Davis v. Kelley

          APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35CV-17-751-5] HONORABLE JODI RAINES DENNIS, JUDGE

          Willie Gaster Davis, Jr., pro se appellant.

          Leslie Rutledge, Att'y Gen., by: Maryna Jackson, Ass't Att'y Gen., for appellee.

          RHONDA K. WOOD, ASSOCIATE JUSTICE

         Appellant Willie G. Davis, Jr., appeals the Jefferson County Circuit Court's order granting the Appellees'^[1] motion to dismiss with prejudice and designation of the dismissal as a strike under Ark. Code Ann. § 16-68-607 (Supp. 2017). Because Davis failed to perfect service on Appellees, we affirm the circuit court's dismissal, but modify it as a dismissal without prejudice. We reverse the circuit court's designation of the dismissal as a strike because the circuit court lacked jurisdiction to consider the merits.

          I. Background

         Willie G. Davis, Jr., is serving a life sentence in the Arkansas Department of Correction for various convictions, including first-degree murder. In 2010, Davis filed a freedom of information request seeking crime-lab files related to his conviction. Since that initial request, Davis initiated a number of legal actions attempting to obtain the requested documentation. On October 4, 2017, Davis filed a pro se petition for writ of mandamus and complaint for conversion that is the subject of this appeal. He sought a writ to compel Appellees to release the contents of his crime-lab file and monetary damages for conversion of the file.

         On December 8, 2017, Appellees filed a motion to dismiss arguing, among other things, that Davis failed to perfect service according to Rule 4 of the Arkansas Rules of Civil Procedure. Davis did not timely respond to the motion to dismiss, but rather filed a motion to extend time for service. The circuit court declined to extend service and granted Appellees' motion to dismiss "with prejudice." In addition, the circuit court designated the dismissal as a "strike." See Ark. Code Ann. § 16-68-607. After the circuit court filed its order granting the motion to dismiss, Davis filed a response to Appellees' motion. This appeal followed.

         II. Standard of Review

         We review a circuit court's decision to grant a motion to dismiss for an abuse of discretion. Dockery v. Morgan, 2011 Ark. 94, at 6, 380 S.W.3d 377, 382. Under this standard, the facts alleged in the complaint are taken as true and are viewed in the light most favorable to the complainant. Id. For the circuit court to have abused its discretion it must have acted improvidently, thoughtlessly, or without due consideration. GSS, LLC v. CenterPoint Energy Gas Transmission Co., 2014 Ark. 144, at 8, 432 S.W.3d 583, 588.

         III. Analysis

         Arkansas law has long held that valid service of process is necessary to give a court jurisdiction over a defendant. Jones v. Turner, 2009 Ark. 545, at 3, 354 S.W.3d 57, 59. Indeed, without valid process, the circuit court lacks jurisdiction over a defendant and any judgment rendered thereafter is void ab inito. See, e.g., Taylor v. Zanone Props., 342 Ark. 465, 474, 30 S.W.3d 74, 79 (2000); Sides v. Kirchoff, 316 Ark. 680, 682, 874 S.W.2d 373, 374 (1994).

         A. Insufficient Process

         Appellees' motion to dismiss argued that Davis failed to perfect service. If service of a valid summons and a copy of the complaint is not made within 120 days after filing the complaint, the action shall be dismissed without prejudice. Ark. R. Civ. P. 4(i). The circuit court dismissed the action after the 120 days expired. On appeal, Davis does not ...