Holliman v. Johnson
2012 Ark. App. 354
Ark. Ct. App.2012Background
- Appellants Holliman sued appellees Johnsons to set aside Zoe Holliman Revocable Trust on undue influence and lack of capacity grounds.
- The July 21, 2010 complaint was voluntarily dismissed on November 9, 2010.
- A second complaint and lis pendens were filed December 6, 2010; no summons was issued for this action.
- Appellees accepted service of the second complaint; they answered on December 17, 2010, affirmatively moving to dismiss.
- Paragraph 51 of the answer stated the complaint should be dismissed pursuant to Rule 12(b).
- Appellees later moved to dismiss for insufficiency of process (Rule 12(b)(4)) and alleged insufficiency of service (Rule 12(b)(5)); appellants argued appellees waived those defenses because they did not specifically plead them.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 12(b) dismissal language preserved specific defenses | Holliman argues the general Rule 12(b) dismissal phrase did not preserve 12(b)(4)/(5). | Johnsons argued the answer preserved all Rule 12(b) defenses by motion or assertion. | General Rule 12(b) language does not preserve specific 12(b) defenses. |
Key Cases Cited
- Bakker v. Ralston, 326 Ark. 575 (1996) (insufficiency of process/judgment on the merits considerations)
- Posey v. St. Bernard’s Healthcare, Inc., 365 Ark. 154 (2006) (waiver when defenses not raised in responsive pleading)
- Galley v. Allstate Ins. Co., 362 Ark. 568 (2005) (improper venue waived if not raised in responsive pleading)
- S. Transit Co., Inc. v. Collums, 333 Ark. 170 (1998) (insufficiency of process waived when not raised timely)
- Shotzman v. Berumen, 363 Ark. 215 (2005) (specific Rule 12(b) defenses must be pled)
- Wallace v. Hale, 341 Ark. 898 (2000) (waiver principles for Rule 12(b) defenses)
- Farm Bureau Mut. Ins. Co. v. Campbell, 315 Ark. 136 (1993) (pleading specificity for defenses)
- Odaware v. Robertson Aerial-AG, Inc., 13 Ark.App. 285 (1985) (Arkansas appellate treatment of defenses)
- Solis v. State, 371 Ark. 590 (2007) (statutory construction for rules interpretation)