APPEAL
FROM THE POPE COUNTY CIRCUIT COURT [NO. 58CV-16-538]
HONORABLE DENNIS CHARLES SUTTERFIELD, JUDGE
Sutter
& Gillham, P.L.L.C., by: Luther Oneal Sutter; and Baker
& Schulze, by: J.G. "Gerry" Schulze, for
appellant.
Wright, Lindsey & Jennings LLP, by: Regina A. Young and
Gary D. Marts, Jr., for separate appellees Schumacher Group
of Arkansas, Inc., and Pope Emergency Group, LLC.
Munson, Rowlett, Moore & Boone, P.A., by: Beverly A.
Rowlett, Tim Boone, and Sarah E. Greenwood, for separate
appellee Russellville Holdings, LLC, d/b/a St. Mary's
Regional Medical Center.
Abramson and Klappenbach, JJ., agree.
ROBERT
J. GLADWIN, Judge.
The
appellant, Dr. Carroll "Don" Johnson, filed a
complaint in the Pope County Circuit Court alleging that
appellee Pope Emergency Group (Pope) and its parent company,
Schumacher Group of Arkansas (Schumacher), were liable for
breach of contract and wrongful termination. Dr. Johnson also
sued Russellville Holdings, LLC, which owns and does business
as St. Mary's Regional Medical Center (St. Mary's),
for tortious interference with the professional-services
contract that Dr. Johnson executed with Pope. Pope also filed
a counterclaim for breach of contract alleging that Dr.
Johnson failed to return a $30, 000 signing bonus as required
by the terms of the agreement.
Dr.
Johnson nonsuited all his claims after each of the appellees
filed motions for summary judgment. Pope elected to continue
with its breach-of-contract claim, and in a companion case
that we also decide today, see Johnson v. Pope Emergency
Group, 2019 Ark.App. 544, __ S.W.3d___, we affirm the
circuit court's order granting summary judgment to Pope.
Dr.
Johnson refiled his claims against Pope, Schumacher, and St.
Mary's in a separate case, Pope County Circuit Court case
No. 58CV-16-538. The circuit court dismissed those claims
with prejudice, however, after ruling that the summonses that
Dr. Johnson issued with his refiled complaint were fatally
defective. Dr. Johnson now challenges that order in this
appeal. We affirm.
I.
Facts and Procedural History
The
facts underlying Dr. Johnson's breach-of-contract,
wrongful-termination, and tortious-interference claims are
set forth in detail in our opinion in Johnson v. Pope
Emergency Group, supra; consequently, we will
not repeat them here. Rather, we resume the story from the
point at which Dr. Johnson refiled his claims.
Dr.
Johnson refiled his complaint against Pope, Schumacher, and
St. Mary's on November 21, 2016. All the defendants were
served with summonses that provided, in material part, if
each of them "failed to respond within the applicable
time period, judgment by default will be entered
against [them] for the relief demanded in the
complaint." (Emphasis added.) Several months later,
Pope, Schumacher, and St. Mary's filed motions to dismiss
the complaint because the summonses did not strictly comply
with Ark. R. Civ. P. 4(b), which expressly requires summonses
to state that judgments by default may-not
will-be entered in the event defendants fail to
timely respond. They argued that dismissal was mandatory,
moreover, because Dr. Johnson failed to seek an extension or
serve a corrected summons within 120 days after filing the
complaint, as required by Ark. R. Civ. P. 4(i).
While
the motions to dismiss were pending, Pope and Schumacher
filed a motion for protective order pursuant to Ark. R. Civ.
P. 26. The motion alleged that Dr. Johnson had refiled claims
that "he voluntarily dismissed in a previous action
after the parties had completed discovery, including a
deposition of a corporate representative for the
Schumacher-Pope defendants." The motion further alleged
that Dr. Johnson had "served another [Ark. R. Civ. P]
30(b)(6) deposition notice seeking to depose [the corporate
representative] a second time." Therefore, Pope and
Schumacher requested that the court issue a protective order
"quashing [the] repetitive deposition notice" and
"forbidding [Dr. Johnson] from engaging in . . .
duplicative discovery." Pope and Schumacher also
requested that the circuit court "award them their
expenses, including attorney's fees, incurred in relation
to the motion for protective order[.]"
The
circuit court entered an order dismissing Dr. Johnson's
refiled claims on February 28, 2018. The court agreed that
the summonses failed to strictly comply with Rule 4(b). The
circuit court also rejected Dr. Johnson's argument that
Pope and Schumacher waived their defense of insufficient
process by filing a motion for protective order and seeking
attorney's fees, which Dr. Johnson claimed was a request
for affirmative relief that ordinarily waives jurisdictional
defects. The circuit court dismissed the claims with
prejudice, moreover, because Dr. ...