Patsy Simmons Ltd. Partnership v. Finch
2010 Ark. 451
| Ark. | 2010Background
- Pharmerica employees were exposed to toxic carbon monoxide from a poorly ventilated water heater at 614 N. Second St., Rogers.
- Respondents sued Patsy Simmons Limited Partnership et al. for negligence, alleging failure to provide/ install proper ventilation.
- Summons issued June 2, 2008 stated Simmons had 30 days to answer; the correct period is 20 days (Rule 4(b), 12a(1)).
- Simmons challenged personal jurisdiction and moved to dismiss; amendment was filed but no corrected summons was served.
- Circuit court declined to dismiss or grant summary judgment; Simmons petitioned for a writ of prohibition to halt proceedings; issue raised of savings statute and statute of limitations.
- Court ultimately issues writ of certiorari to address lack of jurisdiction due to defective service; dismissals premised on timeliness remain undecided pending outcome of savings statute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does a defective summons deprive jurisdiction? | Simmons argues lack of service due to wrong time period. | Strict compliance with Rule 4 is required; defect bars jurisdiction. | Yes; defective summons lacking proper 20-day period deprived jurisdiction. |
| May the court amend a defective summons within 120 days? | Court could amend under Rule 4(h) within 120 days. | Amendment cannot cure lack of service within 120 days without proper service. | Amendment cannot validate service; lack of service within 120 days persists. |
| Is a writ of prohibition appropriate here? | Prohibition should prevent proceedings lacking jurisdiction. | Prohibition not appropriate where court already acted; certiorari warranted. | Writ of prohibition not appropriate; certiorari proper to review lack of jurisdiction. |
| Should the case be dismissed with prejudice or based on savings statute? | Savings statute may allow refiling; dismissal with prejudice premature. | Issues of statute of limitations and savings statute unresolved. | Premature to decide dismissal with prejudice; savings statute outcome undecided. |
Key Cases Cited
- Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701 (Ark. 2003) (strict construction of service rules needed for jurisdiction)
- Trusclair v. McGowan Working Partners, 2009 Ark. 203 (Ark. 2009) (strict-compliance standard for Rule 4; 120-day service period applies)
- Simes (Simes) v. Cir. Ct., 2009 Ark. 167 (Ark. 2009) (certiorari vs prohibition framework for review of jurisdiction)