Valley v. Helena National Bank
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Cite as 2009 Ark. App. 783
ARKANSAS COURT OF APPEALS
DIVISION I
No.
J.F. VALLEY,
CA09-164
APPELLANT
Opinion Delivered 18
NOVEMBER 2009
V.
APPEAL FROM THE PHILLIPS
COUNTY CIRCUIT COURT,
[NO. CV-2003-163]
HELENA NATIONAL BANK,
APPELLEE
THE HONORABLE HARVEY L.
YATES, JUDGE
AFFIRMED
D.P. MARSHALL JR., Judge
This is the sequel to our en banc decision in Valley v. Helena National Bank, 99
Ark. App. 270, 259 S.W.3d 461 (2007). There we reversed a default judgment against
Valley based on ineffective service. After our mandate issued, the Bank refiled its debt
case—the 2007 case—against Valley. But the first case—the 2003 case—had not yet
been dismissed. Valley then moved in the 2003 case for return of money that the Bank
had collected by garnishment based on the reversed judgment and for dismissal based
on our mandate. At the same time, Valley moved to dismiss the 2007 case, citing Rule
of Civil Procedure 12(b)(8) and arguing from the continued pendency of the first case.
The circuit court heard argument on both motions in both cases at the same
time. It decided that the 2003 case “must be dismissed” under Rule of Civil
Cite as 2009 Ark. App. 783
Procedure 4(i) and that it could “take no further action in said case.” The court also
ruled that the Bank “had no other remedy than to file a new suit,” and therefore
refused to dismiss the 2007 case. The court elaborated that “[a]ny claim for refund or
credit for garnishments” by Valley must be made in the 2007 case. Valley appeals the
dismissal of the 2003 case. He also challenges the circuit court’s refusal to consider in
that case his request for return of his money collected on the reversed judgment.
We hold that, on this record, the circuit court made no reversible legal error.
The words of Rule of Civil Procedure 4(i) are plain. “If 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.” There was no valid service on Valley in the 2003 case; that was our
holding in the first appeal. The lack of good service meant that the circuit court
correctly dismissed the 2003 case pursuant to this court’s mandate. Trusclair v.
McGowan Working Partners, 2009 Ark. 203, at 3–5, ___ S.W.3d ___, ___.
Nor do we see any error in the circuit court’s refusal to entertain Valley’s refund
motion in the 2003 case. The pendency of the 2007 case puts the refund issue in a
unique context. Requiring Valley to litigate the refund issue in a second proceeding
is neither unfair nor impractical. If the 2007 case did not exist, then Rule 4(i)’s
command that a case of failed service “shall be dismissed” might run aground on other
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Cite as 2009 Ark. App. 783
settled law granting a remedy to a party in Valley’s circumstances. By statute and
precedent, a judgment debtor can recover property lost pursuant to a reversed
judgment. Ark. Code Ann. § 16-67-329 (Repl. 2005); Peek Planting Co., Inc. v. W.H.
Kennedy & Sons, Inc., 257 Ark. 669, 671–73, 519 S.W.2d 49, 51 (1975); Mothershead
v. Douglas, 219 Ark. 457, 461, 243 S.W.2d 761, 763 (1951); Dodson v. Butler, 101 Ark.
416, 420–21, 142 S.W. 503, 505 (1912). But the pending 2007 case removes any
difficult issue as far as this litigation is concerned. The 2007 case provides a new
vehicle through which Valley may be made whole.
The Bank’s partial collection on the vacated judgment through the garnishments
raises other interesting issues. The Bank argued res judicata, laches, and preclusion
below, contending that Valley waived the right to get his money back by not
challenging the garnishments in the first appeal. We do not decide these issues. They
are for the 2007 case, which is not before us. We hold only that the circuit court
correctly decided that all the issues remaining between these parties could and should
be pursued in an action other than the 2003 case.
Affirmed.
ROBBINS and BAKER, JJ., agree.
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