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Dodd v. Highway Hauling Express Corp.

Court of Appeals of Arkansas, Division I

February 20, 2019

MICHAEL DODD AND TIFFANY DODD APPELLANTS
v.
HIGHWAY HAULING EXPRESS CORP.; BELEN TRANSPORT, LLC; BERNARDIN ROJAS-SORIANO; JORGE L. FUENTES; BELEN TRANSPORTATION SERVICE, INC.; BELEN TRANSPORTATION; BELEN TRANSPORTATION, LLC; AND JOHN DOES 1 -5 APPELLEES

          APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23CV-16-1410] HONORABLE CHRIS CARNAHAN, JUDGE

          Elldridge Brooks Partners, by: J.D. Hays, Jr.; and Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellants.

          Wright, Lindsey & Jennings LLP, by: Gregory T. Jones and Kristen S. Moyers, for appellees.

          KENNETH S. HIXSON, JUDGE

         Appellant Michael Dodd appeals from an order of the trial court dismissing his complaint against appellees Highway Hauling Express Corporation et al. The order of dismissal was based on Dodd's failure to serve the appellees with the summons and complaint within 120 days after the filing of the complaint as required by Rule 4(i) of the Arkansas Rules of Civil Procedure. On appeal, Dodd argues that the trial court erred in dismissing his complaint because the parties had agreed to delay service to continue negotiations toward a settlement, and thus that the appellees were foreclosed from raising lack of timely service as a defense. We affirm.

          On December 7, 2013, Michael Dodd and his wife, Tiffany Dodd, were in a vehicle stopped on the right shoulder of Interstate 40 in Faulkner County. Thereafter, the Dodds' vehicle was struck by a tractor trailer driven by Bernardin Rojas-Soriano. On December 2, 2016, just five days before the expiration of the statute of limitations, the Dodds brought a personal-injury complaint against Highway Hauling Express, Mr. Rojas-Soriano, and Belen Transport, among numerous other named and John Doe defendants.[1]

         On December 21, 2017, appellees Highway Hauling Express, Mr. Rojas-Soriano, and Jorge L. Fuentes d/b/a Belen Transport filed a motion to dismiss the complaint. The appellees' motion was based on lack of timely service pursuant to Arkansas Rule of Civil Procedure 4(i), which provides in pertinent part:

(1) If service of the summons and a copy of the complaint is not made upon a defendant within 120 days after the filing of the complaint or within the time period established by an extension granted pursuant to paragraph (2) the action shall be dismissed as to that defendant without prejudice upon motion or upon the court's initiative. If service is by mail or by commercial delivery company pursuant to subdivision (d)(8)(A) & (C) of this rule, service shall be deemed to have been made for purposes of this subdivision (i) on the date that the process was accepted or refused.
(2) The court, upon written motion and a showing of good cause, may extend the time for service if the motion is made within 120 days of the filing of the suit or within the time period established by a previous extension. To be effective, an order granting an extension must be entered within 30 days after the motion to extend is filed, by the end of the 120-day period, or by the end of the period established by the previous extension, whichever date is later.

         Because Michael Dodd's complaint was filed on December 2, 2016, the appellees asserted that Dodd had until April 1, 2017, to perfect service of process under Rule 4(i)(1).[2] The appellees asserted that Dodd had served none of the defendants and that Dodd had not obtained an extension of time to complete service under Rule 4(i)(2). The appellees thus asserted that Dodd's complaint must be dismissed.

         On December 26, 2017, Dodd filed a response to the appellees' motion to dismiss. In his response, Dodd did not deny that he had failed to serve any of the defendants within 120 days of the filing of his complaint. Instead, Dodd alleged that the defendants, particularly Highway Hauling Express, had agreed to waive service defenses in this case, particularly the defense of the timeliness of perfecting service of process. Dodd argued that because the defendants had waived timely service, the motion to dismiss should be denied. In Dodd's accompanying brief, he asserted that after the complaint was filed, Dodd's attorney and the insurance representative for Highway Hauling Express had agreed to waive timely service while they continued to engage in settlement negotiations. Dodd attached an affidavit of his attorney as evidence of the alleged agreement.

         A hearing on the appellees' motion to dismiss was held on April 23, 2018. At the hearing, the appellees disputed Dodd's claim that there had been an agreement to waive service requirements. On April 25, 2018, the trial court entered an order granting the motion to dismiss stating that "the Court finds that the Motion to Dismiss is well taken and that the complaint must be dismissed pursuant to Ark. R. Civ. P. 4(i) and 12(b)(5)[3] for failure to timely serve any of the defendants."[4]

         On appeal from the order dismissing his complaint, Dodd argues that the parties' agreement to delay service to negotiate a settlement foreclosed the appellees from raising a service defense. For this reason, Dodd contends that the trial court's order should be reversed.

         Arkansas law is long settled that service of valid process is necessary to give a court jurisdiction over a defendant. Raymond v. Raymond,343 Ark. 480, 36 S.W.3d 733 (2001). Our case law is equally well settled that statutory service requirements, being in derogation of common-law rights, must be strictly construed and compliance with them must be exact. State v. West,2014 Ark. 174. The same reasoning applies to service requirements imposed by court rules. Id. Our service rules place "an extremely heavy burden on the plaintiff to demonstrate that compliance with those rules has been had." Williams v. Stant USA Corp., 2015 Ark.App. 180, at 3, 458 S.W.3d 755, 758 (emphasis in original). Pursuant to Rule 4(i) of the Arkansas Rules of Civil ...


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