Jonesboro Healthcare Ctr., LLC v. Eaton–Moery Envtl. Servs., Inc., 11–294.

• Decision Date: 01 December 2011
• Docket Number: No. 11–294.,11–294.
• Citation: 385 S.W.3d 797,2011 Ark. 501
• Parties: JONESBORO HEALTHCARE CENTER, LLC, Appellant v. EATON–MOERY ENVIRONMENTAL SERVICES, INC., d/b/a Delta Environmental, Appellee.
• Court: Arkansas Supreme Court

2011 Ark. 501

385 S.W.3d 797

JONESBORO HEALTHCARE CENTER, LLC, Appellant

v.EATON–MOERY ENVIRONMENTAL SERVICES, INC., d/b/a Delta Environmental, Appellee.

No. 11–294.

Supreme Court of Arkansas.

Dec. 1, 2011.

Mark David Wankum, Little Rock, for appellant.

Dennis Murray Zolper and Keith L. Chrestman, Jonesboro, for appellee.

DONALD L. CORBIN, Justice.

Appellant, Jonesboro Healthcare Center, LLC(Jonesboro Healthcare), appeals the order of the Craighead County Circuit Court dismissing without prejudice the complaint of Appellee, Eaton–Moery Environmental Services, Inc., d/b/a Delta Environmental (Delta Environmental), for failure to obtain service.This case was certified to this court by the court of appeals as one involving an issue of first impression needing clarification of the law and requiring interpretation of a court rule, namely Ark. R. Civ. P. 41(2011).Jurisdiction is properly in this court pursuant to Ark. Sup.Ct. R. 1–2(b)(1), (b)(5), and (b)(6)(2011).We find no error in the circuit court's order and affirm.

Delta Environmental initially filed this contract suit in the Craighead County District Court on August 6, 2010.The complaint alleged damages of $26,460.38 (excluding interest, costs, and attorney's fees) for the early termination of a five-year contract for services.It was mistakenly filed in district court, as the complaint was captioned “IN THE CIRCUIT COURT OF CRAIGHEAD COUNTY” and alleged damages in excess of the district court's jurisdiction.¹

Seven days later on August 13, 2010, and before Jonesboro Healthcare had filed an answer, the district court entered an order dismissing the case without prejudicedue to a lack of subject-matter jurisdiction.The order stated that counsel for Delta Environmental had informed the district court that it had filed this case in the wrong court and that the district court did not have subject-matter jurisdiction.The order also stated that Delta Environmental requested that the dismissal be without prejudice.

On the same day the dismissal was entered in district court, Appellee filed the identical complaint in circuit court.Appellant Jonesboro Healthcare answered the complaint on August 24, 2010, and then on December 15, 2010, moved to dismiss the complaint with prejudice based on a fatally flawed summons that did not meet the requirements of Ark. R. Civ. P. 4(b)(2011).Jonesboro Healthcare argued in the motion that this would be the second dismissal in the case following a first dismissal that was a voluntary nonsuit and therefore should be a dismissal with prejudice pursuant to Ark. R. Civ. P. 41(b).

The circuit court entered its order on February 10, 2011, granting Jonesboro Healthcare's motion to dismiss.The circuit court concluded that the summons was fatally defective and not timely served, but that the previous dismissal in the district court did not trigger the two-dismissal rule in Rule 41(b) because the district court lacked subject-matter jurisdiction.Accordingly, the circuit court entered the current dismissal without prejudice.The circuit court then entered an amended order with an Ark. R. Civ. P. 54(b) certification, and Jonesboro Healthcare filed a timely notice of appeal from both the order and the amended order.The sole point advanced by Jonesboro Healthcare for reversal of the order is that the circuit court erred in dismissing the suit without prejudice under Rule 41(b).

Generally speaking, a Rule 41(b) dismissal is reviewed under the abuse-of-discretion standard.See, e.g., Wolford v. St. Paul Fire & Marine Ins. Co.,331 Ark. 426, 961 S.W.2d 743(1998).However, when this court must construe a court rule, our appellate review is de novo.See, e.g., Kesai v. Almand,2011 Ark. 207, 382 S.W.3d 669.When we construe a court rule, we use the same means and canons of construction that we use to interpret statutes.Id.In considering the meaning and effect of a statute or rule, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language.Id.The basic rule of statutory construction to which all other interpretive guides defer is to give effect to the intent of the drafting body.SeeVanderpool v. Fid. & Cas. Ins. Co.,327 Ark. 407, 939 S.W.2d 280(1997).As a guide in ascertaining the drafter's intent, this court often examines the history of the statute or rule involved, as well as the contemporaneous conditions at the time of their enactment, the consequences of interpretation, and all other matters of common knowledge within the court's jurisdiction.Seeid.

For its sole point on appeal, Jonesboro Healthcare challenges the ruling that the dismissal of Delta Environmental's complaint was without prejudice.Jonesboro Healthcare asserts that under Rule 41(b), the dismissal for failure to obtain proper service should have been with prejudice because Delta Environmental had “previously taken a voluntary non-suit of an identical suit pending in district court.”

Delta Environmental responds that the circuit court was correct in its conclusion that a dismissal for want of subject-matter jurisdiction does not trigger the two-dismissal component of Rule 41(b) because that component of Rule 41(b) operates to conclude a case with an adjudication on the merits, and a court that wants for subject-matter jurisdiction is powerless to adjudicatea case on its merits.Thus, Delta Environmental contends that only a dismissal from a court that possesses jurisdiction should trigger the two-dismissal rule of Rule 41(b).In support of this response, Delta Environmental cites the following: “[a] dismissal for [improper venue or] lack of subject matter jurisdiction does not constitute the kind of involuntary dismissal contemplated by Rule 41(b) and thus will be without prejudice, even if it is the second dismissal.”2 David Newbern, John J. Watkins & D.P. Marshall, Jr., Arkansas Civil Practice and Procedure§ 27:5 (5th ed.2010).

To resolve the question here presented, we must apply and interpret Rule 41, which provides in pertinent part as follows:

Rule 41.Dismissal of actions.

(a) Voluntary Dismissal; Effect Thereof.

(1) Subject to the provisions of Rule 23(e)andRule 66, an action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court.Although such a dismissal is a matter of right, it is effective only upon entry of a court order dismissing the action.

(2) A voluntary dismissal under paragraph (1) operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based upon or including the same claim, unless all parties agree by written stipulation that such dismissal is without prejudice.

(3) In any case where a set-off or counterclaim has been previously presented, the defendant shall have the right of proceeding on his claim although the plaintiff may have dismissed his action.

(b)Involuntary Dismissal.In any case in which there has been a failure of the plaintiff to comply with these rules or any order of court or in which there has been no action shown on the record for the past 12 months, the court shall cause notice to be mailed to the attorneys of record, and to any party not represented by an attorney, that the case will be dismissed for want of prosecution unless on a stated day application is made, upon a showing of good cause, to continue the case on the court' docket.A dismissal under this subdivision is without prejudice to a future action by the plaintiff unless the action has been previously dismissed, whether voluntarily or involuntarily, in which event such dismissal operates as an adjudication on the merits.

Ark. R. Civ. P. 41.

Noticeably absent from this rule is any mention of a dismissal due to lack of subject-matter jurisdiction.Accordingly, we begin our application and interpretation of Rule 41 to the facts of this case with the observation that, according to Bakker v. Ralston,326 Ark. 575, 932 S.W.2d 325(1996), a failure to properly obtain service is a failure to comply with Rule 4 and consequently a failure “to comply with these rules” as provided in Rule 41(b).Thus, pursuant to Bakker, Delta Environmental's failure to comply with Rule 4 operates as an involuntary dismissal for purposes of Rule 41(b).

That conclusion brings us to the two-dismissal component of Rule 41(b), and there we see that “[a] dismissal under this subdivision is without prejudice to a future action by the plaintiffunless the action has been previously dismissed, whether voluntarily or involuntarily, in which event such dismissal operates as an adjudication on the merits.”(Emphasis added.)As previously noted, the circuit court ruled that the prior dismissal in district court did not trigger the two-dismissal rule because the district court lacked subject-matter jurisdiction.Jonesboro Healthcare contends this was error because the prior dismissal in district court was a “voluntary non-suit.”Jonesboro Healthcare, however, cites absolutely no authority for the premise of its argument that a dismissal for lack of subject-matter jurisdiction is the equivalent of a voluntary nonsuit.

The prior dismissal in district court was due to a lack of subject-matter jurisdiction and was not a voluntary nonsuit in the traditional sense that a plaintiff voluntarily chooses to exercise his unilateral and absolute right to dismiss his complaint pursuant to Rule 41(a) for matters that were in his control or matters of his choice, such as needing more time to investigate facts, to locate and interview witnesses, or to obtain service on parties or witnesses.Unlike locating witnesses and the like, subject-matter jurisdiction is not something within a plaintiff's control, nor is it a matter within a plaintiff's choice.Subject-matter jurisdiction is the power of the court to hear and determine...