-state corporation and the owner of Raleigh Springs Mall in
Memphis.  Ms. Cartwright claimed that on June 21, 1992, she slipped
and fell at the mall and that her injuries were proximately caused
by the defendant's negligence.  A summons was likewise directed to
"DeBartlo, Inc."
     The complaint and summons were sent by certified mail to
Prentice Hall Corporate Services, Inc. in Little Rock, purportedly
the agent for service of process in Arkansas for "DeBartlo, Inc." 
Prentice Hall received the suit papers on October 4, 1993, and
immediately returned them to Ms. Cartwright's counsel.  The papers
were accompanied by a letter stating that service was improper
because the name of the corporate defendant was incorrect.
     On October 14, 1993, Ms. Cartwright filed an amended
complaint.  It did not adopt and incorporate the original
complaint, or make any reference to it.  However, it was the same
in all respects as the original complaint except the defendant's
name had been changed to "Edward J. DeBartolo Corporation."  The
amended complaint and summons were sent to Prentice Hall and
received on October 18, 1993.  Fifteen days later, on November 2,
1993, a default judgment was entered against "DeBartlo, Inc. (a/k/a
Edward J. DeBartolo Corporation)".  The judgment declared that the
corporation had failed to answer the complaint against it within 20
days.
     On November 5, 1993, eighteen days after service of the
amended complaint, the appellant filed two pleadings:  a motion to
dismiss, primarily alleging lack of personal jurisdiction, and a
motion to set aside the default judgment.  In its motion to set
aside, the appellant claimed that it had twenty days from the date
the amended complaint was served in which to file a response,
thereby making the November 2 default judgment premature.
     The trial court denied the motion to set aside and found that
the appellant's time for responding was measured from October 4 --
the date the original complaint naming "DeBartlo, Inc." was served
on Prentice Hall.  In two subsequent motions, the appellant asked
for a ruling on the personal jurisdiction question.  No hearing was
held, but the court ultimately found that service on the
appellant's Arkansas agent and the appellant's appearance on the
motion to set aside waived any objection to jurisdiction.  On June
22, 1994, the court entered its final order, awarding $7,500 in
damages to Ms. Cartwright.
     The appellant presents two arguments:  1) the October 4
service was defective because it did not contain the correct
corporate name of the defendant, and 2) its time for response
should have been measured from service of the amended complaint
rather than the original complaint.  Because we agree with the
appellant's second argument, it is not necessary to reach the
first.
     Rule 15(a) of the Arkansas Rules of Civil Procedure provides
that a party shall plead in response to an amended pleading within
the time remaining for response to the original pleading or within
20 days after service of the amended pleading, whichever period is
longer.  Assuming, strictly for the sake of explanation, that both
the October 4 service and the October 18 service were proper, the
appellant had the longer of the following times to respond:  1) the
time remaining for response to the original complaint (response due
October 24),  or 2) twenty days after service of the amended
complaint (response due November 7).  The longer of the two periods
would have made the response due November 7.  Therefore, the
appellant was not in default when judgment was entered against it
on November 2.  Further, its motion to dismiss filed on November 5
was a timely response to the amended complaint.
     The appellee relies on the case of Tom E. Jones Constr. Co. v.
Holmes, 11 Ark. App. 88, 666 S.W.2d 412 (1984), to support her
argument that the response time should be measured from service of
the original pleading.  In that case, Jones was sued and served
with an original complaint.  Twelve days later, the plaintiff filed
an amended complaint adding another defendant.  Jones failed to
answer the original complaint in a timely fashion, but argued that
the filing of an amended complaint extended its response time.  The
court of appeals disagreed and upheld entry of a default judgment. 
The facts are somewhat distinguishable from this case.  Jones,
unlike the appellant herein, was never served with an amended
complaint, so was hardly in a position to argue entitlement to
additional response time.  However, despite the distinguishing
factors in Jones, it contains some broad language which could be
read to say that, in a situation like the instant one, the filing
of an amended complaint does not affect the defendant's time for
response.  To the extent that Jones conflicts with our holding
today, it is overruled.
     We have found one case from another jurisdiction which
contains a similar fact situation.  In Reichert v. TRW, Inc., 531
Pa. 193, 611 A.2d 1191 (1992), a defendant, Falcon, did not respond
to an original complaint, claiming service was defective.  Prior to
seeking a default judgment against Falcon, the plaintiff filed an
amended complaint.  The Pennsylvania court did not address the
issue of defective service of the original complaint, but instead
considered the amended complaint the operative pleading.  The court
stated:

     [the] appellees, by not taking the default prior to the
     amendment [of their complaint] and by including Falcon in
     their amended complaint, foreclosed their ability for
     default judgment on the original complaint.   


     The Reichert case incorporates the widely recognized doctrine
that an amended complaint, unless it adopts and incorporates the
original complaint, supersedes the original complaint.  See C.
Wright, A. Miller, & M. Kane, 6 Federal Practice and Procedure,
1476 at 556-57 (1990);  J. Moore, 3 Moore's Federal Practice, 15-
08[7] (2d ed. 1995);  W. L. Scott, Inc. v. Madras Aerotech, Inc.,
103 Idaho 736, 653 P.2d 791 (1982);  Hall v. Insurance Co. of North
America, 666 A.2d 805 (R.I. 1995);  In re Marriage of Lockwood, 857 P.2d 557 (Colo. App. 1993). 
     Based upon the foregoing, we hold that the appellant's time
for response should have been calculated from the date of service
of the amended complaint.  Therefore, the entry of a default
judgment prior to the expiration of the response time was improper.
     The appellant raises one additional issue on appeal, arguing
that it was not subject to the jurisdiction of the Arkansas courts. 
The record does not reflect that the matter was fully developed at
the trial level.  A motion to dismiss and brief in support were
filed, alleging a lack of contacts with the state of Arkansas. 
Later, the appellant supplemented the motion with an affidavit from
a corporate representative.  No response was filed by the appellee,
nor was a hearing held on the matter.  
     It is possible that the trial judge, in light of the entry of
default judgment, did not feel it necessary to fully explore the
jurisdictional issue.  Since the default judgment is now set aside,
this issue may be revisited upon remand.
     Reversed and remanded.
     Special Justices Mary Ann Westphal, Jerry Canfield and
Charlene Marsh join in this opinion.
     Dudley, Glaze and Corbin, JJ., not participating.