Deering v. Supermarket Investors, Inc.
2013 Ark. App. 56
Ark. Ct. App.2013Background
- Appeal from an October 25, 2011 order dismissing with prejudice the Deerings' complaint against Supermarket Investors, Inc. for defective service of process.
- Second slip-and-fall action arose from February 19, 2003 incident at a Supermarket Investors grocery store; initial Grant County case filed February 21, 2006 and later dismissed without prejudice after a nonsuit.
- Supermarket Investors filed for bankruptcy October 13, 2009; trustee Randy Rice appointed; relief from stay granted December 2, 2009 to pursue action.
- Service on Rice occurred December 2010; summons allegedly defective (30-day response instead of 20 days for domestic corporation).
- 2011 discovery and motion practice: de Lange sought extension and/or discovery responses; trial court extended service deadline to July 5, 2011 but no further service occurred.
- Trial court ultimately dismissed on October 25, 2011 for defective service; Deerings appealed asserting waived defenses and abuse of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Defendants waived insufficiency of process defense by withholding discovery responses | Deering asserts defense was waived due to failure to disclose basis through discovery. | Supermarket Investors contends discovery responses were privileged or not waived. | Not preserved for review; waiver issue not properly ruled on. |
| Whether the time for service should have been extended despite unresolved service issues | Deering seeks extension for service based on good cause and discovery progress. | Defendant objects; in any event the issue was not timely ruled on. | Not preserved for review; no extension ruling occurred. |
| Whether service on the bankruptcy trustee constituted valid service on the defendant | Service on Rice should be effective to subject the defendant to the action. | Summons mis-stated 30 days instead of 20, rendering service defective and requiring dismissal. | Summons defective on its face; service on trustee insufficient to validate process; dismissal proper. |
| Whether discovery responses could cure or waive defective service | Discovery would illuminate the factual basis for insufficiency of process defenses. | Responses denied or privileged; discovery not necessary to identify the defect. | No relief; discovery issues not reviewed and not outcome-determinative. |
Key Cases Cited
- Loghry v. Rogers Grp., Inc., 348 Ark. 369 (2002) (trial court broad discretion in discovery; abuse only for prejudicial error)
- Chapman v. Ford Motor Co., 245 S.W.3d 123 (Ark. 2006) (abuse of discretion requires improper action and lack of due consideration)
- Roberts v. Jackson, 384 S.W.3d 28 (2011) (failure to obtain ruling is procedural bar to appellate review)
- Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978) (discovery in matters of jurisdiction/venue permissible under Rule 37)
- Young v. Smith, 2012 Ark. App. 494 (2012) (guidance on identifying defective service within procedural rules)