Bakker v. Ralston

John L. BAKKER, D.D.S. v. Anna RALSTON and
Judy Champlin

96-510 (consolidated with 96-511)                  ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered November 11, 1996


1.   Civil procedure -- second dismissal is with prejudice where
     dismissal is for failure to obtain service and voluntary
     nonsuit has previously been taken. -- Where a dismissal is
     granted for failure to obtain service and the plaintiff has
     previously taken a voluntary nonsuit, the second dismissal is
     to be with prejudice.

2.   Civil procedure -- ARCP Rule 4(i) -- "without prejudice"
     language not applicable if cause of action barred by statute
     of limitations. -- The language of ARCP Rule 4(i) that
     provides for dismissal "without prejudice" for failure to
     obtain service upon a defendant within 120 days after filing
     the complaint is not applicable if a plaintiff's cause of
     action is otherwise barred by the statute of limitations.

3.   Civil procedure -- ARCP Rules 4(i) and 41(b) distinguished --
     The supreme court noted that ARCP Rule 4(i) applies when there
     is a failure to obtain service and nothing more; ARCP Rule
     41(b), however, is expressly addressed to a situation where
     there has been more than one dismissal, whether voluntary or
     involuntary; under Rule 41, while a plaintiff may take a
     voluntary nonsuit without prejudice, there is a limit to the
     number of times a case can be dismissed, regardless of whether
     the dismissals are voluntary under subdivision (a) or
     involuntary under subdivision (b). 

4.   Civil procedure -- trial court erred in granting second
     dismissals without prejudice. -- In this case, appellees'
     failure to serve appellant was a failure to comply with ARCP
     Rule 4(i), or "a failure of the plaintiff to comply with these
     rules" as provided in ARCP Rule 41(b); such a failure results
     in an involuntary dismissal pursuant to Rule 41(b); because
     these cases had previously been dismissed, Rule 41(b) required
     that the second dismissals operate as adjudications on the
     merits; accordingly, the supreme court held that the trial
     court erred in granting the dismissals without prejudice. 

5.   Courts -- appellate court decision overruled. -- Where the
     supreme court's decisions in this case and in Dougherty v.
     Sullivan, 318 Ark. 608, 887 S.W.2d 305 (1994), were in direct
     conflict with the opinion of the court of appeals in Gilmore
     v. Bryant, 49 Ark. App. 26, 894 S.W.2d 607 (1995), the supreme
     court overruled Gilmore.

6.   Limitation of actions -- saving statute -- effect of. -- Where
     a complaint is filed within the limitations period, nonsuited,
     and then refiled within the one-year savings statute, Ark.
     Code Ann.  16-56-126 (1987), the complaint is held to be
     within the limitations period if service was obtained within
     120 days.

7.   Appeal & error -- result affirmed but modified to reflect that
     dismissals were with prejudice. -- The supreme court held that
     the dismissals in these cases should have been granted with
     prejudice to future actions as adjudications on the merits;
     thus, the court affirmed the result but modified it to reflect
     that the dismissals were with prejudice.


     Appeal from Washington Circuit Court; Kim Smith, Judge;
affirmed as modified.
     Davis, Cox & Wright, P.L.C., by: Walter B. Cox and Tim E.
Howell, for appellant.
     Laura J. McKinnon, for appellees.
     
     Donald L. Corbin, Justice.
     Appellant, John L. Bakker, D.D.S., appeals two orders of the
Washington County Circuit Court dismissing without prejudice two
complaints against him for dental malpractice, breach of fiduciary
duty, outrageous conduct, and invasion of privacy.  The dismissals
were granted based on failure to serve Appellant with the
summonses.  Appellant contends the dismissals should have been with
prejudice because separate Appellees Anna Ralston and Judy Champlin
had previously taken voluntary nonsuits.  We find merit to
Appellant's argument and therefore affirm the orders of dismissal
but modify them as being with prejudice.
     This appeal consolidates two cases filed separately by
Appellee Ralston and Appellee Champlin; both cases involve the same
issue on appeal.  The court of appeals certified this case to us
pursuant to Ark. Sup. Ct. R. 1-2(d).  This appeal requires
interpretation of the Arkansas Rules of Civil Procedure,
specifically Rules 4 and 41, and resolution of a conflict between
a decision of this court and the court of appeals.    
     Appellee Champlin filed her first complaint on March 5, 1992. 
Appellee Ralston filed her first complaint on December 10, 1993. 
Both complaints were dismissed by voluntary nonsuits on
December 15, 1994.  Both complaints were refiled on June 20, 1995,
but summonses were never served on Appellant.  Neither Appellee
Champlin nor Appellee Ralston moved for an extension of the 120-day
period to obtain service as provided in ARCP Rule 4(i).   
     Relying on Rule 4(i), Appellant filed motions to dismiss both
complaints for failure to obtain service upon him.  Appellant
argued that, although Rule 4(i) provides that a dismissal for
failure to obtain service be without prejudice, these dismissals
should be with prejudice pursuant to ARCP Rule 41(b) because
Appellees had previously dismissed their complaints voluntarily. 
The trial court entered an order granting Appellant's motion to
dismiss, but denying the request that the dismissal be without
prejudice.  This appeal followed.  Appellant makes the same
argument on appeal that he made to the trial court in his motion to
dismiss.
     We note that neither Appellee Champlin nor Appellee Ralston
have challenged on appeal the trial court's findings that service
was not obtained or that an extension was not sought. 
Consequently, those issues are not before us in this appeal.  We
note also that Appellee Champlin and Appellee Ralston did not file
a brief in this appeal.
     Rule 4(i) provides in pertinent part that "[i]f service of the
summons is not made upon a defendant within 120 days after the
filing of the complaint, the action shall be dismissed as to that
defendant without prejudice upon motion or upon the court's
initiative."   Rule 41(b), however, provides:
     In any case in which there has been a failure of the
     plaintiff to comply with these rules . . . the court
     shall cause notice to be mailed to the attorneys of
     record . . . that the case will be dismissed for want of
     prosecution . . . . A dismissal under this subdivision is
     without prejudice to a future action by the plaintiff
     unless the action has been previously dismissed, whether
     voluntarily or involuntarily, in which event such
     dismissal operates as an adjudication on the merits.

     Although without expressly addressing the overlap of these two
procedural rules, this court has stated that when a dismissal is
granted for failure to obtain service and the plaintiff has
previously taken a voluntary nonsuit, the second dismissal is to be
with prejudice.  Dougherty v. Sullivan, 318 Ark. 608, 887 S.W.2d 305 (1994).  This court has also stated that Rule 41(b)'s
requirement that second dismissals operate as adjudications on the
merits applies to a plaintiff's failure to comply with a statutory
notice-of-intent-to-sue requirement.  Dawson v. Gerritsen, 295 Ark.
206, 748 S.W.2d 33 (1988).  Along somewhat similar lines, this
court has stated that the "without prejudice" language of Rule 4(i)
is not applicable if a plaintiff's cause of action is otherwise
barred by the statute of limitations.  Green v. Wiggins, 304 Ark.
484, 803 S.W.2d 536 (1991).  
     Dougherty, 318 Ark. 608, 887 S.W.2d 305, controls this case as
the facts are substantially similar.  Both cases involve a first
dismissal by voluntary nonsuit followed by a second dismissal for
failure to obtain service.  As for the overlap of Rules 4(i) and
41, we note that Rule 4(i) applies when there is a failure to
obtain service and nothing more.  See Green, 304 Ark. at 489, 803 S.W.2d  at 539.  Rule 41(b), however, is expressly addressed to a
situation similar to the one presented here where there has been
more than one dismissal, whether voluntary or involuntary.  Rule 41
expresses that while a plaintiff may take a voluntary nonsuit
without prejudice, there is a limit to the number of times a case
can be dismissed, regardless of whether the dismissals are
voluntary under subdivision (a) or involuntary under subdivision
(b).  See reporter's notes to Rule 41.  Here, Appellees' failure to
serve Appellant was a failure to comply with Rule 4(i), or "a
failure of the plaintiff to comply with these rules" as provided in
Rule 41(b); such a failure results in an involuntary dismissal
pursuant to Rule 41(b).  Because these cases had previously been
dismissed, Rule 41(b) requires that the second dismissals operate 
as adjudications on the merits.  Accordingly, we hold that the
trial court erred in granting these dismissals without prejudice. 
     Our decision today and our decision in Dougherty, 318 Ark.
608, 887 S.W.2d 305, is in direct conflict with Gilmore v. Bryant,
49 Ark. App. 26, 894 S.W.2d 607 (1995), although Dougherty was
decided four months prior to Gilmore.  Accordingly, we overrule
Gilmore, 49 Ark. App. 26, 894 S.W.2d 607, and note that the trial
court's reliance on Gilmore was misplaced.  In his letter opinion,
the trial court distinguished Dougherty and Gilmore on the basis
that the complaint in Dougherty was barred by limitations.  Such a
distinction cannot be made on the facts as reported in Dougherty. 
Furthermore, the first paragraph of the Dougherty opinion expressly
states that no limitations questions are discussed.  Moreover, the
trial court's distinction overlooks the rule that when a complaint
is filed within the limitations period, nonsuited, and then refiled
within the one-year savings statute, Ark. Code Ann.  16-56-126
(1987), the complaint is held to be within the limitations period,
so long as service was obtained within 120 days.  See Carton v.
Missouri Pac. R.R. Co., 295 Ark. 126, 747 S.W.2d 93 (1988), and
Green, 304 Ark. 484, 803 S.W.2d 536. 
     For the reasons aforementioned, the dismissals in these cases
should have been granted with prejudice to future actions as
adjudications on the merits.  As is our practice in such cases, we
affirm the result but modify to the extent the dismissals are with
prejudice.  See generally Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984); see also Haase v. Starnes, 323 Ark. 263, 915 S.W.2d 675
(1996) (modifying from without prejudice to with prejudice) and
Insurance From CNA v. Keene Corp., 310 Ark. 605, 839 S.W.2d 199
(1992) (modifying dismissals under ARCP Rule 41).
     Affirmed as modified.
     Roaf, J., not participating.