Rholan Nelson v. Dr. John B. Weiss and John Does Nos. 1-5
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Rholan NELSON v. Dr. John B. WEISS and John Does Nos.
15
051079
___ S.W.3d ___
Supreme Court of Arkansas
Opinion delivered May 18, 2006
PRETRIAL PROCEDURE – SERVICE OF PROCESS – GOOD CAUSE SHOWN IN MOTION FOR
EXTENSION OF TIME. – Where appellant stated that he had delivered the summons and
complaint to be served to the Washington County Sheriff’s Office prior to the
expiration of the 120day period for service, where he stated that the sheriff’s office
had been unable to serve the appellee, and where he stated that he expected that
appellee’s attorney might raise an insufficiencyofserviceofprocess argument as a
ground for dismissal of the case, the supreme court concluded that appellant’s
statements satisfied the need for a contemporaneous showing of good cause in a
motion for extension of time pursuant to Ark. R. Civ. P. 4(i) and reversed the trial
court’s order of dismissal with prejudice and remanded for further proceedings.
Appeal from Boone Circuit Court; Gordon Webb, Judge; reversed and remanded.
Law Offices of Charles Karr, P.A., by: Charles Karr, for appellant.
Cox, Cox & Estes, PLLC, by: Walter B. Cox and James R. Estes, for appellee.
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HANNAH, C.J. 1
NELSON v. WEISS
Cite as 36_ Ark. ___ (2006)
Page 2
JIM HANNAH, Chief Justice. Appellant Rholan Nelson brings this appeal following
dismissal with prejudice of
his medicalmalpractice complaint against appellee John Weiss, M.D., and John Does 15.
Nelson contends that his complaint was timely filed pursuant to Rule 4(i) of the Arkansas
Rules of Civil Procedure as good cause was shown for an extension of time in which to
obtain service. He further argues that he had a right to rely on the circuit court’s extension
order because he believed that he had submitted good cause for requesting the extension of
time and because he obtained service of process on Dr. Weiss before the extension order was
revoked. Finally, Nelson argues that even if his case should be dismissed, it should be
dismissed without prejudice and he should be entitled to the benefit of the savings statute.
The court of appeals certified this case to us, as it involves the interpretation and further
development of our Rules of Civil Procedure. Thus, our jurisdiction is pursuant to Ark. Sup.
Ct. R. 12(b)(5) and (b)(6). We agree that Nelson demonstrated good cause in his motion
for extension of time. Therefore, we reverse the order of dismissal of the circuit court and
remand for further proceedings.
The record in this case reflects the following sequence of events. Nelson underwent
cardiovascular surgery on January 20, 2003, in which Dr. Weiss was the operating surgeon.
Postoperatively, Nelson developed neuropathic pain in the lower left extremity. On January
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HANNAH, C.J. 1
NELSON v. WEISS
Cite as 36_ Ark. ___ (2006)
Page 3
20, 2005, Nelson filed a medicalmalpractice action, alleging that Dr. Weiss was negligent
in performing the surgery. Pursuant to Rule 4(i), Nelson had 120 days, or until May 20,
2005, to serve Dr. Weiss with the summons and complaint. On May 13, 2005, the summons
was delivered to the Washington County Sheriff’s Office. On May 20, the deadline date for
completion of service, Nelson filed a motion for extension of service, requesting an
additional 120 days in which to perfect service of process. In his motion, Nelson stated that
“[t]he Summons and Complaint have been sent to the Sheriff of Washington County, but they
have been unable to serve the Complaint at this time,” and that “[d]efendant’s attorney may
raise insufficiency of service of process as a ground for dismissal.” The circuit court granted
1
the motion for extension of time “for good cause shown.”
On May 25, 2005, Dr. Weiss was served with the complaint and summons.
Subsequently, Dr. Weiss filed a motion to dismiss the complaint with prejudice, arguing that
Nelson’s motion for extension of time did not demonstrate good cause and, therefore, the
order was invalid and Nelson’s cause of action was barred by the twoyear statute of
limitations for medical malpractice. The circuit court agreed and dismissed Nelson’s
complaint with prejudice.
1
It appears that the circuit court signed the extension order on May 20, 2005, and
the order was filed with the Boone County Circuit Clerk on May 27, 2005.
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HANNAH, C.J. 1
NELSON v. WEISS
Cite as 36_ Ark. ___ (2006)
Page 4
Although Nelson raises three arguments on appeal, we need only address his first
argument because it is dispositive of this case. Nelson contends that he demonstrated good
cause for extending the time for service; thus, the circuit court erred in dismissing his
complaint with prejudice.
Rule 4(i) provides, in relevant part:
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. If a motion to
extend is made within 120 days of the filing of the suit, the time for service
may be extended by the court upon a showing of good cause.
Thus, two requirements must be met to obtain an extension of service under Rule 4(i):
(1) the timely filing of a motion for extension, and (2) a showing of good cause. Henyan v.
Peek, 359 Ark. 486, 199 S.W.3d 51 (2004)(citing King v. Carney, 341 Ark. 955, 20 S.W.3d
341 (2000)). It is undisputed that Nelson’s motion for extension was timely filed. In its
letter opinion, the circuit court concluded that, pursuant to our holding in Henyan, supra,
Nelson failed to present in his motion for extension any basis for a finding of good cause.
Nelson contends that Henyan is distinguishable from the instant case. We agree.
In Henyan, appellants were granted two extensions of time to complete service of
process on two appellees. One of the appellees was served prior to the expiration of the
second period of extension; however, the other appellee was not served until one day after
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HANNAH, C.J. 1
NELSON v. WEISS
Cite as 36_ Ark. ___ (2006)
Page 5
the period ended, and appellants sought a third extension to serve him. Before the trial court
could rule on appellants’ motion for extension, appellees filed motions to set aside the two
prior orders on the ground that appellants had failed to make a showing of good cause to
support the extension. The trial court granted the motions to set aside, denied appellants’
third extension motion, and dismissed the suit. We affirmed, stating:
In the present case, it is undisputed that Appellants made no showing of good
cause to extend the time for service under Rule 4(i). It is this omission that
distinguishes the present case from King, 341 Ark. 955, 20 S.W.3d 341. In
that case, the motion filed by the plaintiff’s attorney provided the following
three reasons to justify the extension: (1) he had just received relevant hospital
reports; (2) he had just been made aware that one of the defendants who was
also the agent of service for the professional association was deceased; and (3)
he was exploring settlement options.
Here, neither of Appellants’ motions offered any cause, let alone good cause,
for the extensions. Moreover, there is nothing in the trial court’s orders
indicating that the time for service was being extended upon a showing of
good cause. Without a contemporaneous showing of good cause to grant the
extensions, Appellants have failed to strictly comply with the service
requirements of Rule 4(i).
Henyan, 359 Ark. at 49394, 199 S.W.3d at 55 (emphasis added).
In the case at bar, cthe record reflects that Nelson’s motion did offer cause for the
extension. As previously noted, Nelson stated that, while he had delivered the summons and
complaint to the Washington County Sheriff’s Office prior to the expiration of the 120day
period, the sheriff’s office had been unable to serve Dr. Weiss and, further, Nelson stated
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HANNAH, C.J. 1
NELSON v. WEISS
Cite as 36_ Ark. ___ (2006)
Page 6
that he expected that Dr. Weiss’s attorney might raise the issue of insufficiency of service
of process as a ground for dismissal. As to the insufficiencyofserviceofprocess argument,
we agree with Dr. Weiss’s contention that the mere fact that a defendant may raise a defense
he is entitled to raise does not amount to “good cause” for an extension of time past 120 days
to effect service. However, we believe that Nelson’s assertion that “[t]he Summons and
Complaint have been sent to the Sheriff of Washington County, but they have been unable
to serve the Complaint at this time,” satisfies the need for a contemporaneous showing of
good cause in a motion for extension of time pursuant to Rule 4(i).
Based on the foregoing, the order of dismissal with prejudice is reversed, and this
matter is remanded for further proceedings.
Reversed and remanded.
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HANNAH, C.J. 1
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