FROM THE PHILLIPS COUNTY CIRCUIT COURT [NO. 54CV-15-204]
HONORABLE CHALK S. MITCHELL, JUDGE
Etherly, for appellant.
Chester C. Lowe, Jr., P.A., by: Chester C. Lowe, Jr., for
RAYMOND R. ABRAMSON, Judge
Johnson appeals the Phillips County Circuit Court order
dismissing his declaratory-judgment action against Equity
Insurance Company (Equity). On appeal, Johnson argues that
the circuit court erred in dismissing the suit. We
March 4, 2012, Johnson was a passenger in a car that was
rear-ended by a vehicle driven by Anthony Weeden. Equity
insured the car that Weeden was driving at the time of the
accident. Johnson filed suit against Weeden in the Phillips
County Circuit Court for negligence arising out of the
accident, and he obtained a jury verdict in the amount of $8,
on August 18, 2015, Equity filed a declaratory-judgment
action against Johnson and Weeden in the Pulaski County
Circuit Court. Equity sought an order declaring that its
liability coverage on the car did not exist at the time of
September 11, 2015, Johnson filed a declaratory-judgment
action against Equity in the Phillips County Circuit Court.
He sought an order declaring that Equity's liability
coverage on the car extended to the accident. Johnson also
alleged a bad-faith claim against Equity. Johnson served
Equity with the complaint on September 16, 2015.
October 1, 2015, Equity filed a motion in the Phillips County
Circuit Court to dismiss Johnson's complaint pursuant to
Arkansas Rule of Civil Procedure 12(b)(3) and (b)(8). Equity
asserted that because it filed suit first in Pulaski County
on the issue of liability coverage, it established venue
there, and Johnson's suit in Phillips County should be
dismissed. Johnson responded that the case should not be
dismissed because even though Equity filed suit first in
Pulaski County, Equity had not served him with a summons in
that suit. He pointed out that he perfected service on Equity
in the Phillips County case on September 16, 2015. Thus,
Johnson argued that the first to both file and perfect
service established proper venue. After Johnson had filed his
response, Equity served him with the Pulaski County complaint
on November 20, 2015.
January 15, 2016, the Phillips County Circuit Court held a
hearing on Equity's motion to dismiss, and on that same
day, the court entered a written order granting the motion
and dismissing Johnson's complaint. Johnson timely
appealed the order to this court.
appeal, Johnson argues that the court erred in dismissing his
action because he established venue first by filing suit and
serving Equity in the Phillips County action before Equity
served him in the Pulaski County action. In making this
argument, he relies on our supreme court's decision in
Farm Bureau Mutual Insurance Co. of Arkansas v.
Gadbury-Swift, 2010 Ark. 6, 326 S.W.3d 291, asserting
that it stands for the proposition that venue is established
only after a complaint is filed and service is obtained.
Johnson points out that Gadbury-Swift cites
Hicks v. Wolfe, 228 Ark. 406, 413-14, 307 S.W.2d
784, 789 (1957), and Hicks specifically states that
"litigants . . . determine venue by diligence in filing
suit and obtaining process."
Johnson's argument without merit. Gadbury-Swift
does not hold that venue is fixed only after service is
obtained. Gadbury-Swift holds that the first party
to file suit establishes venue and the doctrine of forum
nonconveniens cannot be invoked to dismiss a suit when venue
is proper in another county. Gadbury-Swift, 2010
Ark. 6, 326 S.W.3d 291. The Gadbury-Swift court
cited Hicks only to support its proposition that the
doctrine of forum nonconveniens did not apply between
the Arkansas Rules of Civil Procedure were adopted following
Hicks, and Rule 3 states that an action "is
commenced by filing a complaint with the clerk of the
court." See Ark. R. Civ. P. 3. Arkansas law
prior to Rule 3 provided an action was commenced by filing a
complaint and placing it and a summons in the hands of the
sheriff. Ark. Stat. Ann. § 27-301 (Repl. 1962);
Green v. Wiggins, 304 Ark. 484, 803 S.W.2d 536
(1991). Section 27-301 was subsequently changed by an earlier
version of Rule 3, which contained a sentence providing that
an action would not be deemed commenced unless service was
actually obtained within 60 days of filing the complaint.
Green, 304 Ark. 484, 803 S.W.2d 536. That sentence
was deleted, leaving the present Rule 3. At the same time the
deletion was made in Rule 3, the time requirement for service
was moved to Rule 4(i). Id. The Reporter's Notes
on these changes are helpful in interpreting and
understanding Rule 3:
This Rule changes Arkansas law. The statute, Ark. Stat.
Ann. § 27-301 (Repl. 1962), which is superseded by
this rule provided, in part, that an action was commenced by
filing a complaint and placing it and a summons in the hands
of the sheriff of the proper County. Under this Rule, an
action will commence without regard to receipt by the process
server, subject only to the requirement that service be
complete within 60 days from the filing of the complaint,
unless the time for service has been extended by the court. .
. . This rule will do away with uncertainty in "race to
venue" and statute of limitation cases as to where or
when the action was first commenced. It will also do away
with the need to decide whether the Complaint ...