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Ogden v. Hughes

Court of Appeals of Arkansas, Division II

February 4, 2015

DANNIE OGDEN and RUTH OGDEN, APPELLANTS
v.
RANDALL HUGHES, APPELLEE

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT. NO. CV-13-1506. HONORABLE DOUG MARTIN, JUDGE.

Buckley, McLemore & Hudson, P.A., by: John R. Hudson, for appellants.

Reece Moore Pendergraft, LLP, by: Larry McCredy, for appellee.

PHILLIP T. WHITEAKER, Judge. VAUGHT and HOOFMAN, JJ., agree.

OPINION

Page 759

PHILLIP T. WHITEAKER, Judge

Appellants Dannie and Ruth Ogden challenge an order of the Washington County Circuit Court dismissing their complaint with prejudice. On appeal, the Ogdens contend that the second dismissal of their complaint should have been without prejudice because a literal application of Arkansas Rule of Civil Procedure 41(b) leads to a " harsh and absurd" result. We find no error and affirm.

I. Procedural History

The Ogdens filed their first complaint against appellee Randall Hughes in 2012, alleging that Hughes owed them $97,734.58 pursuant to a promissory note. Hughes moved to dismiss the complaint against him on the basis that the Ogdens failed to make proper service of summons on him within 120 days of the filing of the complaint. The circuit court agreed and granted Hughes's motion, dismissing the Ogdens' complaint without prejudice.[1] On July 30, 2013, the Ogdens refiled their complaint. On December 2, 2013, the Ogdens filed a motion to extend the time for service and for warning order. The circuit court entered an order the same day, granting the request.

Hughes subsequently moved to dismiss the Ogdens' second complaint, asserting that their motion for extension of time to obtain service had to have been filed within 120 days of the July 30, 2013 filing of the complaint, or by November 27, 2013. Because the motion for extension was untimely filed on December 2, 2013, Hughes argued that their motion failed to comply with Arkansas Rule of Civil Procedure 4(i)

Page 760

and that the complaint should therefore be dismissed. Moreover, because any dismissal would be a second dismissal under Rule 41, Hughes contended that the dismissal should be with prejudice.

The Ogdens responded that their complaint should not be dismissed with prejudice due to the " unique" nature of the case. The Ogdens raised three matters to support the case's " uniqueness." First, the Ogdens argued that Hughes had been " refusing and evading service," and for that reason, public policy dictated that the complaint should not be dismissed with prejudice " due to a small technical violation that has nothing to do with the merits." Second, they argued that their attorney's mother had been killed in a plane crash on November 1, 2013. While the motion for extension of time to obtain service had been prepared on October 26, 2013, the " sudden and unexpected nature" of the death was a contributing factor in the failure to file the motion to extend time for service within the 120 days, which ended on November 27, 2013, the day before Thanksgiving. Third, the Ogdens noted that the extension motion had been filed on Monday, December 2, 2013, the next day that the courthouse was open after the holiday.

Following a hearing, the circuit court entered an order rejecting the Ogdens' arguments and dismissing their second complaint with prejudice. The court found that the first complaint had been dismissed for failure to comply with the Rules of Civil Procedure (i.e., failure to effectuate proper service). The court further determined that the second complaint was being dismissed due to the failure of service. Accordingly, the court concluded ...


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