FROM THE POPE COUNTY CIRCUIT COURT [NO. 58CV-15-458]
HONORABLE DENNIS CHARLES SUTTERFIELD, JUDGE
Law Firm, P.L.L.C., by: Scott A. Scholl, for appellant.
Law Firm, by: William F. Smith, for appellee.
M. GLOVER, JUDGE
case began when Elizabeth Burnham filed a petition to enjoin
Randy Price from interfering with her easement over a portion
of Price's property. The issues on appeal, however, have
nothing to do with the easement. Instead, Burnham's
appeal 1) challenges the trial court's dismissal of the
case for lack of subject-matter jurisdiction and 2) contends
the dismissal of Price's counterclaim for want of
prosecution did not act as an adjudication on the merits. We
October 30, 2015, Burnham filed the petition to enjoin Price,
and he answered and counterclaimed on December 2, 2015. The
case was set for trial on May 16, 2016, but Burnham filed a
motion to continue, which was granted. The trial was
rescheduled for July 11, 2016. On June 15, 2016, Burnham
filed her "reply to answer," motion to strike, and
answer to counterclaim.
11, 2016, Burnham orally moved for nonsuit, and the motion
was granted by the trial court. On March 3, 2017, Price's
counterclaim was dismissed for want of prosecution. On March
31, 2017, Burnham presented to the court clerk a second (pro
se) petition to enjoin, which was filed under the same case
number as the original. The second petition made additional
allegations and sought both equitable and monetary damages.
On July 22, 2017, Price filed a motion to dismiss, asserting
in essence that Burnham failed to comply with the Arkansas
Rules of Civil Procedure, which required dismissal of her
hearing on the motion to dismiss was held on August 29, 2017.
The trial court questioned its jurisdiction to hear the case.
After colloquy among the court, counsel, and Burnham, the
trial court concluded it lacked jurisdiction to hear the
second petition and dismissed the case with prejudice.
challenging the trial court's dismissal of the case for
lack of subject-matter jurisdiction, Burnham frames the issue
[T]he issue is whether the filing of a new petition under the
previous case number prevents the trial court from exercising
jurisdiction over the new petition. In other words, whether
Ms. Burnham's second petition was a "new
action" for the purpose of the savings statute, Ark.
Code Ann. § 16-56-126, even if the Clerk filed the new
petition under the same docket number.
Code Annotated section 16-56-126 (Repl. 2005) provides in
(a)(1) If any action is commenced within the time
respectively prescribed in this act, in §§
16-116-101 - 16-116-107, in §§ 16-114-201 -
16-114-209, or in any other act, and the plaintiff therein
suffers a nonsuit, or after a verdict for him or her the
judgment is arrested, or after judgment for him or her the
judgment is reversed on appeal or writ of error, the
plaintiff may commence a new action within one (1)
year after the nonsuit suffered or judgment arrested or
(Emphasis added.) In making her argument, Burnham relies upon
Tucker v. Sullivant, 2010 Ark. 170, 370 S.W.3d 812.
In Sullivant, the appellants filed an amended
complaint under the same docket number as their previously
nonsuited complaint, and timely service was completed.
Id. The trial court dismissed the action for failure
to comply with the savings statute because the amended
complaint was filed under the same docket number as the
original complaint that had been voluntarily nonsuited. The
Tuckers appealed the dismissal to our supreme court. The
supreme court stated the issue as "whether
Appellants' filing of a complaint under the same docket
number, as a previously nonsuited case, constituted the
commencement of a new action for purposes of the savings
statute." Id. at 3, 370 S.W.3d at 814
(citations omitted). The supreme court concluded that it did
and reversed and remanded the trial court's dismissal.
The supreme court reasoned:
Here, Appellants filed a complaint within the one-year period
prescribed in the savings statute. Moreover, they timely
completed service of that complaint as required by Ark. R.
Civ. P. 4 (2009). This court has recognized that an action is
commenced by filing a complaint with the clerk of the proper
court. However, effectiveness of the commencement date is
dependent upon meeting the requirements of service as set
forth in Rule 4(i). Appellants satisfied both those
requirements. If we were to accept Appellee's argument
that the timely filing of Appellants' "amended"
complaint did not satisfy the commencement requirement of the
savings statute, we would be exalting form over substance and
violating the stated purpose of the savings statute. Neither
the fact that the case was filed under the previous docket
number, nor the fact that Appellants paid a reopening fee, as
opposed to a new filing fee, prejudice Appellee. ...