This аppeal raises the issue of when good cause must be shown in obtaining an extension of the time for service of process under Ark. R. Civ. P. 4(i). Appellants Louise A. Henyan and Robert A. Henyan filed a medical-malpractice suit against Appellees Richard D. Peek, M.D., and Mаrk R. Gibbs, M.D., in the Pulaski County Circuit Court. Appellants were granted two extensions of time to complete service of process on both Appellees. Dr. Peek was served prior to the expiration of the second period of extension, but Dr. Gibbs was not served until one day аfter the period ended. Appellants sought a third extension to serve Dr. Gibbs. However, before the trial court could rule on their motion, Appellees filed motions to set aside the two prior orders on the ground that Appellants had failed to make a showing of good cause to support the extensions. The trial court granted the motions to set aside, denied Appellants’ third extension motion, and dismissed the suit. The court of appeals certified this case to us, as it involves the interpretation and further development of our Rulеs of Civil Procedure. Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. 1-2(b) (5) and (b)(6). We affirm.
The record in this case reflects the following sequence of events. Appellants filed their complaint on November 5, 2002. The case was assigned to the Third Division of the Pulaski County Circuit Court. Under Rule 4(i), Appellants had 120 days after the filing of the complaint to serve summons on Appellees. This time period expired on March 5, 2003. On March 4, Appellants filed a motion for an extension of the 120-day period. The motion did not provide any reason as to why the extension was necessary. Rather, the motion merely reflected:
1. That Plaintiffs filed this action on November 5, 2002 against both named Defendants.
2. That Plaintiffs have not obtained service against either Defendant at this time and pray that this Court enter an Order granting them an additional sixty (60) days or until May 2, 2003, in which to obtain service оn both Defendants.
The motion was granted in an order filed on March 5, giving Appellants until May 2 to serve Appellees. No hearing was held prior to the trial court’s grant of the motion.
On May 1, Appellants filed their second motion for extension of the time to serve Appellеes. This motion was identical to the first one, except that Appellants sought only thirty additional days. This second motion was granted in an order filed on May 5, giving Appellants until June 2 to complete service of process. Again, no reason was given as to why additional time wаs needed, and no hearing was held prior to the grant of the motion.
At some point in the first part of May, the parties were notified that the case was being transferred from the Third Division to the Second Division of the Pulaski County Circuit Court. 1 On May 15, Appellee Dr. Gibbs filed a motion to set aside the two orders of extension entered by the Third Division. In his supporting brief, Dr. Gibbs asserted that the orders were improvidently granted because Appellants had not demonstrated that they had made any effort to serve Appellees within the initial 120-day period, nor had they offеred any good cause for granting the motions. On May 28, Appellee Dr. Peek filed a similar motion and joined in the supporting brief filed by Dr. Gibbs.
On May 29, Appellants filed their response to the motions to set aside. In their supporting brief, Appellants asserted that the extensions were necessary because they had not been able to get a file-marked copy of the complaint from the Pulaski County Circuit Clerk, although they had made several requests for one. They asserted further that a file-marked copy of the complaint was necessary to perfect service on Appellees.
The same date that Appellants filed their response, May 29, they achieved service of process on Dr. Peek. However, they were not able to serve Dr. Gibbs prior to the expiration of the second extended period for service on June 2. As such, Appellants filed on June 2 a third motion for extension to serve Dr. Gibbs, asking for an additional ten days. This third motion reflected in pertinent part that Davis Process Service had attempted to serve Dr. Gibbs at his home and his office and was told that Dr. Gibbs would be out of town until June 5. Dr. Gibbs was actually served on June 3.
The trial court held a hearing on the pending motions on June 18. After hearing argument from both sides, the trial court denied Appellants’ third motion for extension and granted Appellees’ motions to set aside the two previous orders of extension. The trial court found that there was nothing in Appellants’ motions demonstrating good cause to justify the extensions. As for the reason later offered by Appellants, that they were not able to get a file-marked copy of the complaint from the circuit clerk, the trial court indicated that it did not amount to good cause. The trial court reasoned that even though Appellants’ counsel was located in Fayetteville, “there’s not a whole lot of distance between here and Fayetteville, аnd it’s one of those things that we could retrieve fairly easily.” The trial court’s bench rulings were memorialized in an order entered on June 23. This appeal followed.
For reversal, Appellants argue that the trial court erred in setting aside the two orders of extension and dismissing thеir suit. They contend that the motions for extension were timely filed, prior to the expiration of the periods for service, and that Appellee Dr. Peek was served prior to the expiration of those periods. 2 They contend that although they did not state good cause in their motions for extension, good cause was eventually shown. They also contend that they had the right to rely on the orders of extension, despite the later ruling setting them aside. They do not, however, make any argument regarding the trial court’s denial of their third motion for extension to serve Appellee Dr. Gibbs. Accordingly, their arguments on appeal concern only the propriety of the service of Appellee Dr. Peek.
We begin our analysis by reviewing Rule 4(i), which provides:
Time Limit for Service. If service of the summons is not made uрon a defendant within 120 days after the filing of the complaint, the action shall be dismissed as to that defendant without prejudice upon motion or upon the court’s initiative. If a motion to extend is made within 120 days of the filing of the suit, the time for service may be extended by the court upon a showing of good cause. If service is made by mail pursuant to this rule, service shall be deemed to have been made for the purpose of this provision as of the date on which the process was accepted or refused. This paragraph shall nоt apply to service in a foreign country pursuant to Rule 4(e) or to complaints filed against unknown tortfeasors. [Emphasis added.]
This court has consistently held that service requirements under this rule must be strictly construed and compliance with them must be exact. See Smith v. Sidney Monсrief Pontiac, Buick, GMC Co.,
Appellants argue that all that is required to extend the time for service of process under Rule 4(i) is the filing of a motion within 120 days of the filing of the complaint. This argument ignores the plain language of the rule and this court’s holding in King v. Carney,
We construe court rules using the same means and canons of construction used to interpret statutes. Barnett v. Howard,
Here, the plain language of Rule 4(i) dictates that the showing of good cause to extend the period for service must be made prior to the granting of an extension. The rule reads: “If a motion to extend is made within 120 days of the filing of the suit, the time for service may be extended by the court upon a showing of good cause.” (Emphasis added.) The word “upon” is the key to our interpretation. From the context in which it is used in this provision, “upon” means “on the condition of.” See Webster’s Third New International Dictionary 2518 (2002). Thus, the time for service may be extended on the condition of a showing of good cause to justify extending the initial 120-day period. As suсh, it will not suffice, as Appellants urge, for good cause to be offered after the fact to justify an extension that has already been granted.
In the present case, it is undisputed that Appellants made no showing of good cause to extend the time for service under Rule 4(i). It is this omission that distinguishes the present case from King,
Here, neither of Appellants’ motions offered any cause, let alone good cause, for the extensions. Moreover, there is nothing in the trial court’s orders indicating that the time for service was being extended upon a showing of good cause. Without a contemporaneous showing of good cause to grant the extensions, Appellants have failed to strictly comply with the service requirements of Rule 4(i). It therefore is of no consequence whether the reason later offered by Appellants, that they were unable to secure a file-marked copy of the complaint from the circuit clerk, amounts to good cause.
Appellants’ remaining argument is that once the orders of extension were entered, they had the right to rely on them, despite their later being set aside. For support, they cite to our decision in King,
It is well settled that this court will not consider arguments raised for the first time on appeal. See Ford Motor Co. v. Arkansas Motor Vehicle Comm’n,
We thus affirm the trial court’s judgment setting aside the prior orders of extension and dismissing with prejudice Appellants’ complaint. Ordinarily, a dismissal under Rule 4(i) is without prejudice. Kangas,
Affirmed.
Notes
An order of transfer was entered on May 16,2003, which rеflected that the case was being transferred to Second Division because it had been originally filed there prior to Appellants taking a nonsuit.
Appellants acknowledge that it was necessary for them to secure a third order of extension to serve Appellee Dr. Gibbs, whom they admit was not served within the time provided in the second order of extension.