Orr v. Calicott
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Cite as 2009 Ark. App. 857
ARKANSAS COURT OF APPEALS
DIVISION II
No. CA08-640
TASHA ORR, PERSONAL
REPRESENTATIVE OF THE ESTATE
OF MELVIN WOODSON, JR.,
DECEASED
APPELLANT
Opinion Delivered DECEMBER
16, 2009
APPEAL FROM THE FAULKNER
COUNTY CIRCUIT COURT,
[NO. CIV-2007-134]
V.
HONORABLE MICHAEL A. MAGGIO,
JUDGE
TIMOTHY CALICOTT, M.D. AND
STEPHEN HUDSON, M.D.
APPELLEES
AFFIRMED IN PART; REVERSED
AND REMANDED IN PART
ROBERT J. GLADWIN, Judge
This is the second time that this case has been before us. The primary issue is whether
a dismissal of a plaintiff’s complaint for lack of proper venue becomes one with prejudice if the
plaintiff appeals the venue issue and loses on appeal.1 The Faulkner County Circuit Court held
that our affirmance of the earlier dismissal was with prejudice. We reverse and remand for
further proceedings.2
Appellant Tasha Orr, individually and as court-appointed personal representative of the
estate of her infant son Melvin Woodson, Jr., filed a complaint in the Lee County Circuit Court
1
Prior to submission, we attempted to certify this issue to the supreme court. However, the
court declined to accept our certification.
2
There are three other secondary issues raised. As discussed below, we affirm on those
issues.
Cite as 2009 Ark. App. 857
alleging that appellees Timothy Calicott, M.D., and Stephen Hudson, M.D. (collectively, the
doctors), committed medical negligence and wrongful death. The doctors filed a motion to
dismiss in which they alleged that venue was improper in Lee County because treatment was
rendered in Faulkner County and Woodson was a resident of Faulkner County. The Lee
County court initially denied the doctors’ motion. Orr then filed a second amended complaint,
and the doctors filed another motion to dismiss for lack of venue, alleging that they had
discovered additional information that contradicted Orr’s claim that venue was proper in Lee
County. Following a second hearing, the Lee County court granted the doctors’ motion to
dismiss. We affirmed. Orr v. Calicott, No. CA05-594 (Ark. App. May 3, 2006) (unpublished).
After the supreme court denied review, Orr refiled her complaint in Faulkner County.
The doctors filed a motion to dismiss, alleging that Orr had waived her right to plead further
by appealing the dismissal of her action in Lee County. The circuit court agreed with the
doctors and dismissed Orr’s complaint with prejudice. This appeal followed.
Although listed as Orr’s second point on appeal, we first discuss her argument that the
circuit court erred in dismissing her complaint with prejudice. The doctors relied on the
supreme court’s decision in Servewell Plumbing, LLC v. Summit Contractors, Inc., 362 Ark. 598,
210 S.W.3d 101 (2005), where there is language that, when a plaintiff has the option of
pleading further or appeal, the right to plead further is lost if the plaintiff appeals. Under the
circumstances of this case, we believe that the reliance upon Servewell is misplaced because the
Servewell court relied on cases decided under Ark. R. Civ. P. 12(b)(6) (2009) for the proposition
that the dismissal was with prejudice. Moreover, the venue issue and the merits of the
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underlying claims in Servewell were so intertwined that there could not be a second appeal,
making a dismissal with prejudice appropriate in that case. In the present case, the merits have
yet to be considered.
The Servewell court’s reliance on cases decided under Rule 12(b)(6) was mistaken. A
motion to dismiss under Rule 12(b)(6) permits a defendant to challenge not only the legal
sufficiency of the complaint, that is, whether the substantive law affords relief, but also the
factual sufficiency of the complaint, which is whether the plaintiff has alleged sufficient factual
information to determine whether he is entitled to relief. Mann v. Orrell, 322 Ark. 701, 912
S.W.2d 1 (1995). When a complaint is dismissed under Ark. R. Civ. P. 12(b)(6) for factual
insufficiency, the dismissal should be without prejudice. Sluder v. Steak & Ale of Little Rock, Inc.,
368 Ark. 293, 245 S.W.3d 115 (2006). A plaintiff then has the election to either plead further
or appeal. Id. If an appeal is taken, the option to plead further is waived in the event of an
affirmance. Id. Thus, when a case is dismissed for factual insufficiency, a determination has been
made that goes to the merits of the plaintiff’s case. In other words, the plaintiff cannot recover
because he has not stated sufficient facts that will allow him to recover under any recognized
legal theory. See Poston v. Fears, 318 Ark. 659, 887 S.W.2d 520 (1994).
On the other hand, a dismissal for improper venue does not go to the merits of whether
the plaintiff can recover. All that has been determined is that the plaintiff brought suit in the
wrong county. Under Arkansas Rule of Civil Procedure 41(b) (2009), an involuntary dismissal,
such as Orr suffered in the Lee County case, is ordinarily without prejudice unless there has
been a prior dismissal. Also a dismissal without prejudice is not an adjudication on the merits
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and will not bar a subsequent suit on the same cause of action. Middleton v. Lockhart, 344 Ark.
572, 43 S.W.3d 113 (2001); Magness v. McEntire, 305 Ark. 503, 808 S.W.2d 783 (1991).
Both the supreme court and this court have decided cases where the issue of improper
venue has been appealed by the plaintiffs after dismissal of their complaint. Fraser Bros. v. Darragh
Co., 316 Ark. 297, 871 S.W.2d 367 (1994); Parsons Dispatch, Inc., v. John J. Jerue Truck Broker,
Inc., 89 Ark. App. 25, 199 S.W.3d 686 (2004). In neither case did the appellate court suggest
that the appeal served to bar further action by the plaintiff in the proper venue. In fact, in
Parsons Dispatch we expressly stated that the affirmance was without prejudice, language which
was quoted with approval by the supreme court in Servewell.
We reject the doctors’ argument that the savings statute, Ark. Code Ann. § 16-56-125
(Repl. 2005), cannot be used to save Orr’s action because it does not contain any tolling
provisions. Our supreme court has consistently given a liberal interpretation to the savings
statute. Lubin v. Crittenden Mem’l Hosp., 288 Ark. 370, 705 S.W.2d 872 (1986); Young v. Garrett,
212 Ark. 693, 208 S.W.2d 189 (1948). Our case law is replete with instances where a plaintiff
has had his or her complaint dismissed on procedural grounds not reaching the merits, been
allowed to appeal the dismissal, and then refile after losing the appeal. See Lyons v. Forrest City
Mach. Works, Inc., 301 Ark. 559, 785 S.W.2d 220 (1990)(Lyons I)(lack of proper service on the
defendant); Forrest City Mach. Works, Inc. v. Lyons, 315 Ark. 173, 866 S.W.2d 372 (1993) (Lyons
II); Carton v. Missouri Pac. R.R., 295 Ark. 126, 747 S.W.2d 93 (1988)(Carton I)(lack of federal
subject-matter jurisdiction); Lubin, supra (Lubin I)( lack of federal subject-matter jurisdiction).
If the savings statute is not tolled during the appeal of a dismissal on a procedural issue, the
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above cases would not have been allowed to proceed because more than one year elapsed
between the dismissal of the action, the appeal, and the commencement of the second action.
Here the circuit court erroneously held that the earlier dismissal had been with prejudice
once Orr appealed. Orr refiled her action in the proper venue, Faulkner County, within one
year of the earlier dismissal of the Lee County action becoming final. See West v. G.D. Searle
& Co., 317 Ark. 525, 879 S.W.2d 412 (1994). Therefore, we reverse and remand the case for
further proceedings.
We now turn to Orr’s other points for reversal, none of which have merit. Those points
spring from the manner in which the doctors sought to assert that the dismissal of Orr’s
complaint should have been with prejudice. In their initial motion to dismiss, the doctors
alleged only that Orr had waived the right to plead further by appealing from the dismissal in
Lee County. The doctors later amended and supplemented their motion to dismiss to allege
that, not only had Orr waived her right to plead further, there was no longer any venue in
which Orr’s complaint could be heard. Orr filed both a response to the motion and her own
motion for default judgment, alleging that the doctors had failed to properly plead or defend
because the “waiver” defense asserted by the doctors could only be asserted in their answer,
not by motion. Orr later filed a motion seeking to strike the doctors’ motion to dismiss, as well
as a motion seeking Rule 11 sanctions. The circuit court denied Orr’s various motions and she
now appeals those rulings.
First, Orr has waived the right to have the doctors’ motions to dismiss stricken because
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she responded to the doctors’ motions prior to seeking to have them stricken. Arkansas Rule
of Civil Procedure 12(f) (2009) allows the court to strike pleadings or other matters; however,
if it is done on the motion of a party, as here, the motion to strike must be made before
responding to the allegedly objectionable pleading. By filing a response to the initial motion to
dismiss, Orr has waived her right to have the motion stricken. Likewise, she has also waived her
right to have the doctors’ amended motion stricken because she responded to the motion. Thus,
the circuit court did not abuse its discretion by not granting Orr’s motion to strike.
Second, the circuit court likewise did not abuse its discretion in not finding that the
doctors had violated Arkansas Rule of Civil Procedure 11 (2009) by raising their defense in the
manner that they did. Ward v. Dapper Dan Cleaners & Laundry, Inc., 309 Ark. 192, 828 S.W.2d
833 (1992).
Orr is correct that, when a circuit court determines that a violation of Rule 11 has
occurred because an attorney has signed pleadings in violation of the rule, the rule makes
sanctions mandatory. Parker v. Perry, 355 Ark. 97, 131 S.W.3d 338 (2003). However, the circuit
court has discretion in determining whether a violation of Rule 11 occurred. Bratton v. Gunn,
300 Ark. 140, 777 S.W.2d 219 (1989). Moreover, it is the moving party’s burden to adduce
proof of the violation alleged in its motion for sanctions under Rule 11. Pomtree v. State Farm
Mut. Auto. Ins. Co., 353 Ark. 657, 121 S.W.3d 147 (2003); Bratton, supra.
Rule 11 allows
the court to sanction a party for filing a pleading for an improper purpose. Orr asserts that the
doctors filed their motions to dismiss in order to manipulate the judicial system and deny her
a day in court. However, where the doctors reasonably, but mistakenly, relied on the supreme
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Cite as 2009 Ark. App. 857
court’s decision in Servewell, Orr has failed in her burden of showing that the motion to dismiss
was filed for an improper purpose so as to warrant sanctions. See Jones v. Jones, 320 Ark. 449,
898 S.W.2d 23 (1995).
Finally, Orr’s contention that she was entitled to a default judgment because the doctors
never properly answered her complaint is likewise without merit. A default judgment may be
granted when a party against whom a judgment is sought fails to plead or otherwise defend. Ark.
R. Civ. P. 55(a) (2009) (emphasis added). The entry of a default judgment is discretionary
rather than mandatory. Collins v. Keller, 333 Ark. 238, 969 S.W.2d 621 (1998). Arkansas Rule
of Civil Procedure 8(f) (2009) provides that pleadings shall be liberally construed so as to do
substantial justice. This rule of liberal construction of looking to the substance of a pleading
beyond its actual form has been applied to motions. Cornett v. Prather, 293 Ark. 108, 737
S.W.2d 159 (1987).
It cannot be seriously argued that the doctors did not defend against Orr’s complaint.
Their motion to dismiss went to the merits of Orr’s claim, one of the hallmarks of a “responsive
pleading.” See Nucor Corp. v. Kilman, 358 Ark. 107, 186 S.W.3d 720 (2004). The citation to
Servewell should have alerted Orr that the doctors were claiming that the earlier dismissal was
with prejudice. This is made clear in paragraph 5 of the motion that asserts that, “[e]ven if the
dismissal is considered to be without prejudice . . . .” Therefore, the circuit court did not abuse
its discretion in denying Orr’s motion for a default judgment.
Affirmed in part; reversed and remanded in part.
VAUGHT, C.J., and MARSHALL, J., agree.
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Cite as 2009 Ark. App. 857
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