Lead Opinion
| Appellant Tasha Orr, individually and as court-appointed personal representative of the Estate of Melvin Woodson, Jr., deceased, appeals the circuit court’s order dismissing her complaint against appellees Stephen Hudson, M.D., and Timothy Calicott, M.D. (hereinafter “the doctors”), with prejudice. Our court of appeals previously affirmed in part and reversed and remanded in part. See Orr v. Calicott,
In Orr v. Calicott, CA 05-594,
Orr responded, and the circuit court held a hearing on the motion, as well as on motions filed by Orr to strike the doctors’ motion to dismiss, for default judgment, and for Rule 11 sanctions. The circuit court took the matter under advisement and later issued a letter opinion, in which it granted the doctors’ motion to dismiss and denied Orr’s motion |afor default judgment. It then entered its order of dismissal, in which it found:
1. Plaintiffs cause of action was dismissed for lack of proper venue in Lee County. The Plaintiff appealed that dismissal which the Arkansas Court of Appeals affirmed. Plaintiff then refiled her same cause of action in Faulkner County Circuit Court in this case within one year of the issuance of the mandate from the Court of Appeals.
2. The Defendants’ Motion to Dismiss is hereby granted. Arkansas law indicates that when a Plaintiff elects to appeal rather than to plead further when both options are available the option to plead further is waived. See Servewell Plumbing LLC v. Summit Contractors Inc.,362 Ark. 598 ,210 S.W.3d 101 (2005); Cotten v. Fooks,346 Ark. 130 ,55 S.W.3d 290 (2001). On this issue the court finds misplaced the Plaintiffs reliance upon the case of West v. G.D. Searle & Co.,317 Ark. 525 ,879 S.W.2d 412 (1994) and the writings of Newbern, David, Arkansas Civil Practice and Procedure (3d ed.2003) § 22-5 which state that when there is an appeal of a dismissal -without prejudice which is affirmed a new claim may be filed with one year of the appellate court mandate. The Court also finds misplaced the Plaintiffs reliance upon the Doctrine of Law of the Case and the other arguments cited in her brief and at the hearing.
3. Plaintiff has waived her right to plead further in this case. Accordingly, Defendants’ Motion to Dismiss is hereby granted. Plaintiffs Complaint in this case is hereby dismissed with prejudice.
4. Plaintiffs Motion for Default Judgment is hereby denied.
5. Plaintiffs Motion for Rule 11 Sanctions is hereby denied.
6. Plaintiffs Motion to Strike Defendants’ Motion to Dismiss and Amended Motion to Dismiss is hereby denied.
Orr now appeals.
I. Motion to Strike
For her first point on appeal, Orr argues that the circuit court erred in denying her motion to strike where the doctors raised the defense of “waiver” in their motions to dismiss, rather than in an answer. In reviewing the denial of a motion to strike, this court has used 14an abuse-of-discretion standard of review. See Rodgers v. McRaven’s Cherry Pickers, Inc.,
II. Motion to Dismiss
Next, Orr argues that the circuit court erred in dismissing her complaint, asserting that because the court of appeals affirmed the Lee County Circuit Court’s dismissal without modification in Orr I, the Faulkner County Circuit Court was without the power to change or modify that decision by deeming the prior dismissal with prejudice. Along the same lines, Orr contends that because her initial suit was dismissed without prejudice, and the court of appeals affirmed that decision without modification in Orr I, she had the right to refile in Faulkner County. She maintains that this court’s decision in Servewell, supra, is inapplicable to her case because the court of appeals did not affirm with prejudice in Orr I as in Servewell. For these reasons, she claims that the circuit court erred in dismissing her complaint.
The doctors respond that when Orr chose to appeal the Lee County dismissal and the court of appeals affirmed, the dismissal was automatically converted into a dismissal with prejudice barring the claim forever, pursuant to Servewell. Alternatively, they aver that even if the dismissal of Orr’s Lee County complaint was without prejudice, and thus subject to the 1¡¡savings statute, Orr failed to commence a new action within one year after the prior dismissal.
In order to determine whether the circuit court erred in dismissing Orr’s complaint, we must, as an initial matter, determine the effect of the court of appeals’ affirmance in Orr I. In Servewell, this court, in clear and unmistakable terms, held that because Servewell appealed the circuit court’s grant of a motion to dismiss on venue grounds rather than plead further and this court affirmed, the affir-mance would not be “without prejudice.”
Arkansas law is well settled that, when a plaintiff elects to appeal rather than plead further where both options are available, then the option to plead further is waived in the event of affirmance by the appellate court. See, e.g., Cotten v. Fooks,346 Ark. 130 ,55 S.W.3d 290 (2001) (should a plaintiff elect to appeal rather than plead further the option to plead further is waived in the event of affirmance by the appellate court); Hunt v. Riley,322 Ark. 453 ,909 S.W.2d 329 (1995). Here, Servewell could have taken a voluntary nonsuit prior to the trial court’s dismissal of its complaint and filed the matter in Florida in accordance with the forum-selection clause. Because it elected to appeal rather than to plead the case properly in Florida, there is no basis for granting its request to make our affirmance “without prejudice.”
Id. at 613,
While Orr attempts to distinguish her case from other cases in which we have recognized this doctrine, her attempts fail. It is true that in the vast majority of cases in which we have so recognized, the prior dismissal was based upon Ark. R. Civ. P. 12(b)(6). See, e.g., Born v. Hosto & Buchan, PLLC,
Here, Orr filed a lawsuit, which was dismissed without prejudice for lack of venue. Accordingly, pursuant to Serve-well, she had the election to either plead further or to appeal that decision. See also Hollingsworth v. First Nat’l Bank & Trust Co.,
Orr disputes this conclusion, stating that the court of appeals’ opinion merely affirmed the circuit court’s dismissal and did not modify the dismissal to one with prejudice. However, we have previously rejected a similar argument. In Sluder, supra, we observed that when the Sluders chose to appeal the original dismissal of their complaint and this court affirmed that dismissal, it became a dismissal with prejudice; it was “irrelevant that the majority opinion did not specify as such.”
Having decided that the court of appeals’ affirmance in Orr I rendered the dismissal one with prejudice, we turn then to whether the Faulkner County Circuit Court’s dismissal of Orr’s second complaint was error. It was not.
Where a dismissal is with prejudice, it is conclusive of the rights of the parties as if the suit had been prosecuted to a final adjudication adverse to the plaintiff. See Crooked Creek, III, Inc. v. City of Greenwood,
Res judicata means that “a thing or matter has been definitely and finally settled and determined on its merits by the decision of a court of competent jurisdiction.” Beebe v. Fountain Lake Sch. Dist.,
All five elements were met in the instant case. First, as already noted, the dismissal with prejudice of Orr’s initial complaint operated as an adjudication of the merits on Orr’s claims. Second, the Lee County Circuit Court had jurisdiction over the first suit. Third, the doctors’ motion to dismiss for venue was a good-faith contest of Orr’s initial complaint. Fourth, both suits involved Orr’s claims for medical malpractice and wrongful death. And fifth, both suits involved the same parties. For these reasons, Orr was barred by the doctrine of res judicata from bringing suit against the doctors, and we hold that the circuit court did not err in granting the doctors’ motion to dismiss. In addition, because we so hold, it is clear to this court that the circuit court did not abuse its discretion in denying Orr’s motions for sanctions and default judgment. Accordingly, the circuit court’s order is affirmed, and we vacate the opinion of the court of appeals.
| sAffirmed; court of appeals’ opinion vacated.
Notes
. Alternatively, they argued that even if the dismissal was considered to be without prejudice, such that the savings statute would apply, Orr failed to file her complaint within one year of the dismissal and was barred.
. The circuit court entered an order of dismissal on February 14, 2008, but on February 28, 2008, Orr’s counsel filed a letter with the circuit court stating that he and the doctors’ counsel had submitted precedents for his signature. A second order of dismissal was then entered on March 10, 2008.
. At no point in her brief does Orr ask this court to overrule Servewell, nor will we do so. See, e.g., Czech v. Munson,
Concurrence in Part
concurring in part and dissenting in part.
I concur in Part I of the majority opinion as to the untimeliness of the appellant Tasha Orr’s motion to strike, but I must respectfully dissent from Part II of the majority opinion regarding the dismissal of Orr’s complaint. In my view, our case law imposing a waiver of the right to plead further after an affirmance of the granting of a Rule 12(b)(6) motion to dismiss should have no application to venue dismissals pursuant to Rule 12(b)(3). I believe the facts of Servewell Plumbing, LLC v. Summit Contractors, Inc.,
The origin of the rule imposing a waiver of the right to plead further after the appeal of the granting of a motion to dismiss appears to be found in the case of Arkhola Sand & Gravel Co. v. Hutchinson,
On the subsequent appeal in Arkhola II, Arkhola argued that, if its description was indeed found to be insufficient, it should be allowed to present extrinsic evidence to show that the description was adequate. This court agreed in principle, noting that the initial deficiency in the description would not necessarily have precluded Ark-hola from using extrinsic evidence to show that the description was adequate. The court concluded, however, that because Arkhola had appealed the circuit court’s dismissal of its complaint, rather than pleading further, it “waived its opportunity to plead further,” stating:
We agree with Arkhola to the extent that it could have pled further to show by extrinsic evidence the description was sufficient. Arkhola’s deficiency was failure to state a claim and the trial court did not look beyond the pleadings to reach its decision. Nor were there any matters outside the pleadings presented to the trial court on this issue. See ARCP Rule 12(b)(8). Accordingly, the trial court correctly granted the motion to dismiss without any mention of prejudice to Arkhola, and Arkhola had an election at that time whether to plead further or appeal. See Ratliff [v. Moss,284 Ark. 16 ,678 S.W.2d 369 (1984) ].... Arkhola’s actions, however, have precluded that possibility.
Arkhola did not plead further but elected instead to appeal to this court.... We declined to hear the case as it was not a final order under ARCP Rule 54(b). Arkhola then sought a final order form the trial court pursuant to Rule 54(b) and appealed again, which is the case now before us challenging the finding that the description was | ^insufficient. Arkhola has now waived its opportunity to plead further and when the case was resubmitted to the trial court for a final judgment under 54(b), it was properly dismissed with prejudice.
Arkhola II,
The Arkhola II court relied upon the decision in Ratliff v. Moss,
If that procedure had occurred, the plaintiff would have had an election on whether to plead further or appeal. However, the dismissal order recites that it is on summary judgment and so plaintiff was never afforded a chance to plead further. Accordingly, we modify the order of the lower court to the extent that the dismissal is without prejudice.
Id. at 18-19,
This court later expanded on this principle in West v. Searle & Co.,
|12[S]ummary judgment based upon a failure to state a claim upon which relief can be granted is different from summary judgment based upon a lack of disputed material facts, which results in a party’s entitlement to the judgment as a matter of law. The first is the failure to state a claim, the second is the failure to have a claim.... When summary judgment is granted upon failure to have a claim, and the ruling is affirmed on that basis, the matter is ended with prejudice.... However, when summary judgment is granted in the trial court because of failure to have a claim, but is affirmed on the basis of failure to state a claim, we modify to make the dismissal without prejudice in order to afford the plaintiff-appellant a chance to plead further. Ratliff v. Moss,284 Ark. 16 ,678 S.W.2d 369 (1984).
Id. at 36,
Thus, if a plaintiff-appellant is wrongly prevented from having the option to plead further, this court will modify a circuit court’s grant of summary judgment to a dismissal without prejudice to give the plaintiff that opportunity. Id.
In Arkhola II, the court relied on the language in Ratliff, supra, and noted that, as distinguished from the facts of Ratliff, the circuit court’s dismissal in Arkhola I was proper for failure to state a claim, was granted purely on the pleadings, and no matters outside the pleadings were considered. The plaintiff was thus not deprived of its option to either plead further below or appeal. That being the case, the Ark-hola court then interpreted the two options discussed in Ratliff as mutually exclusive — that is, if the plaintiff chooses to appeal, he waives the right to plead further. The Arkhola II court also emphasized that when the first appeal by Arkho-la was dismissed for lack of a final order, Arkhola went back to the circuit court and obtained a final judgment dismissing the claim, and that dismissal was properly entered with prejudice. Arkhola II,
In my view, these principles of law do not apply in the context of the grant of a Rule 12(b)(3) motion to dismiss for improper venue. The granting of the 12(b)(3) motion, in my view, is not a decision on the merits; it is a dismissal without prejudice; and it is a final order for purposes of appeal even though entered without prejudice. See Provence v. Nat’l Carriers, Inc.,
Because a dismissal for lack of proper venue is not a determination on the merits, it does not have preclusive res judicata effect. See, e.g., Parrish v. Marquis,
On the other hand, a dismissal for failure to state a claim, without leave to plead further, is an adjudication on the merits. See, e.g., Ahmed v. United States,
Accordingly, I disagree with the majority that affirmance on appeal transforms a venue dismissal into one on the merits and thus renders it “with prejudice.” Our rule barring further pleading after affirmance on appeal of a Rule 12(b)(6) dismissal should have no application to a determination that venue was improper.
This court’s holding in Servewell Plumbing, LLC v. Summit Contractors, Inc., supra, is largely consistent with the principles discussed above. In Servewell, appellant Servewell Plumbing was the plumbing subcontractor in an apartment complex development. The prime 11 (¡contractor was Summit Contractors, and the developer of the complex was the Gables of Maumelle (“the Gables”). Serve-well originally sued Summit and the Gables for breach of contract for refusal to pay for work done, asserting that the property was subject to a materialman’s lien. Servewell also alleged that the Gables had been unjustly enriched. Servewell,
The circuit court, after a hearing, granted Summit’s motion to dismiss on venue grounds, citing the forum selection clause. It also granted the Gables’ motion for judgment on the pleadings, finding that Servewell had defaulted by not filing a separate response to that motion, and alternatively finding that the posting of the bond mooted the lien claim. Id. at 602,
|17On appeal, most of the claims in Serve-well were disposed of on the merits and were properly barred “with prejudice.” For example, this court found that the Gables’ motion for judgment on the pleadings as to the timeliness of the lien claim was converted to summary judgment, and Servewell defaulted by not responding in a timely fashion. Servewell thus failed to “meet proof with proof’ on that issue. Id. at 609-10,
Each of these issues was a merits-based determination and the disposition of the appeal as to them was properly “with prejudice.” The plaintiff failed to “have a claim” on these issues. See West v. Searle & Co., supra. The only remaining claim that was not disposed of on the merits was the breach-of-contract action against Summit. The circuit court held, and this court agreed, that the forum-selection clause in the contract between Summit and Serve-well, designating Florida as the proper venue, was applicable and enforceable, because Servewell’s 11slien was untimely and the action was thus not one in rem, which could have only been heard in Arkansas. The final paragraphs of the Servewell opinion provide as follows:
Finally, Servewell asks this court that, in the event we affirm the trial court’s rulings, we do so without prejudice to Servewell’s claims. It argues that the merits of its complaint have never been heard, because the matter below was decided primarily on the basis of the venue clause. For that reason, Serve-well asks that, in the event this court affirms, “such ruling be made without prejudice to Servewell’s right to pursue its claims in Florida.”
However, Arkansas law is well settled that, when a plaintiff elects to appeal rather than plead further where both options are available, then the option to plead further is waived in the event of affirmance by the appellate court. Here, Servewell could have taken a voluntary nonsuit prior to the trial court’s dismissal of its complaint and filed the matter in Florida in accordance with the forum-selection clause. Because it elected to appeal rather than to plead the case properly in Florida, there is no basis for granting its request to make our affirmance “without prejudice.”
Id. at 613,
It is clear that as to most of the claims disposed of in Servewell, this language was dicta. As discussed above, most of the claims were disposed of on the merits and were properly dismissed with prejudice. There was no need to also conclude that they were waived by the failure to plead further. To the extent the breach of contract claim against Summit was disposed of only on the basis of improper venue, like the court of appeals, I believe the application of the waiver rule to a venue dismissal was inappropriate. A plaintiff suffering a 12(b)(3) venue dismissal in Arkansas has a long-held right to appeal that determination. See McCutchen v. Ark. State Police,
The appellees in this case argue, and the majority apparently agrees, that application of the waiver rule in venue cases is necessary to prevent “limitless appeals when dealing with venue,” in that a “plaintiff could repeatedly file her lawsuit in an improper venue, get her case dismissed without prejudice, appeal the dismissal, refile in another improper venue, and repeat the entire cycle.” I fail to see the real profit from pursuing such a course, or that rectifying this imaginary concern should take precedence over the very real right to appeal a venue dismissal. The majority has effectively eviscerated the latter right and, as a consequence, I respectfully dissent.
. The complaint had not been dismissed as to two other defendants (the contractors). Arkhola I,
. See also Ark. R. Civ. P. 12(j) ("Attorneys will be notified of action taken by the court under this rule, and, if appropriate, the court will designate a certain number of days in which a party is to be given to plead further.").
. The majority concludes that Provence merely "affirmed” the circuit court's ruling without stating whether it was with or without prejudice. The majority ignores the concluding clause of the first paragraph of Provence, which states that “we affirm the dismissal of appellants’ complaint without prejudice.”
. Here, as the circuit court found, Orr refiled her complaint in Faulkner County within one year of the issuance of the mandate from the court of appeals. See Ark. R. Civ. P. 41(b) (a dismissal under this rule is without prejudice to future action by the plaintiff unless the action has been previously dismissed, whether voluntarily or involuntarily); Ark. Code Ann. § 16-56-126 (Repl.2005); West v. G.D. Searle & Co.,