Rettig v. Ballard
Annotate this Case
Download PDF
Cite as 2009 Ark. 629
SUPREME COURT OF ARKANSAS
No.
JIMMY RETTIG,
09-361
Opinion Delivered December
APPELLANT,
VS.
ALTON BALLARD, Individually and as
agent/employee of MISSISSIPPI COAST
CARRIERS AND MISSISSIPPI COAST
CARRIERS, INC.,
APPELLEE,
17, 2009
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
NO. 08-872,
HON. WILLARD PROCTOR, JR.,
JUDGE,
REVERSED AND REMANDED.
JIM HANNAH, Chief Justice
Jimmy Rettig appeals a Pulaski County Circuit Court order dismissing his complaint
with prejudice. The circuit court found that dismissal was required because Rettig failed to
serve a complaint and valid summons within the 120 days allowed by Arkansas Rule of Civil
Procedure 4(i). Further, because the statute of limitations had expired by the time appellees
Alton Ballard and Mississippi Coast Carrier filed their motion to dismiss, the circuit court
dismissed the action with prejudice. Rettig argues that the circuit court erred in finding that
the service of a complaint and defective summons failed to trigger the Arkansas savings statute
and protect him from expiration of the statute of limitations. We agree. We assumed
jurisdiction of this case because it concerns a significant issue needing clarification. See Ark.
Sup. Ct. R. 1-2(b)(5).
Cite as 2009 Ark. 629
On February 11, 2005, Rettig was involved in a traffic accident with a truck owned
by Mississippi Coast Carrier and driven by Ballard. According to Rettig, his vehicle was rearended. On January 23, 2008, Rettig filed a complaint in circuit court. Two summonses
were issued on February 22, 2008, and February 29, 2008, respectively. Both summonses
incorrectly informed the defendants that a pleading responsive to the complaint had to be filed
within twenty days from the date of service, despite the fact that as out-of-state defendants,
Mississippi Coast Carrier and Ballard, would have thirty days within which to respond. A
summons and complaint were timely served on each defendant by registered mail addressed
to them in Tennessee.
Appellees filed a motion to dismiss, arguing that the summonses were defective,
rendering the case subject to dismissal under Arkansas Rule of Civil Procedure 4(b).
Appellees further argued that because the statute of limitations had run, the complaint had to
be dismissed with prejudice. Retting moved to amend his summonses; however, this motion
was not filed within the 120 days permitted by Arkansas Rule of Civil Procedure 4(i). On
that basis, the circuit court found that it was without jurisdiction to hear the motion to amend
the summonses. It further found that the summonses were defective in failing to inform
defendants they had thirty days within which to file a responsive pleading, and that this meant
no action was ever commenced for purposes of the savings statute. Because the statute of
limitations ran in the meantime, the circuit court dismissed the action with prejudice.
Rettig argues the circuit court erred in denying him the benefit of the savings statute.
-2-
09-361
Cite as 2009 Ark. 629
The savings statute is currently codified in Arkansas Code Annotated section 16-56-126
(Repl. 2005), and provides, relevant to this case, that if an action is “commenced” within the
applicable statute of limitations period, and the plaintiff suffers a nonsuit,1 a new suit may be
“commenced” within one year from the date of the dismissal.
It is settled law that, being in derogation of the common law, statutory service
requirements are strictly construed and compliance must be exact. Jones v. Turner, 2009 Ark.
545, at 3-4, ___ S.W.3d ___, ___. This court construes its rules in the same manner. Id.,
___ S.W.3d at ___. Arkansas Rules of Civil Procedure 12(a) provides that a defendant not
residing in this state “shall file an answer within 30 days after service.” Arkansas Rules of
Civil Procedure 4(b) requires a summons to state “the time within which these rules require
the defendant to appear, file a pleading, and defend.” Strictly construing Rule 4(b), the
summonses in the present case were defective in that they indicated that the defendant had
twenty days to respond. See Trusclair v. McGowan Working Partners, 2009 Ark. 203, ___
S.W.3d ___; Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d
525 (2003).
We note that savings statutes are remedial in nature. Linder v. Howard, 296 Ark. 414,
417, 757 S.W.2d 549, 551 (1988). The savings statute reflects the General Assembly’s “intent
to protect those who, although having filed an action in good faith and in a timely manner,
would suffer a complete loss of relief on the merits because of a procedural defect.” Id. at
1
This court has held that for purposes of the savings statute, a dismissal is the same as a nonsuit.
Carton v. Missouri Pac. R.R. Co., 295 Ark. 126, 128, 747 S.W.2d 93, 94 (1988).
-3-
09-361
Cite as 2009 Ark. 629
418, 757 S.W.2d at 551. “The savings statute extends the time for a plaintiff to correct a
dismissal without prejudice when the statute of limitations would otherwise bar the suit.”
Oxford v. Perry, 340 Ark. 577, 582, 13 S.W.3d 567, 570 (2000). It applies where “the original
statute of limitations period expires in the interim between the filing of the complaint and the
time at which either a nonsuit is entered or the judgment is reversed or arrested.” Elzea v.
Perry, 340 Ark. 588, 592, 12 S.W.3d 213, 216 (2000).
The savings statute provides that before the statute applies, an action must have been
commenced. Ark. Code Ann. § 16-56-126(a). For purposes of the savings statute, a suit is
commenced when the complaint is timely filed and service of the complaint and summons
(effective or defective), is completed within the 120-day period required by Rule 4(i):
In sum, to toll the limitations period and to invoke the saving statute, a plaintiff
need only file his or her complaint within the statute of limitations and
complete timely service on a defendant. A court’s later ruling finding that
completed service invalid does not disinherit the plaintiff from the benefit of
the saving statute. Our interpretation of §16-56-126 meets with the liberal and
equitable construction which must be given it in order to give litigants a
reasonable time to renew their cause of action when they are compelled to
abandon it as a result of their own act or the court’s.
Forrest City Mach. Works, Inc. v. Lyons, 315 Ark. 173, 177, 866 S.W.2d 372, 374 (1993); see
also Thomson v. Zufari, 325 Ark. 208, 209, 924 S.W.2d 796, 797 (1996) ([T]o 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 benefitting from the one-year savings statute.”). We note that the
-4-
09-361
Cite as 2009 Ark. 629
appellees argue the savings statute is inapplicable because the summons was flawed. For this
argument, they rely on David Newbern & John J. Watkins, Arkansas Civil Practice and
Procedure 5.9, at p. 102 (4th ed. 2006) where the treatise provides that, “[s]ervice of a flawed
summons does not commence an action.” Appellees misread the treatise. The quoted
statement is found in section 5.9 which concerns “Commencement of action.” This section
discusses when an action is commenced generally, however, section 5.10 of the treatise is the
relevant section and concerns the “Savings statute.” Section 5.10 correctly provides that the
savings statute permits a plaintiff to “commence a new action,” and that the savings statute
applies if a “timely, completed attempt at service is made but later held to be invalid.” David
Newbern & John J. Watkins, Arkansas Civil Practice and Procedure 5.10, at p. 102-04 (4th
ed. 2006). The savings statute permits a new commencement of the action, in other words
an opportunity to correct a dismissal without prejudice by timely service of valid process
when the statute of limitations would otherwise bar the suit.
In the case before us, the complaint was filed before the three-year statute of
limitations expired. See Ark. Code Ann. § 16-56-105 (Repl. 2005). Service of the complaint
and defective summonses was made on defendants within the 120 days allowed under Rule
4(i).2 Thus, while the summonses were defective, the action was commenced for purposes
of the savings statute because the statute protects those who in good faith file and timely serve
2
We note that the parties argue about Rettig’s attempt to file a motion to amend the summonses.
Because the motion was not filed within the 120 period from the date the complaint was filed as required
by Arkansas Rule of Civil Procedure 4(i), it was untimely and of no effect. However, we need not address
the issue on appeal because it does not alter our decision.
-5-
09-361
Cite as 2009 Ark. 629
an action who would otherwise suffer a complete loss of relief on the merits due to a
procedural defect, in this case in the language contained in the summonses. See Smith, 353
Ark. 701, 711, 120 S.W.3d 525, 531 (2003) (summonses, among other defects, stated an outof-state defendant had twenty days within which to respond to the complaint rather than
thirty days). In Smith, the court noted Smith’s argument that having timely served the
complaint and defective summons, she had commenced the action for purposes of tolling the
statute of limitations or invoking the savings statute. The court then stated that, “[w]hile the
assertion may be accurate, it is not dispositive.” Smith, 353 Ark. at 711, S.W.3d at 531. We
take this opportunity clarify this statement. In Smith, the appeal concerned a complaint that
had been dismissed twice. That altered the outcome as to defendant Moncrief due to the
application of Arkansas Rule of Civil Procedure 41. Although under Rule 4(i), a failure to
serve valid process within the 120 day period results in a mandatory dismissal without
prejudice, Rule 41 may intercede and require a dismissal be entered with prejudice. In Smith,
the dismissal was the second dismissal as to defendant Moncrief, and Rule 41 required that
the dismissal to be entered with prejudice. However, the dismissal was only the first dismissal
as to defendant Sherwood; therefore, Rule 41 had no application, and the circuit court erred
in failing to follow Rule 4(i) and enter the dismissal against Sherwood without prejudice.3
Smith, 353 Ark. at 712, 120 S.W.3d at 532.
3
We note that this analysis applied only to Sherwood’s contract claims because her fraud claims
were barred by the statute of limitations before it was refiled and then amended to add Sherwood;
therefore, the dismissal as to the fraud claims was properly entered with prejudice. See Smith v. Sidney
Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 713 120 S.W.3d 525, 533 (2003).
-6-
09-361
Cite as 2009 Ark. 629
In the present case, the dismissal at issue was the first dismissal. The case was correctly
dismissed for failure to comply with the requirement that valid service of process be
completed within 120 days. See Ark. R. Civ. P. 4(i). Where a summons misstates the time
within which an out-of-state defendant must respond to a complaint, dismissal of the
complaint without prejudice is mandatory under Rule 4(i). Trusclair, 2009 Ark. 203, at 6, ___
S.W.3d ___, ___.4 Thus, in this case the complaint had to be dismissed, but the circuit court
erred in dismissing it with prejudice. Because the complaint was timely filed and the
complaint and summons, though defective, were timely served, the savings statute applies.
Reversed and remanded.
IMBER, J., not participating.
4
We note that while dismissal without prejudice of the complaint due to a defective summons
was mandatory in Trusclair v. McGowan Working Partners, 2009 Ark. 203, at 6, ___ S.W.3d ___, ___, the
case was dismissed with prejudice under Arkansas Rule of Civil Procedure 41 because it was the second
dismissal.
-7-
09-361
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
