Orr v. Hudson

• Decision Date: 09 December 2010
• Docket Number: No. 09–1406.,09–1406.
• Citation: 374 S.W.3d 686,2010 Ark. 484
• Parties: Tasha ORR, Individually and as Court–Appointed Personal Representative of the Estate of Melvin Woodson, Jr., Deceased, Appellant v. Stephen HUDSON, M.D., and Timothy Calicott, M.D., Appellees.
• Court: Arkansas Supreme Court

2010 Ark. 484

374 S.W.3d 686

Tasha ORR, Individually and as Court–Appointed Personal Representative of the Estate of Melvin Woodson, Jr., Deceased, Appellant

v.Stephen HUDSON, M.D., and Timothy Calicott, M.D., Appellees.

No. 09–1406.

Supreme Court of Arkansas.

Dec. 9, 2010.

Parker Law Firm, LTD., Eureka Springs, by: Tim S. Parker, for appellant.

Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., Little Rock, by: Ken Cook, Michelle H. Cauley, and Delena C. Hurst, for appellees.

PAUL E. DANIELSON, Justice.

Appellant Tasha Orr, individually and as court-appointed personal representative of the Estate of Melvin Woodson, Jr., deceased, appeals the circuit court's order dismissing her complaint against appellees Stephen Hudson, M.D., and Timothy Calicott, M.D. (hereinafter “the doctors”), with prejudice. Our court of appeals previously affirmed in part and reversed and remanded in part. See Orr v. Calicott, 2009 Ark. App. 857, 372 S.W.3d 843. However, the doctors petitioned this court for review, and we granted it. When we grant a petition for review, we consider the appeal as though it had originally been filed in this court. See Butcher v. Beatty, 2010 Ark. 130, 2010 WL 987048. Orr asserts four points on appeal: (1) that the circuit court erred in denying her motion to strike the doctors' motion to dismiss and amended motion to dismiss; (2) that the circuit court erred in dismissing her lawsuit against the doctors; (3) that the circuit court erred in denying her motion for sanctions under Arkansas Rule of Civil Procedure 11; and (4) that the circuit court erred in denying her motion for default judgment. We affirm the circuit court's order and vacate the opinion of the court of appeals.

In Orr v. Calicott, CA 05–594, 2006 WL 1165844 (Ark.App. May 3, 2006) (unpublished) ( Orr I), the court of appeals affirmed the circuit court's dismissal of Orr's complaint for medical negligence and wrongful death, relating to the death of her infant son. The Lee County Circuit Court had, on the doctors' motion, dismissed the complaint for lack of venue, and the court of appeals affirmed, holding that venue was appropriate only in Faulkner County. Orr subsequently filed a complaint for medical negligence and wrongful death in Faulkner County Circuit Court, and the doctors moved to dismiss. In their motion, they asserted, pursuant to this court's decision in Servewell Plumbing, LLC v. Summit Contractors, Inc., 362 Ark. 598, 210 S.W.3d 101 (2005), that Orr waived her right to file her complaint when she chose to appeal the Lee County Circuit Court's dismissal, rather than plead further.¹

Orr responded, and the circuit court held a hearing on the motion, as well as on motions filed by Orr to strike the doctors' motion to dismiss, for default judgment, and for Rule 11 sanctions. The circuit court took the matter under advisement and later issued a letter opinion, in which it granted the doctors' motion to dismiss and denied Orr's motion for default judgment. It then entered its order of dismissal, in which it found: ²

1. Plaintiff's cause of action was dismissed for lack of proper venue in Lee County. The Plaintiff appealed that dismissal which the Arkansas Court of Appeals affirmed. Plaintiff then refiled her same cause of action in Faulkner County Circuit Court in this case within one year of the issuance of the mandate from the Court of Appeals.

2. The Defendants' Motion to Dismiss is hereby granted. Arkansas law indicates that when a Plaintiff elects to appeal rather than to plead further when both options are available the option to plead further is waived. See Servewell Plumbing LLC v. Summit Contractors Inc., 362 Ark. 598, 210 S.W.3d 101 (2005); Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290 (2001). On this issue the court finds misplaced the Plaintiff's reliance upon the case of West v. G.D. Searle & Co., 317 Ark. 525, 879 S.W.2d 412 (1994) and the writings of Newbern, David, Arkansas Civil Practice and Procedure (3d ed.2003) § 22–5 which state that when there is an appeal of a dismissal without prejudice which is affirmed a new claim may be filed with one year of the appellate court mandate. The Court also finds misplaced the Plaintiff's reliance upon the Doctrine of Law of the Case and the other arguments cited in her brief and at the hearing.

3. Plaintiff has waived her right to plead further in this case. Accordingly, Defendants' Motion to Dismiss is hereby granted. Plaintiff's Complaint in this case is hereby dismissed with prejudice.

4. Plaintiff's Motion for Default Judgment is hereby denied.

5. Plaintiff's Motion for Rule 11 Sanctions is hereby denied.

6. Plaintiff's Motion to Strike Defendants' Motion to Dismiss and Amended Motion to Dismiss is hereby denied.

Orr now appeals.

I. Motion to Strike

For her first point on appeal, Orr argues that the circuit court erred in denying her motion to strike where the doctors raised the defense of “waiver” in their motions to dismiss, rather than in an answer. In reviewing the denial of a motion to strike, this court has used an abuse-of-discretion standard of review. See Rodgers v. McRaven's Cherry Pickers, Inc., 302 Ark. 140, 788 S.W.2d 227 (1990). Here, our review of the record reveals that Orr filed her responses to the doctors' motion to dismiss and amended motion to dismiss well before filing her motion to strike, which raises issues of timeliness and waiver. Cf.Ark. R. Civ. P. 12(f). Accordingly, we cannot say that the circuit court abused its discretion in denying Orr's motion to strike.

II. Motion to Dismiss

Next, Orr argues that the circuit court erred in dismissing her complaint, asserting that because the court of appeals affirmed the Lee County Circuit Court's dismissal without modification in Orr I, the Faulkner County Circuit Court was without the power to change or modify that decision by deeming the prior dismissal with prejudice. Along the same lines, Orr contends that because her initial suit was dismissed without prejudice, and the court of appeals affirmed that decision without modification in Orr I, she had the right to refile in Faulkner County. She maintains that this court's decision in Servewell, supra, is inapplicable to her case because the court of appeals did not affirm with prejudice in Orr I as in Servewell. For these reasons, she claims that the circuit court erred in dismissing her complaint.

The doctors respond that when Orr chose to appeal the Lee County dismissal and the court of appeals affirmed, the dismissal was automatically converted into a dismissal with prejudice barring the claim forever, pursuant to Servewell. Alternatively, they aver that even if the dismissal of Orr's Lee County complaint was without prejudice, and thus subject to the savings statute, Orr failed to commence a new action within one year after the prior dismissal.

In order to determine whether the circuit court erred in dismissing Orr's complaint, we must, as an initial matter, determine the effect of the court of appeals' affirmance in Orr I. In Servewell, this court, in clear and unmistakable terms, held that because Servewell appealed the circuit court's grant of a motion to dismiss on venue grounds rather than plead further and this court affirmed, the affirmance would not be “without prejudice.” 362 Ark. at 613, 210 S.W.3d at 113. In doing so, the court observed:

Arkansas law is well settled that, when a plaintiff elects to appeal rather than plead further where both options are available, then the option to plead further is waived in the event of affirmance by the appellate court. See, e.g., Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290 (2001) (should a plaintiff elect to appeal rather than plead further the option to plead further is waived in the event of affirmance by the appellate court); Hunt v. Riley, 322 Ark. 453, 909 S.W.2d 329 (1995). Here, Servewell could have taken a voluntary nonsuit prior to the trial court's dismissal of its complaint and filed the matter in Florida in accordance with the forum-selection clause. Because it elected to appeal rather than to plead the case properly in Florida, there is no basis for granting its request to make our affirmance “without prejudice.”

Id. at 613, 210 S.W.3d at 112–13.

While Orr attempts to distinguish her case from other cases in which we have recognized this doctrine, her attempts fail. It is true that in the vast majority of cases in which we have so recognized, the prior dismissal was based upon Ark. R. Civ. P. 12(b)(6). See, e.g., Born v. Hosto & Buchan, PLLC, 2010 Ark. 292, 372 S.W.3d 324;Sluder v. Steak & Ale of Little Rock, Inc., 368 Ark. 293, 245 S.W.3d 115 (2006); Arkansas Dep't of Envtl. Quality v. Brighton Corp., 352 Ark. 396, 102 S.W.3d 458 (2003). However, the Servewell matter was clearly one involving venue and was one in which we held the “appeal or plead further” doctrine applicable. As such, it not only has been, but remains, the law on this matter.³

Here, Orr filed a lawsuit, which was dismissed without prejudice for lack of venue. Accordingly, pursuant to Servewell, she had the election to either plead further or to appeal that decision. See also Hollingsworth v. First Nat'l Bank & Trust Co., 311 Ark. 637, 846 S.W.2d 176 (1993). Orr chose to appeal rather than to plead further, and the court of appeals affirmed the dismissal in Orr I; because that court affirmed, the dismissal was rendered with prejudice. See, e.g., Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290 (2001).

Orr disputes this conclusion, stating that the court of appeals' opinion merely affirmed the circuit court's dismissal and did not modify the dismissal to one with prejudice. However, we have previously rejected a similar argument. In Sluder, supra, we observed that when the Sluders chose to appeal the original dismissal of their complaint and this court affirmed that dismissal, it became a dismissal with prejudice; it was “irrelevant that the majority opinion did not specify as such.” 368 Ark. at 299, ...