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Johnson v. Schumacher Group of Arkansas, Inc.

Court of Appeals of Arkansas, Division I

November 20, 2019



          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. ...

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