Tucker v. Sullivant, 2010 Ark. 170 (Ark. 4/15/2010)
| Decision Date | 15 April 2010 |
| Docket Number | 09-1258. |
| Citation | 2010 Ark. 170 |
| Parties | Paul H. TUCKER Jr. and Andrew Raybon Tucker, Appellants, v. Rosemary SULLIVANT, Appellee. |
| Court | Arkansas Supreme Court |
Appeal from the Craighead County Circuit Court, Western District, No. CV-04-135, Hon. David N. Laser, Judge.
Reversed and Remanded.
Appellants Paul Tucker Jr. and Andrew Raybon Tucker appeal the order of the Craighead County Circuit Court dismissing their action for an accounting of the Maurine M. Sullivant Trust (the "Trust"). On appeal, the Tuckers argue that the circuit court erred in dismissing their action for failure to comply with the Arkansas Savings Statute, codified at Ark. Code Ann. § 16-56-126(a)(1) (Supp. 2005), because they filed an amended complaint under the same docket number of the original complaint that had been voluntarily nonsuited. We assumed jurisdiction of this case as it requires clarification of the law; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b)(5) (2009). We reverse and remand.
Appellants are two of four beneficiaries of the Trust. The other two beneficiaries are Appellee Rosemary Sullivant, who is also Appellants' aunt and trustee of the Trust, and Peggy Sullivant Tucker, Appellants' mother. On or about April 11, 2003, Appellee decided to dissolve the Trust and thereafter liquidated the remaining Trust assets. Appellants filed an action for accounting on February 20, 2004. Appellants subsequently took a voluntary nonsuit, and on April 16, 2008, an order to that effect was entered.
Appellants filed an "Amended Complaint for Accounting By Trustee" on March 31, 2009. The amended complaint was filed under the same docket number as the previously nonsuited complaint. Timely service was completed. On April 28, 2009, Appellee filed a motion to dismiss. Therein, she argued that Appellants had filed an amended complaint that was a mere recitation of the prior complaint and because the prior complaint had been dismissed, the case could not be reopened pursuant to Ark. R. Civ. P. 59 or 60, as no applicable grounds existed. Appellee further asserted that the statute of limitations, which was five years, was not tolled and any suit for an accounting had to have been filed on or before April 11, 2008. Finally, Appellee asserted that Appellants were not entitled to the benefit of the savings statute, as the filing of an amended complaint did not commence a new action. Appellants asserted that they had complied with the requirements for commencing an action, in that they filed a complaint and timely obtained service on Appellee and, thus, complied with the requirement of the savings statute. Appellants also argued that the savings statute is remedial in nature and is to be liberally construed so as to preserve their cause of action.
A hearing was held on June 9, 2009. Appellee argued that her motion to dismiss should be granted for three reasons: (1) the amended complaint was a nullity; (2) the circuit court lacked jurisdiction to act on the amended complaint because of its prior nonsuit of the original complaint; and (3) Appellees failed to comply with the savings statute by commencing a new action within one year of the nonsuit. Appellants countered that the savings statute did not define "new action" and they believed filing the amended complaint and timely completing service complied with the requirement of commencing a "new action." The circuit court ruled from the bench that while the law needed to be clarified, it was granting the motion to dismiss on the basis that the filing of an amended complaint did not comply with the savings statute's requirement that a new action be commenced.
Appellants filed a motion for reconsideration following the circuit court's oral pronouncement. The trial court subsequently entered a written order memorializing the bench ruling and also entered a written order denying the motion for reconsideration. This appeal followed.
When a complaint is dismissed on a question of law, this court conducts a de novo review. Dollarway Patrons for Better Schs. v. Morehead, 2010 Ark. 133, ___ S.W.3d ___. Accordingly, the circuit court's ruling is given no deference on appeal. Ark. Dep't of Health and Human Servs. v. Storey, 372 Ark. 23, 269 S.W.3d 803 (2007).
The issue presented to this court is whether or not Appellants' filing of a complaint under the same docket number, as a previously nonsuited case, constituted the commencement of a new action for purposes of the savings statute. Appellants argue that their filing of an amended complaint under the previous docket number was sufficient to comply with the savings statute's requirement that a new action be commenced within one year. More specifically, Appellants argue that the savings statute does not define a "new" action but that under Ark. R. Civ. P. 3, which provides that an action is commenced by filing a complaint with the clerk of the court, there is no mention of a docket number. Appellee argues that the circuit court correctly dismissed the complaint because it lacked jurisdiction due to Appellants' failure to comply with the savings statute.
We begin our analysis by reviewing the relevant provision of the savings statute, which provides as follows:
If any action is commenced within the time respectively prescribed in this act, in §§ 16-116-101-16-116-107, in §§ 16-114-201-16-114-209, or in any other act, and the plaintiff therein suffers a nonsuit, or after a verdict for him or her the judgment is arrested, or after judgment for him or her the judgment is reversed on appeal or writ of error, the plaintiff may commence a new action within one (1) year after the nonsuit suffered or judgment arrested or reversed.
Ark. Code Ann. § 16-56-126(a)(1). The statute is silent as to what or how the commencement of a new action is, but this court has addressed the applicability of the statute on numerous occasions. Most recently in Rettig v. Ballard, 2009 Ark. 629, ___ S.W.3d ___, this court explained that the savings statute requires an action to be commenced before the statute will apply. We further explained as follows:
For purposes of the savings statute, a suit is commenced when the complaint is timely filed and service of the complaint and summons (effective or defective), is completed within the 120-day period required by [Ark. R. Civ. P.] 4(i):
In sum, to toll the limitations period and to invoke the saving statute, a plaintiff need only file his or her complaint within the statute of limitations and complete timely service on a defendant. A court's later ruling finding that completed service invalid does not disinherit the plaintiff from the benefit of the saving statute. Our interpretation of § 16-56-126 meets with the liberal and equitable construction which must be given it in order to give litigants a reasonable time to renew their cause of action when they are compelled to abandon it as a result of their own act or the court's.
Id. at 4, ___ S.W.3d at ___ (quoting Forrest City Mach. Works, Inc. v. Lyons, 315 Ark. 173, 177, 866 S.W.2d 372, 374 (1993)).
The issue of whether or not the filing of that new complaint under a previous docket number satisfies the commencement requirement has heretofore never been addressed. In support of its motion to dismiss, Appellee relied primarily on the court of appeals' opinion in Technology Partners, Inc. v. Regions Bank, 97 Ark. App. 229, 245 S.W.3d 687 (2006). In that case, Technology Partners, Inc. ("TPI"), brought suit against Regions Bank after discovering that the company's sales manager had intercepted certain rebate checks and deposited them into his personal account at Regions. Initially, TPI filed suit against its sales manager but then dismissed that action after the manager declared bankruptcy. In June 2003, TPI filed an amended complaint in the previously dismissed action, attempting for the first time to add Regions as a defendant. That case was filed under the previous docket number, Pulaski County Docket No. CV02-2845. The circuit court dismissed the amended complaint, ruling that it had no jurisdiction because the initial suit had remained in a state of dismissal and had not been reopened. Thereafter, on January 14, 2004, TPI brought a new suit against Regions, but the circuit court granted Regions's motion for summary judgment on the basis that the suit had been filed outside the statute-of-limitations period. In so ruling, the circuit court rejected TPI's argument that its complaint had been rendered timely by the savings statute. On appeal, TPI argued in relevant part that its original suit filed against its manager in 2002 was dismissed in 2003 and, therefore, its suit against Regions filed on January 14, 2004, was filed within one year of the prior dismissal. In affirming the circuit court, the court of appeals stated the following:
This argument fails for several reasons, but we need only mention one. TPI's lawsuit in Docket No. CV02-2845 was originally filed against Newson only. That suit was dismissed on June 17, 2002. On June 16, 2003, TPI tried to sue Regions by simply amending the complaint in the dismissed action. According to West v. G.D. Searle & Co., 317 Ark. 525, 879 S.W.2d 412 (1994), a new action was required to be filed, not simply an amended complaint adding a new defendant in the dismissed action. The 2002 dismissal therefore remained in effect for over one year, and Regions was not made a party to any valid lawsuit until January 2004. The saving statute therefore did not apply, as the trial court correctly ruled.
Id. at 238, 245 S.W.3d at 695.
The circuit court found this case to be dispositive of the instant matter, as opposed to Hill-Rom Co., Inc. v. Swink, 65 Ark. App. 71, 984 S.W.2d 834 (1999), a case advanced by Appellants in support of their contention that they had complied with the savings statute. In Hill-Rom, the Swinks filed suit against a hospital, alleging that Mr....
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