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McClurkin v. Willis

Court of Appeals of Arkansas, Division IV

April 26, 2017

TREVOR MCCLURKIN APPELLANT
v.
LAUREN JENAE WILLIS AND MARK WILLIS APPELLEES

         APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. 66FCV-16-51] HONORABLE J. MICHAEL FITZHUGH, JUDGE

          Taylor & Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha C. Taylor, for appelant.

          Munson, Rowlett, Moore & Boone, P.A., by: Mary Carole Young, Amy Tracy, and Ashleigh Phillips, for appellees.

          RITA W. GRUBER, Chief Judge

         This case arose out of a motor-vehicle accident, but the issues before us on appeal are entirely procedural. Appellant Trevor McClurkin appeals from the circuit court's (1) denial of his motion for extension of time to serve appellees, Lauren Jenae Willis and Mark Willis; (2) dismissal of Lauren based on the court's conclusion that appellant's second amended complaint did not relate back to the original complaint; and (3) denial of appellant's motion to vacate the prior dismissal of Mark with prejudice. With regard to the first two points, we reverse and remand for proceedings consistent with this opinion; we affirm the third point as modified.

         The history of this case is convoluted and difficult to decipher. On February 11, 2013, appellant was allegedly injured in a motor-vehicle accident. Lauren, who was a minor at the time, was driving the other vehicle involved in the accident. On January 19, 2016, appellant filed a complaint against Mark, the father of Lauren, alleging that Mark caused the accident by negligently failing to pay attention to traffic conditions and colliding with appellant's vehicle. Although he had not been served, Mark filed a motion to dismiss on April 18, 2016, contending that he was not involved in the motor-vehicle accident, was therefore an "improper party" to the lawsuit, and should be dismissed as a matter of law. He asked the court to dismiss the complaint against him "with prejudice." Appellant filed a response on April 21, 2016, acknowledging that Mark was not the driver of the vehicle; requesting the court to allow him to amend the complaint to list the "correct named party, " Debra Kay, Mark's wife, as the defendant; and asking the court to deny Mark's motion to dismiss. Appellant attached a first amended complaint naming Debra Kay Willis as the defendant to his response. The court entered an order on April 21, 2016, granting Mark's motion to dismiss and indicating that a party may amend his or her pleadings at any time without leave of court, noting that appellant "has done so in naming Debra Kay Willis as Defendant."[1]Finally, on May 2, 2016, the court entered a second order finding that Mark was not a proper party to the lawsuit and dismissing the complaint against him "with prejudice."

         On May 16, 2016, after discovering that Debra Kay was not the driver of the vehicle, appellant filed a second amended complaint, this time against Lauren and Mark, alleging that Lauren's negligence proximately caused the accident and that Mark was liable for negligent entrustment. Because the original complaint was filed on January 19, 2016, service was required to have been made by May 18, 2016, "within 120 days after the filing of the complaint." Ark. R. Civ. P. 4(i)(1) (2016). At this point, appellant had not served either Mark or Lauren.

         On May 17, 2016, appellant filed a motion for extension of time to complete service on both Lauren and Mark. In the motion, appellant alleged that he had retained a process server to serve the second amended complaint on both defendants. Service had been attempted on Lauren at three different addresses. At two of the addresses, the process server had been advised that Lauren was no longer a resident, and service had been unsuccessfully attempted twice at the third address. The motion alleged that Mark had been served without a file-marked summons and that additional attempts had been difficult "as Mark Willis attempted to avoid service."

         On May 20, 2016, appellant filed a motion to vacate the dismissal entered against Mark on April 21, 2016, and an additional motion to extend the time to serve Mark. On June 3, 2016, appellant filed another motion to vacate both the April 21, 2016, dismissal and the dismissal entered on May 2, 2016, and to extend the time to serve Mark, clarifying that the motion to vacate was pursuant to Rule 60.[2] On May 26, 2016, Mark filed a combined objection to appellant's motions to amend the complaint, to vacate the dismissal, and to extend the time for service; a motion to strike; and a motion to dismiss. He argued, among other things, that the relation-back doctrine of Arkansas Rule of Civil Procedure 15 did not apply because Mark had been dismissed with prejudice on May 2, 2016, and Lauren did not have proper notice of the pending action. He argued that the claims against Mark and Lauren were brought after the statute of limitations had run and therefore the claims were time-barred. He also claimed that appellant had not demonstrated good cause to vacate the order of dismissal against him or to obtain an extension of time for service.

         On June 7, 2016, the court entered an order dismissing Debra Kay as a defendant because she had passed away before the accident occurred. The court entered a second order on June 7, 2016, denying appellant's motion to vacate the dismissal of Mark and granting Mark's motion to dismiss the second amended complaint. The court gave no explanation for its denial of appellant's motion to vacate the dismissal against Mark with prejudice, but it made the following findings regarding the other motions:

The Statute of Limitations for Plaintiff's cause of action is three (3) years. As previously noted the accident occurred on February 11, 2013. The Second Amended Complaint naming Lauren Jenae Willis as a Defendant was filed on May 16, 2016, well past the statutory time period.
Plaintiff asserts that the relation-back doctrine is applicable. However, there is nothing in the pleadings to show that Lauren Jenae Willis had notice of the suit....
As to Mark Willis the Statute of Limitations has also expired. Further, service was not had on Mark Willis within one-hundred twenty (120) days. Plaintiff's Motion for Extension to Serve was untimely.

         For his first point on appeal, appellant contends that the circuit court abused its discretion by denying his motion to extend the time for service of process. Rule 4(i) of the Arkansas Rules of Civil Procedure states that a complaint shall be dismissed without prejudice as to a defendant if service of the summons and complaint is not made within 120 days of the filing of the complaint unless the time has been extended pursuant to the rule. Ark. R. Civ. P. 4(i)(1). The rule provides, however, that the time for service may be extended "upon written motion and a showing of good cause . . . if the motion is made within 120 days of the filing of the suit or within the time period established by a previous extension." Ark. R. Civ. P. 4(i)(2). We review the ...


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