Shotzman v. Berumen

• Decision Date: 15 September 2005
• Docket Number: No. 04-1180.,04-1180.
• Citation: 213 S.W.3d 13
• Parties: Kevin SHOTZMAN and Holly Shotzman, Appellants, v. Mike BERUMEN III, M.D.; Laura Dawkins, R.N.; Glenda Welty, R.N.; Diana Colley, R.N.; Sisters of Mercy Liability Fund; Shandra Hall, R.N.; Sisters of Mercy of the St. Louis Regional Community, Inc.; St. Edward Mercy Medical Center; and Sisters of Mercy Health System, Appellees.
• Court: Arkansas Supreme Court

213 S.W.3d 13

Kevin SHOTZMAN and Holly Shotzman, Appellants, v. Mike BERUMEN III, M.D.; Laura Dawkins, R.N.; Glenda Welty, R.N.; Diana Colley, R.N.; Sisters of Mercy Liability Fund; Shandra Hall, R.N.; Sisters of Mercy of the St. Louis Regional Community, Inc.; St. Edward Mercy Medical Center; and Sisters of Mercy Health System, Appellees.

No. 04-1180.

Supreme Court of Arkansas.

September 15, 2005.

[213 S.W.3d 14]

Haskins & Gregan, by: Jacquelyn C. Gregan, Houston; and Eubanks, Baker & Schulze, Little Rock, for appellants.

Wright, Lindsey & Jennings LLP, by: Edwin L. Lowther, Little Rock, Jr.; and Thompson & Llewellyn, P.A., Fort Smith, for appellees St. Edward Mercy Medical Center, Glenda Welty, R.N. and Diana Colley, R.N.

TOM GLAZE, Justice.

This appeal arises from the dismissal with prejudice of a medical malpractice complaint filed by the appellants, Kevin and Holly Shotzman. On December 4, 2000, the Shotzmans filed a medical negligence complaint against the following defendants: Mike Berumen III, M.D.; Shandra Hall, R.N.; Laura Dawkins, R.N.; Glenda Welty, R.N.; Diana Colley, R.N.; Sisters of Mercy of the St. Louis Regional Community, Inc. d/b/a St. Edwards Mercy Medical Center; St. Edward Mercy Medical Center; and John Does 1, 2, and 3. The Shotzmans subsequently filed a motion for a voluntary non-suit with respect to defendants Laura Dawkins and Glenda Welty; the circuit court granted the Shotzmans' motion on July 31, 2001. Nearly a year later, the Shotzmans later moved to dismiss the entire action without prejudice, and the trial court granted the motion on July 22, 2002.

On April 16, 2003, the Shotzmans refiled their medical malpractice claim, renaming the above-listed defendants and naming, in addition, Sisters of Mercy Health System, St. Louis, Inc. d/b/a St. Edward Mercy Medical Center; and the Sisters of Mercy Liability Fund.

On the same day the complaint was filed, April 16, 2003, the Sebastian County Circuit Clerk issued a number of summonses to be served in the lawsuit. Deputy Sheriff Roy Shermer of the Sebastian County Sheriff's Office delivered a number of those summonses to St. Edward Mercy Medical Center (SEMMC or "St. Edward") at 7301 Rogers Avenue in Fort Smith. When Shermer presented the summonses to Eileen Kradel, Vice President for Compliance and Safety at SEMMC, Kradel accepted service for nurses Welty and Colley, because the two nurses were employed by the hospital. However, Kradel refused to accept a summons on behalf of SEMMC, because the named defendant on the summons was "Sisters of Mercy of the St. Louis Regional Community, Inc. d/b/a St. Edward Mercy Medical Center," on whose behalf Kradel had no authority to accept service; in addition, the return accompanying that particular summons contained a statement that the summons was directed to "Sisters of Mercy of the St. Louis Regional Community, Inc. d/b/a St. Edward Mercy Medical Center." Shermer made the following notation on that return: "Unable to serve. The agent for service was not able to accept service on behalf of the defendant Sisters of Mercy of the St. Louis Regional Community, Inc."

Despite its refusal to accept service, St. Edward filed an answer on May 9, 2003, on behalf of itself and nurses Welty and Colley. In its answer, SEMMC specifically raised the defenses of lack of jurisdiction over the subject matter, lack of jurisdiction over the person, insufficiency of process, and insufficiency of service of process. See Ark. R. Civ. P. 12(b).

In the following months, the circuit court entered orders dismissing with prejudice Dr. Berumen, Nurse Dawkins, and the Sisters of Mercy of the St. Louis Regional Community, Inc., on the grounds that none of those defendants had ever been served.¹ On September 15, 2003, the court entered an order granting the motion to dismiss filed by Nurse Welty. In this order, the court found that the Shotzmans' initial complaint as to Welty had been dismissed on July 31, 2001. Because the complaint against her was not refiled until April 16, 2003, after the one-year savings statute had expired, the court concluded that the complaint against Welty must be dismissed with prejudice.

SEMMC filed a motion to dismiss the complaint against it on December 1, 2003, arguing that the Shotzmans had not served a copy of the summons and complaint on it within 120 days of the filing of the April 16, 2003, complaint. Following a hearing on January 6, 2004, and a telephone conference call on January 8, 2004, the trial court granted SEMMC's motion to dismiss. The court noted that the rules governing service of process require strict compliance, and because the Shotzmans had not strictly complied with those rules, the court had not acquired jurisdiction over the Shotzmans' claims against SEMMC. Further, because this was the second dismissal, it was with prejudice. On February 19, 2004, the trial court entered an order granting the motion to dismiss filed by nurses Welty and Colley.

Following the trial court's dismissal of the complaint against SEMMC, the Shotzmans appealed to the court of appeals. However, as there had been no order dismissing the John Doe defendants, the court of appeals held that there was no final order pursuant to Ark. R. Civ. P. 54(b) and dismissed the appeal on May 6, 2004.

On May 7, 2004, the Shotzmans filed a motion for reconsideration in circuit court, asking that court to reconsider three of its orders: 1) the order of January 9, 2004, dismissing SEMMC; 2) the order of September 15, 2003, dismissing Glenda Welty; and 3) the order of February 19, 2004, dismissing Welty and Diana Colley. The Shotzmans also filed a motion to amend the summons for SEMMC. The trial court denied both of these motions at a hearing held on August 24, 2004, and entered an order dismissing the John Doe defendants on August 27, 2004. From these orders, the Shotzmans have appealed.

In their first point on appeal, the Shotzmans argue that the summonses issued in this case complied with Ark. R. Civ. P. 4. Rule 4(b), governing the service of process, provides as follows:

The summons shall be styled in the name of the court and shall be dated and signed by the clerk; be under the seal of the court; contain the names of the parties; be directed to the defendant; state the name and address of the plaintiff's attorney, if any, otherwise the address of the plaintiff; and the time within which these rules require the defendant to appear, file a pleading, and defend and shall notify him that in case of his failure to do so, judgment by default may be entered against him for the relief demanded in the complaint.

At issue is whether the Shotzmans' summons to SEMMC "contain[ed] the names of the parties" and was "directed to the defendant."

Arkansas law is long settled that service of valid process is necessary to give a court jurisdiction over a defendant. Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003); Raymond v. Raymond, 343 Ark. 480, 36 S.W.3d 733 (2001); Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982). Our case law is equally well-settled that statutory service requirements, being in derogation of common-law rights, must be strictly construed and compliance with them must be exact. See Smith, supra; Carruth v. Design Interiors, Inc., 324 Ark. 373, 921 S.W.2d 944 (1996); Wilburn v. Keenan Companies, Inc., 298 Ark. 461, 768 S.W.2d 531 (1989). This court has held that the same reasoning applies to service requirements imposed by court rules. Carruth, supra; Wilburn, supra. Thus, the technical requirements of a summons set out in Ark. R. Civ. P. 4(b) must be also construed strictly and compliance with those requirements must be exact. Smith, supra; Thompson v. Potlatch Corp., 326 Ark. 244, 930 S.W.2d 355 (1996) (citing Carruth, supra, which held that the motion to dismiss for failure of service of process should have been granted where the summons was not signed by the clerk as required by Rule 4(b)).

In their brief, the Shotzmans first address the question of whether there was compliance with the third requirement of Rule 4(b), i.e., whether the summons contained the name of the parties. In this case, the challenged summons listed, among other defendants' names, a party named "Sisters of Mercy of the St. Louis Regional Community, Inc. d/b/a St. Edward Mercy Medical Center." Just below these names, under a heading captioned "Defendant's Address" was the following:

                  ST. EDWARD MERCY MEDICAL
                  CENTER
                  7301 Rogers Avenue
                  Fort Smith, Arkansas 72903
                

The Shotzmans contend that these two pieces of information, taken together, sufficiently "contain[ed] the names of the parties," in accordance with Rule 4(b). They assert that "no reasonable person could look at the summons and conclude that St. Edward Mercy Medical Center was not a party to the litigation."

The Shotzmans rely heavily on the case of Builder One Carpet One v. Wilkins, 83 Ark.App. 252, 128 S.W.3d 828 (2003), in support of their contention that the failure to list SEMMC as a defendant was merely a "misnomer." In Builder One Carpet One, the plaintiffs filed a complaint against "Builder One Carpet One," serving the summons and complaint on "Richard Akel/Agent ... the duly designated agent for service of process for the defendant, namely Builder One Carpet One." Builder One Carpet One, 83 Ark.App. at 254, 128 S.W.3d 828. The defendant failed to answer the complaint, and the trial court entered a default judgment against Builder One. Builder One filed a motion to set aside the default judgment, arguing that the judgment was void because the attempted service did not comply with Rule 4, and asserting that "Builder One Carpet One" was not a corporation and that Richard Akel was not a registered agent for Builder One. The trial court denied the motion, and Builder One appealed.

On appeal, the court of appeals discussed the question of misnomer on a complaint in regard to the validity of service of...