Thomson v. Zufari

Karla THOMSON v. Munir ZUFARI, M.D.

96-269                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered July 1, 1996


1.   Civil procedure -- service of process -- how one-year savings
     statute is invoked. -- In order to commence an action, the
     plaintiff must complete service upon the defendant within 120
     days from filing the complaint; however, if the plaintiff
     fails to complete service during that period, he or she may
     still request that the time be extended to complete service in
     order to protect the plaintiff against the running of a
     statute of limitations if that extension is requested within
     the 120-day period; to toll the limitations period to invoke
     the one-year savings statute, a plaintiff need only file his
     or her complaint within the statute of limitations and
     complete timely service on a defendant; even where a court
     later finds the plaintiff's timely completed service was
     invalid, the plaintiff is not debarred from benefiting from
     the one-year savings statute.  

2.   Civil procedure -- service never completed -- one-year savings
     statute inapplicable. -- Appellant never obtained completed
     service upon the appellee within the 120-day period, and while
     she requested an extension to obtain service within the
     initial 120 days, she was granted only 30 days, ending on
     August 1, 1994; appellant continued to be unable to serve
     appellee and did not obtain a voluntary nonsuit of her
     complaint until September 14, 1994; as a consequence,
     appellant never completed service so as to toll the statute of
     limitations and invoke the one-year savings statute. 

3.   Civil procedure -- service of process not up to clerk -- pro
     se appellant had responsibility to obtain service. --
     Appellant's assertion that the clerk was required to issue a
     summons and deliver it to the sheriff, and that it was not
     fair for her to be penalized because of the action or inaction
     of the clerk was meritless; ARCP Rule 4 contemplates placing
     the summons with the plaintiff's attorney, who then is to see
     that the summons is served by an appropriate official; pro se
     litigants are held to the same requirements to which attorneys
     are held.


     Appeal from Sebastian Circuit Court; John G. Holland, Judge;
affirmed. 
     Karr & Hutchinson, by:  Charles Karr, for appellant.
     Shaw, Ledbetter, Hornberger, Cogbill & Arnold, by:  R. Ray
Fulmer, II and Charles R. Ledbetter, for appellee.


     Tom Glaze, Justice.*ADVREP*SC3*






KARLA THOMSON,
                    APPELLANT,

V.

MUNIR ZUFARI, M.D.,
                    APPELLEE.



96-269

Opinion Delivered:  7-1-96

APPEAL FROM THE CIRCUIT COURT
OF SEBASTIAN COUNTY, NO. CIV-
95-500(II); HONORABLE JOHN G.
HOLLAND, CIRCUIT JUDGE 


AFFIRMED





                  TOM GLAZE, Associate Justice

     On March 6, 1992, appellee Munir Zufari, M.D., performed
gastric bypass surgery on appellant Karla Thomson, and during the
surgery, a portion of Thomson's small bowel was mistakenly stapled. 
Complications later resulted and Thomson was required to undergo
additional surgery.  On March 4, 1994, two days short of the two-
year statute of limitations provided under Ark. Code Ann.  16-114-
203(a) (Supp. 1995), Thomson filed a pro se complaint for medical
malpractice against Zufari and two other parties.  While under ARCP
Rule 4(1) Thomson had until July 2, 1994, or 120 days after filing
her complaint to obtain service and commence her lawsuit, she for
some reason was unable to do so.  However, on June 23, 1994, within
the initial 120-day commencement, Thomson asked for another 120
days, but on July 28, 1994, the trial court granted and entered
only a 30-day extension.  Still unable to obtain service on Zufari
and the other defendants, Thomson, on August 18, 1994,  moved to
dismiss without prejudice, which the trial court granted on
September 14, 1994.
     When Thomson refiled her complaint against Zufari on
August 11, 1995, Zufari moved for summary judgment, alleging
Thomson's claim was barred by the two-year statute of limitations. 
The trial court granted Zufari's motion from which Thomson brings
this appeal.  The trial court ruled correctly, and we must affirm.
     Arkansas's rules pertaining to commencement of an action
require only that the plaintiff complete service upon the defendant
within 120 days from filing the complaint.  However, if the
plaintiff fails to complete service during that period, he or she
may still request that the time be extended to complete service in
order to protect the plaintiff against the running of a statute of
limitations if that extension is requested within the 120-day
period.  Hicks v. Clark, 316 Ark. 148, 870 S.W.2d 750 (1994).  We
have further said that, to toll the limitations period to invoke
the one-year savings statute, Ark. Code Ann.  16-56-126 (1987), a
plaintiff need only file his or her complaint within the statute of
limitations and complete timely service on a defendant.  Even where
a court later finds the plaintiff's timely completed service was
invalid, the plaintiff is not debarred from benefiting from the
one-year savings statute.  Id.
     Here, Thomson never obtained completed service upon Zufari
within the 120-day period, and while she requested an extension to
obtain service within the initial 120 days, she was granted only 30
days, ending on August 1, 1994.  Thomson continued to be unable to
serve Zufari, and did not obtain a voluntary nonsuit of her
complaint until September 14, 1994.  As a consequence, Thomson
never completed service so as to toll the statute of limitations
and invoke the one-year savings statute. 
     Before leaving the foregoing issue, we mention Thomson's
suggestion that the 30-day extension she obtained ran from July 28,
1994, the date her motion was granted.  Rule 6 of the Arkansas
Rules of Civil Procedure provides that a court may enlarge a period
originally prescribed if requested before the expiration of that
period.  Here, Thomson made a timely request within the 120-day
period, but the court's grant of 30 days merely enlarged the
originally prescribed 120 days, thereby extending it to August 1,
1994.
     Finally, Thomson cites Rule 4 of the Arkansas Rules of Civil
Procedure which provides that, upon the filing of the complaint,
the clerk shall forthwith issue a summons and cause it to be
delivered for service.  She asserts the clerk was required to issue
a summons and deliver it to the sheriff, and it is not fair for her
to be penalized because of the action or inaction of the clerk. 
Our Rule 4 contemplates placing the summons with the plaintiff's
attorney who then is to see that the summons is served by an
appropriate official.  Reporter's Notes to Rule 4:2 (1996).  Cf.
Ottens v. State, 316 Ark. 1, 871 S.W.2d 329 (1994).  As we have
held many times, pro se litigants are held to the same requirements
to which attorneys are held.  Jewell v. Ark. State Bd. of Dental
Examiners, 324 Ark. 463, ____ S.W.2d ____ (1996).
     Affirmed.
     DUDLEY, J., not participating.