APPEAL FROM THE POLK COUNTY CIRCUIT COURT. NO. CV-13-123. HONORABLE TED C. CAPEHEART, SPECIAL JUDGE.
Orvin W. Foster, for appellants.
Matthews, Sanders & Sayes, by: Doralee Chandler and Roy Gene Sanders, for appellee.
GRUBER and GLOVER, JJ., agree.
BART F. VIRDEN, Judge.
Appellants Russell and Geneva Cagle assert that though they failed to perfect service on appellee Jeffrey Terwilliger, they should have been allowed to take advantage of Arkansas Code Annotated section 16-56-126, the savings statute, because they were defrauded into believing service was not necessary. The circuit court dismissed the case with prejudice. We affirm.
Russell and Geneva Cagle were involved in a car accident with Jeffrey Terwilliger on September 4, 2010, and sustained injuries from the collision. The Cagles had until September 4, 2013, to file a complaint against Terwilliger before the three-year statute of limitations ran. On August 20, 2013, they filed their complaint and had 120 days, until December 18, 2013, to perfect service. A summons was also issued on August 20, but service was never completed, and the Cagles do not dispute that fact. On October 18, 2013, Terwilliger filed a response, though he had not yet been served, and in his response he reserved the right to object on jurisdictional grounds. Specifically, in paragraph two of his response he stated:
The Defendant reserves the right to plead further and reserves objections on the basis of (1) lack of jurisdiction over the subject matter (2) lack of jurisdiction over the person, (3) improper venue (4) insufficiency of process, (5) insufficiency of service process[.]
December 18, 2013 passed without completion of service upon Terwilliger. On February 7, 2014, Terwilliger filed a motion to dismiss with prejudice pursuant to Rule 12 of the Arkansas Rules of Civil Procedure. On February 25, 2014, the Cagles filed their response to the motion to dismiss, asserting Terwilliger waived any further need for service by filing a response to the complaint. They alleged they were deceived by Terwilliger into not perfecting service and attached an affidavit to their response to his motion relating the details of the alleged fraud. Orvin Foster, attorney for the Cagles, stated in the affidavit that a couple of days after he filed the complaint, a representative of Terwilliger called him and wanted to negotiate a settlement. Foster asserted the representative asked him to forgo service of summons during that time, thereby tricking him into letting the time for service lapse. The Cagles asserted the filing of the answer to the complaint reserving the lack-of-service defense was intentionally deceitful and in furtherance of the fraud.
Terwilliger's attorney, Roy Gene Sanders, denied the allegation of deceit in his response and attached a series of letters from Progressive Northwestern Insurance Company documenting a lack of communication from Foster about the Cagles' case. The letters to Foster document unheeded requests for medical bills, unreturned phone calls, and a general lack of communication by phone and by mail. The letters to Terwilliger notified him of a lawsuit that would be filed against him. Sanders also included an affidavit from Elizabeth Hill, one of the claims adjusters involved
in the case, who stated Foster repeatedly failed to provide information, and ignored her attempts to communicate with him. Sanders asserted the letters from the claims adjuster indicated the lawsuit was active, progressing, and gave Foster every indication that service should be completed. Hill, in her affidavit, also stated she had ...