Orr v. Hudson
2010 Ark. 484
Ark.2010Background
- Orr, acting as court-appointed personal representative of Melvin Woodson, Jr., sues doctors for medical negligence and wrongful death; circuit court dismissed with prejudice for lack of venue and waiver via Servewell doctrine.
- Orr I (Ark. App. 2006) affirmed Lee County dismissal for lack of venue, prompting Orr to refile in Faulkner County.
- The Faulkner County court dismissed Orr’s second suit, concluding Orr waived the right to plead further by appealing, rendering the dismissal with prejudice.
- Court held that Servewell governs the “appeal or plead further” waiver when a dismissal is on venue grounds, not a merits dismissal.
- Orr appeals the circuit court’s strike denial, the dismissal with prejudice, Rule 11 sanctions denial, and default judgment denial; the supreme court affirms and vacates the court of appeals’ prior ruling.
- Concurrence disputes waivers in venue dismissals and argues Provence distinctions; majority adheres to Servewell for venue dismissals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Effect of appellate affirmance on venue dismissal | Orr argues affirmance without prejudice should permit refiling | Doctors rely on Servewell: affirmance converts to with prejudice | Dismissal with prejudice; Servewell controls |
| Waiver of right to plead further in venue context | Orr elected to appeal, not plead further | Affirmance waives right to plead further | Waiver applies; dismissal affirmed with prejudice |
| Res judicata effect of prior venue dismissal | Dismissal should not bar new action | Dismissal with prejudice bars further action | Res judicata bars Orr’s claims; circuit court's dismissal affirmed |
| Rule 11 sanctions and default judgment | Sanctions/default denied should be reconsidered | Waiver/deferral appropriate given dismissal | Sanctions and default judgment denial affirmed |
| Timeliness and status of waiver rule in venue dismissals | Waiver rule should not apply to venue dismissals | Waiver necessary to prevent endless venue appeals | Waiver rule applicable to venue dismissals; serves to prevent endless cycles |
Key Cases Cited
- Servewell Plumbing, LLC v. Summit Contractors, Inc., 362 Ark. 598 (2005) (appeal-of-venue dismissal causes waiver of pleading unless properly pleaded or nonsuited)
- Cotten v. Fooks, 346 Ark. 130 (2001) (if appellant appeals instead of pleading further, waiver applies)
- West v. Searle & Co., 317 Ark. 525 (1994) (dismissal on merits vs. failure to state a claim—merits vs. non-merits distinction; modify to preserve pleading rights)
- Ratliff v. Moss, 284 Ark. 16 (1984) (summary-judgment-for-failure-to-state-a-claim should be without prejudice to plead further)
- Arkhola Sand & Gravel Co. v. Hutchinson, 289 Ark. 570 (1987) (waiver and appeal versus pleading further in procedural context)
- Arkhola Sand & Gravel Co. v. Hutchinson, 289 Ark. 313 (1986) (initial dismissal; final judgment under Rule 54(b) considerations)
- Sluder v. Steak & Ale of Little Rock, Inc., 368 Ark. 293 (2006) (affirmance often results in prejudice when merits were adjudicated)
- Provence v. National Carriers, Inc., 2010 Ark. 27 (2010) (affirmance of venue dismissal without prejudice addressed; guiding principle for venue cases)
- Hollingsworth v. First Nat’l Bank & Trust Co., 311 Ark. 637 (1993) (waiver-related pleading right after dismissal)
- Hunt v. Riley, 322 Ark. 453 (1995) (earmarks waiver when appealing rather than pleading further)