Bennett v. Spaight

• Decision Date: 21 February 2008
• Docket Number: No. 07-231.,07-231.
• Citation: Bennett v. Spaight, 372 Ark. 446, 277 S.W.3d 182 (Ark. 2008)
• Parties: Colleen Taylor BENNETT, Appellant, v. Dorothy SPAIGHT and Cedrick Spaight, Appellees.
• Court: Arkansas Supreme Court

277 S.W.3d 182

372 Ark. 446

Colleen Taylor BENNETT, Appellant, v.Dorothy SPAIGHT and Cedrick Spaight, Appellees.

No. 07-231.

Supreme Court of Arkansas.

February 21, 2008.

David A. Hodges, Little Rock, for appellant.

Watts, Donovan & Tilley, P.A., by: Jim Tilley and Staci Dumas Carson, Little Rock, for appellee son.

PAUL DANIELSON, Justice.

AppellantColleen Bennett appeals from the circuit court's order dismissing her complaint, with prejudice, against appelleeCedric Spaight.¹Her sole point on appeal is that the circuit court erred in dismissing her complaint.We affirm.

On January 24, 2003, Cedric Spaight, driving the car of his mother, Dorothy Spaight, ran into the back of Ms. Bennett's car.On January 3, 2006, Ms. Bennett filed a complaint solely against Dorothy.The complaint alleged that on the day of the accident, "[t]he posted speed was 60 miles an hour, and traffic was stopped when the Plaintiff was rear-ended by the Defendant."The complaint asserted that the accident was caused by Dorothy's negligence and asserted that Ms. Bennett had sustained injuries and damages.It further stated:

11.This is a subrogation claim on behalf of Farm Bureau Insurance Company for payments made under the no-fault provision of the policy in the total amount of $4,925.50.This is not intended to be a claim on behalf of the personal injury, if any, of the insured, Colleen Taylor Bennett, under the circumstances, as Farm Bureau is advising the insured that she must get her own individual lawyer to assert a claim for the personal injury, if any, in view of the fact that the statute of limitations will run in this case on January 24, 2006.

The complaint also demanded a jury trial.

On February 13, 2006, an affidavit of service was filed, which stated that Dorothy had been served with the summons and complaint in the action by delivery of copies to her adult son, Derrick Spaight, at their residence.On February 15, 2006, Dorothy filed a motion to dismiss, denying that Ms. Bennett was the proper partyplaintiff, due to the language contained in certain paragraphs of her complaint.She admitted that a vehicle accident occurred on January 24, 2003, but denied the remaining allegations made by Ms. Bennett's complaint.She further asserted insufficiency of process and service of process and affirmatively pled all defenses available to her.

On February 22, 2006, Ms. Bennett responded to the motion to dismiss, asserting that Dorothy had been served on February 6, 2006, and denying that the motion should be granted.She averred that the affidavit of service reflected actual service on Dorothy and requested a hearing on the issues of insufficiency of process and insufficiency of service of process.

On April 12, 2006, Dorothy filed her answer, again admitting that an accident occurred on the date alleged by Ms. Bennett, but denying the remaining allegations in the complaint.On June 23, 2006, Dorothy filed a motion for summary judgment.In it, she asserted that she was not involved in an accident on the date in question, and "[i]nstead, the driver of the vehicle involved in the collision with Plaintiff was Cedric Spaight."She urged that Ms. Bennett had named the wrong defendant and that Ms. Bennett could not sustain her claim.She further asserted that more than three years had passed since the date of the accident and that the 120-day period for service had also elapsed.Consequently, she claimed, an action against Cedric was time barred and "any amendment could not relate back to the original Complaint under the terms of Rule 15 of Ark. R. Civ. P."On July 13, 2006, Ms. Bennett responded, denying that the summary-judgment motion should be granted and requesting a hearing on the motion.

The same day, Ms. Bennett filed an amended and substituted complaint, in which she named both Dorothy and Cedric as defendants.²She alleged that she was "rear-ended by the Defendant."She further alleged, alternatively:

9.As an alternative, it is alleged at the time of the accident that the driver of the vehicle was Cedrick Spaight and therefore, he was acting as an agent, servant and employee of the Defendant, Dorothy Spaight, so as to impute the liability of Cedric [sic] Spaight to Dorothy Spaight.

She then claimed that the accident was caused by the negligence of Cedric and demanded a jury trial.

The next day, Dorothy filed an answer to the amended and substituted complaint.In it, she stated that the complaint should be dismissed against her pursuant to Ark. R. Civ. P. 12(b)(6), in that Ms. Bennett had failed to state or allege any facts upon which relief could be granted.With respect to Ms. Bennett's cause of action against Cedric, the answer contended that the same was barred by the statute of limitations and was further barred by Ark. R. Civ. P. 12(b)(4) and (5).It further pled, again, that Ms. Bennett was not the proper party in interest.

On July 26, 2006, the circuit court entered an order denying Dorothy's motion for summary judgment.The order found that under Ark. R. Civ. P. 56, the circuit court could review the pleadings, depositions, answers to interrogatories, and admissions on file, as well as affidavits, but that none of those materials accompanied Dorothy's motion.That same day, the circuit court entered an order denying Dorothy's motion to dismiss, noting that the pleadings alone were insufficient to make the determination.

On August 17, 2006, Ms. Bennett filed a second amended and substituted complaint.³On October 6, 2006, the circuit court filed a letter opinion in which it directed Dorothy's counsel to "restate your Motion for Summary Judgment and include what you will as per Rule 56."It further stated its belief that a hearing was not necessary.

In accord with the circuit court's letter opinion, Dorothy filed a renewed motion for summary judgment.The motion asserted that Ms. Bennett had admitted that the statute of limitations ran on January 24, 2006.It alleged that Ms. Bennett's claim against Cedric was time barred and that Cedric was not named as a defendant until on or about July 12, 2006, which was well after the statute of limitations had run.It further asserted that there were no facts supporting agency between Cedric and Dorothy.Attached to the motion were an affidavit by Cedric and the deposition testimony of Dorothy, as well as a brief in support.

On November 13, 2006, Ms. Bennett filed a motion for extension of time to serve Cedric.In it, Ms. Bennett claimed that she had not yet been able to serve Cedric as she had only recently obtained a proper address for him.She further asserted that she had made substantial attempts to serve him, but that he could not be located or served.The same day as the motion, the circuit court entered its order granting Ms. Bennett an extension of time to serve Cedric.On November 15, 2006, Ms. Bennett moved to dismiss without prejudice her claim against Dorothy, which the circuit court granted on November 16.

On December 7, 2006, Cedric filed a motion for judgment on the pleadings.In it, he stated that he was served on November 9, 2006, but that Ms. Bennett's claim against him was not timely filed within three years of the date of the accident.For that reason, he asserted, her claim against him was time barred, and he requested that Ms. Bennett's action against him be dismissed with prejudice.Ms. Bennett responded, asserting that her service on Dorothy was made to Derrick Spaight at the family's residence, which "gave notice to Derrick or Cedric Spaight that this was a Complaint that was filed."In addition, she made the following claims:

15.Essentially, the Complaint was originally filed against Dorothy Spaight, who was the owner of the vehicle, but was not the driver, and because of a mistake in identity, it was later amended to reflect that Cedric Spaight was the driver of the vehicle.Therefore, all of the pleadings against Cedric Spaight are timely under the circumstances.

16.However, if in the event the Court determines that the statute of limitations would run as to Cedric Spaight, then, pursuant to Rule 15, the pleadings referred back to the original Complaint, which was filed well within the statute of limitations, as reflected by the case of Bell v. Jefferson Hospital Association, Inc.,[96 Ark.App. 283, 241 S.W.3d 276(2006),] decided by the Court of Appeals, on October 11, 2006.

17.The insurance company for Dorothy Spaight is the same insurance company for Cedric Spaight.Therefore, the insurance company for the Defendant had notice that the wrong driver was listed.In fact, a Motion to Dismiss, alleging essentially that the case ought to be dismissed against Dorothy Spaight, was filed in this case, and therefore, since the insurance company for both of [sic]Dorothy Spaight and Cedric Spaight were aware that they had the wrong driver, Rule 15 should permit the Amended Complaint as to Cedric Spaight to relate back to the original Complaint filed herein.

Cedric replied, asserting that Ms. Bennett amended her complaint to add Cedric after the statute of limitations had expired and more than 120 days after filing her original complaint on January 3, 2006.Because of this, he urged, Ark. R. Civ. P. 15(c) was of no avail to Ms. Bennett under the circumstances, and the Bell decision was inapplicable.On January 23, 2007, Cedric filed his responses to requests for admission, and on January 24, 2007, the circuit court entered its order dismissing Ms. Bennett's complaint against Cedric, finding:

Plaintiff failed to Amend her Complaint within the 120 days required for service by Arkansas Rules of Civil Procedure 4(i).Further Plaintiff's Amended Complaint falls outside the scope of Bell v. Jefferson Hospital.

Plaintiff, Colleen Taylor Bennett's, [sic] cause of action is dismissed with prejudice against Defendant, Cedric Spaight.

Ms. Bennett now appeals.

Ms. Bennett, urging the standard of review for summary judgment, argues that...