Henyan v. Peek

199 S.W.3d 51, 359 Ark. 486
CourtSupreme Court of Arkansas
DecidedDecember 2, 2004
Docket03-1155
StatusPublished
Cited by16 cases

This text of 199 S.W.3d 51 (Henyan v. Peek) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Henyan v. Peek, 199 S.W.3d 51, 359 Ark. 486 (Ark. 2004).

Opinion

Donald L. Corbin, Justice.

This appeal raises the issue of when good cause must be shown in obtaining an extension of the time for service of process under Ark. R. Civ. P. 4(i). Appellants Louise A. Henyan and Robert A. Henyan filed a medical-malpractice suit against Appellees Richard D. Peek, M.D., and Mark R. Gibbs, M.D., in the Pulaski County Circuit Court. Appellants were granted two extensions of time to complete service of process on both Appellees. Dr. Peek was served prior to the expiration of the second period of extension, but Dr. Gibbs was not served until one day after the period ended. Appellants sought a third extension to serve Dr. Gibbs. However, before the trial court could rule on their motion, Appellees filed motions to set aside the two prior orders on the ground that Appellants had failed to make a showing of good cause to support the extensions. The trial court granted the motions to set aside, denied Appellants’ third extension motion, and dismissed the suit. The court of appeals certified this case to us, as it involves the interpretation and further development of our Rules of Civil Procedure. Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. 1-2(b) (5) and (b)(6). We affirm.

The record in this case reflects the following sequence of events. Appellants filed their complaint on November 5, 2002. The case was assigned to the Third Division of the Pulaski County Circuit Court. Under Rule 4(i), Appellants had 120 days after the filing of the complaint to serve summons on Appellees. This time period expired on March 5, 2003. On March 4, Appellants filed a motion for an extension of the 120-day period. The motion did not provide any reason as to why the extension was necessary. Rather, the motion merely reflected:

1. That Plaintiffs filed this action on November 5, 2002 against both named Defendants.
2. That Plaintiffs have not obtained service against either Defendant at this time and pray that this Court enter an Order granting them an additional sixty (60) days or until May 2, 2003, in which to obtain service on both Defendants.

The motion was granted in an order filed on March 5, giving Appellants until May 2 to serve Appellees. No hearing was held prior to the trial court’s grant of the motion.

On May 1, Appellants filed their second motion for extension of the time to serve Appellees. This motion was identical to the first one, except that Appellants sought only thirty additional days. This second motion was granted in an order filed on May 5, giving Appellants until June 2 to complete service of process. Again, no reason was given as to why additional time was needed, and no hearing was held prior to the grant of the motion.

At some point in the first part of May, the parties were notified that the case was being transferred from the Third Division to the Second Division of the Pulaski County Circuit Court. 1 On May 15, Appellee Dr. Gibbs filed a motion to set aside the two orders of extension entered by the Third Division. In his supporting brief, Dr. Gibbs asserted that the orders were improvidently granted because Appellants had not demonstrated that they had made any effort to serve Appellees within the initial 120-day period, nor had they offered any good cause for granting the motions. On May 28, Appellee Dr. Peek filed a similar motion and joined in the supporting brief filed by Dr. Gibbs.

On May 29, Appellants filed their response to the motions to set aside. In their supporting brief, Appellants asserted that the extensions were necessary because they had not been able to get a file-marked copy of the complaint from the Pulaski County Circuit Clerk, although they had made several requests for one. They asserted further that a file-marked copy of the complaint was necessary to perfect service on Appellees.

The same date that Appellants filed their response, May 29, they achieved service of process on Dr. Peek. However, they were not able to serve Dr. Gibbs prior to the expiration of the second extended period for service on June 2. As such, Appellants filed on June 2 a third motion for extension to serve Dr. Gibbs, asking for an additional ten days. This third motion reflected in pertinent part that Davis Process Service had attempted to serve Dr. Gibbs at his home and his office and was told that Dr. Gibbs would be out of town until June 5. Dr. Gibbs was actually served on June 3.

The trial court held a hearing on the pending motions on June 18. After hearing argument from both sides, the trial court denied Appellants’ third motion for extension and granted Appellees’ motions to set aside the two previous orders of extension. The trial court found that there was nothing in Appellants’ motions demonstrating good cause to justify the extensions. As for the reason later offered by Appellants, that they were not able to get a file-marked copy of the complaint from the circuit clerk, the trial court indicated that it did not amount to good cause. The trial court reasoned that even though Appellants’ counsel was located in Fayetteville, “there’s not a whole lot of distance between here and Fayetteville, and it’s one of those things that we could retrieve fairly easily.” The trial court’s bench rulings were memorialized in an order entered on June 23. This appeal followed.

For reversal, Appellants argue that the trial court erred in setting aside the two orders of extension and dismissing their suit. They contend that the motions for extension were timely filed, prior to the expiration of the periods for service, and that Appellee Dr. Peek was served prior to the expiration of those periods. 2 They contend that although they did not state good cause in their motions for extension, good cause was eventually shown. They also contend that they had the right to rely on the orders of extension, despite the later ruling setting them aside. They do not, however, make any argument regarding the trial court’s denial of their third motion for extension to serve Appellee Dr. Gibbs. Accordingly, their arguments on appeal concern only the propriety of the service of Appellee Dr. Peek.

We begin our analysis by reviewing Rule 4(i), which provides:

Time Limit for Service. If service of the summons is not made upon a defendant within 120 days after the filing of the complaint, the action shall be dismissed as to that defendant without prejudice upon motion or upon the court’s initiative. If a motion to extend is made within 120 days of the filing of the suit, the time for service may be extended by the court upon a showing of good cause. If service is made by mail pursuant to this rule, service shall be deemed to have been made for the purpose of this provision as of the date on which the process was accepted or refused. This paragraph shall not apply to service in a foreign country pursuant to Rule 4(e) or to complaints filed against unknown tortfeasors. [Emphasis added.]

This court has consistently held that service requirements under this rule must be strictly construed and compliance with them must be exact. See Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701,

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Bluebook (online)
199 S.W.3d 51, 359 Ark. 486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henyan-v-peek-ark-2004.