608 S.W.3d 602
Ark.2020Background:
- Plaintiff Lisa Ramey sued to bar Jimmie L. Wilson from the ballot, alleging federal and state convictions rendered him ineligible; she served Wilson with her amended complaint.
- Doyle Webb and appellant David Tollett (Republican nominee) filed a motion to intervene and a proposed complaint in intervention; the filings' certificates showed service only on plaintiff’s counsel (David Couch), not on Wilson.
- The circuit court granted intervention to Tollett; at trial Wilson appeared and stated he had not seen Tollett’s complaint; Tollett’s counsel conceded he had not served Wilson personally or electronically.
- The court dismissed Ramey’s complaint for lack of standing/merits and dismissed Tollett’s complaint for failure to serve Wilson; the court labeled the matter a Rule 78(d) ‘‘special proceeding’’ and dismissed Tollett’s complaint with prejudice.
- Tollett appealed, arguing (1) Wilson had notice/waived formal service, (2) dismissal should be without prejudice under Rule 41(b), and (3) Wilson is ineligible on the merits.
- The Supreme Court affirmed dismissal for failure to serve but modified the dismissal from with prejudice to without prejudice and declined to reach the merits of Wilson’s eligibility.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to serve motion to intervene/complaint justified dismissal | Tollett: Wilson had notice and could obtain filings; electronic consent existed | Rules 5 and 24 require mandatory service; no order excused service and Tollett conceded non-service | Court: Mandatory service required; dismissal for failure to serve upheld |
| Whether Wilson waived service by appearing or litigating | Tollett: Wilson waived by appearing, defending, and seeking relief | Wilson: his appearance responded only to Ramey’s complaint, not to intervenor complaint | Court: No waiver; appearance in response to Ramey did not waive service for intervenor |
| Whether dismissal must be with prejudice because matter was a Rule 78(d) special proceeding | Tollett: special election timetable requires preclusive dismissal | Opposing: Rule 41(b) governs first involuntary dismissal as without prejudice; Rule 78 does not override Rule 41 | Court: Modified dismissal to without prejudice per Rule 41(b); Rule 78(d) does not supersede Rule 41 |
| Whether court should decide Wilson’s eligibility on the merits | Tollett: Even if procedural defect, merits show ineligibility | Court/Defendants: Procedural dismissal precludes reaching merits | Court: Declined to reach merits because dismissal for lack of service was proper |
Key Cases Cited
- Barrett v. Thurston, 593 S.W.3d 1 (2020 Ark.) (bench-trial findings reviewed for clear error)
- Richard v. Union Pac. R.R. Co., 388 S.W.3d 422 (2012 Ark.) (de novo review for court-rule construction)
- Vaughn v. Mercy Clinic Ft. Smith Communities, 587 S.W.3d 216 (2019 Ark.) ("shall" denotes mandatory compliance)
- Pender v. McKee, 582 S.W.2d 929 (Ark. 1979) (service defects may be waived by appearance in some cases)
- Prock v. Bull Shoals Boat Landing, 431 S.W.3d 858 (2014 Ark.) (avoid constitutional rulings when case can be disposed on nonconstitutional grounds)