Cagle v. Terwilliger
2015 Ark. App. 191
| Ark. Ct. App. | 2015Background
- Russell and Geneva Cagle were injured in an automobile collision with Jeffrey Terwilliger on September 4, 2010; the three-year statute of limitations expired September 4, 2013.
- The Cagles filed a complaint against Terwilliger on August 20, 2013 and a summons issued the same day, but service was never completed within the 120-day Rule 4(i) period (deadline December 18, 2013).
- Terwilliger filed a responsive pleading on October 18, 2013 before being served, expressly reserving defenses including insufficiency of service and lack of personal jurisdiction.
- The Cagles claim they were deceived into not completing service because an adjuster allegedly asked counsel to delay service while settlement negotiations occurred; they attached an affidavit by their attorney supporting that assertion.
- Terwilliger submitted adjuster correspondence and an affidavit denying any agreement to delay service and showing attempts to obtain information and notify counsel of the pending lawsuit.
- The circuit court dismissed the action with prejudice after finding service was not completed and the limitations period ran; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the savings statute (Ark. Code Ann. § 16-56-126) tolled or allowed relaunched suit where plaintiff filed within limitations but failed to effect timely service due to alleged fraud | Cagles: they filed within limitations and were fraudulently induced to delay service; savings statute should apply to permit timely service later | Terwilliger: no fraud; plaintiff failed to complete service, statute of limitations expired, and savings statute does not apply | Court: savings statute does not apply where service was never completed and limitations expired; dismissal affirmed |
| Whether filing a responsive pleading before service waived the need for service or estopped defendant from asserting lack-of-service defense | Cagles: Terwilliger’s answer lulled them into believing service was unnecessary or completed | Terwilliger: his response reserved lack-of-service and jurisdictional defenses; filing a defensive pleading does not waive service requirements | Court: filing a defensive response reserving jurisdictional defenses does not waive insufficiency of service; Farm Bureau precedent controls |
| Whether defendant’s reservation of lack-of-service defense complied with Rule 8 (raised for first time on appeal) | Cagles (on appeal): Terwilliger’s pleading insufficiently pleaded reservation under Rule 8 | Terwilliger: reservation was adequate (and issue not preserved) | Court: argument not preserved for appeal; declined to consider merits |
Key Cases Cited
- Ligon v. Stewart, 369 Ark. 380 (de novo review of statutory and rule interpretation)
- Bodiford v. Bess, 330 Ark. 713 (claim commencement depends on Rule 4 service requirements)
- Raymond v. Raymond, 343 Ark. 480 (service of valid process required for personal jurisdiction; service rules strictly construed)
- Carruth v. Design Interiors, Inc., 324 Ark. 373 (statutory service requirements construed strictly)
- Forrest City Machine Works, Inc. v. Lyons, 315 Ark. 173 (savings statute allows new commencement if complaint filed within limitations and timely service later)
- Farm Bureau Mut. Ins. Co. v. Campbell, 315 Ark. 136 (defensive responsive pleading that reserves jurisdictional defenses does not waive insufficiency of service)