This appeal arises from the dismissal with a prejudice of a medical malpractice complaint filed by the appellants, Kevin and Holly Shotzman. On December 4, 2000, the Shotzmans filed a medical negligence complaint against the following defendants: Mike Berumen III, M.D.; Shandra Hall, R.N.; Laura Dawkins, R.N.; Glenda Welty, R.N.; Diana Colley, R.N.; Sisters of Mercy of the St. Louis Regional Community, Inc. d/b/a St. Edwards Mercy Medical Center; St. Edward Mercy Medical Center; and John Does 1, 2, and 3. The Shotzmans subsequently filed a motion for a voluntary non-suit -with respect to defendants Laura Dawkins and Glenda Welty; the circuit court granted the Shotzmans’ motion on July 31, 2001. Nearly a year later, the Shotzmans later moved to dismiss the entire action without prejudice, and the trial court granted the motion on July 22, 2002.
On the same day the complaint was filed, April 16, 2003, the Sebastian County Circuit Clerk issued a number of summonses to be served in the lawsuit. Deputy Sheriff Roy Shermer of the Sebastian County Sheriffs Office delivered a number of those summonses to St. Edward Mercy Medical Center (SEMMC or “St. Edward”) at 7301 Rogers Avenue in Fоrt Smith. When Shermer presented the summonses to Eileen Kradel, Vice President for Compliance and Safety at SEMMC, Kradel accepted service for nurses Welty and Colley, because the two nurses were employed by the hospital. However, Kradel refused to accept a summons on behalf of SEMMC, because the named defendant on the summons was “Sisters of Mercy of the St. Louis Regional Community, Inc. d/b/a St. Edward Mercy Medical Center,” on whose behalf Kradel had no authority to accept service; in addition, the return accompanying that particular summons contained a statement that the summоns was directed to “Sisters of Mercy of the St. Louis Regional Community, Inc. d/b/a St. Edward Mercy Medical Center.” Shermer made the following notation on that return: “Unable to serve. The agent for service was not able to accept service on behalf of the defendant Sisters of Mercy of the St. Louis Regional Community, Inc.”
Despite its refusal to accept service, St. Edward filed an answer on May 9, 2003, on behalf of itself and nurses Welty and Colley. In its answer, SEMMC specifically raised the defenses of lack of jurisdiction over the subject matter, lack of jurisdiction over the person, insufficiency of process, and insufficiеncy of service of process. See Ark. R. Civ. P. 12(b).
In the following months, the circuit court entered orders dismissing with prejudice Dr. Berumen, Nurse Dawkins, and the Sisters of Mercy of the St. Louis Regional Community, Inc., on the grounds that none of those defendants had ever been served. 1 On September 15, 2003, the court entered an order granting the motion to dismiss filed by Nurse Welty. In this order, the court found that the Shotzmans’ initial complaint as to Welty had been dismissed on July 31, 2001. Because the complaint against her was not refiled until April 16, 2003, after the one-year savings statute had expired, the court concluded that the complaint against Welty must be dismissed with prejudicе.
SEMMC filed a motion to dismiss the complaint against it on December 1, 2003, arguing that the Shotzmans had not served a copy of the summons and complaint on it within 120 days of the filing of the April 16, 2003, complaint. Following a hearing on January 6, 2004, and a telephone conference call on January 8, 2004, the trial court granted SEMMC’s motion to dismiss. The court noted that the rules governing service of process require strict compliance, and because the Shotzmans had not strictly complied with those rules, the court had not acquired jurisdiction over the Shotzmans’ claims against
Following the trial court’s dismissal of the complaint against SEMMC, the Shotzmans appealed to the court of appeals. However, as there had been no order dismissing the John Doe defendants, the court of appeals held that there was no final order pursuant to Ark. R. Civ. P. 54(b) and dismissed the appeal on May 6, 2004.
On May 7, 2004, the Shotzmans filed a motion for reconsideration in circuit court, asking that court to reconsider three of its orders: 1) the order of January 9, 2004, dismissing SEMMC; 2) the order of September 15, 2003, dismissing Glenda Welty; and 3) the order of February 19, 2004, dismissing Welty and Diana Colley. The Shotzmans also filed a motion to amend the summons for SEMMC. The trial court denied both of these motions at a hearing held on August 24, 2004, and entered an order dismissing the John Doe defendants on August 27, 2004. From these orders, the Shotzmans have appealed.
In their first point on appeal, the Shotzmans argue that the summonses issued in this case complied with Ark. R. Civ. P. 4. Rule 4(b), governing the service of process, provides as follows:
The summons shall be styled in the name of the court and shall be dated and signed by the clerk; be under the seal of the court; contain the names of the parties; be directed to the defendant; state the name and address of the plaintiff s attorney, if any, otherwise the address of the plaintiff; and the time within which these rales require the defendant to appear, file a pleading, and defend and shall notify him that in case of his failure to do so, judgment by default may be entered against him for the relief demanded in the complaint.
At issue is whether the Shotzmans’ summons to SEMMC “contain[ed] the names of the parties” and was “directed to the defendant.”
Arkansas law is long settled that service of valid process is necessary to give a court jurisdiction over a defendant. Smith v. Sidney Moncrief Pontiac, Buick, GMC Co.,
In their brief, the Shotzmans first address the question of whether there was compliance with the third requirement of Rule 4(b), i.e., whether the summons contained the name of the parties. In this case, the challenged summons listed, among other defendants’ names, a party
ST. EDWARD MERCY MEDICAL CENTER
7301 Rogers Avenue
Fort Smith, Arkansas 72903
The Shotzmans contend that these two pieces of information, taken together, sufficiently “contained] the names of the parties,” in accordance with Rule 4(b). They assert that “no reasonable person could look at the summons and conclude that St. Edward Mercy Medical Center was not a party to the litigation.”
The Shotzmans rely heavily on the case of Builder One Carpet One v. Wilkins,
On appeal, the court of appeals discussed the question of misnomer on a complaint in regard to the validity of service of process, citing May v. Bob Hankins Distributing Cо.,
In May, the supreme court stated that when there is some slight elaboration of a party’s exact corporation name, such an error is immaterial when no separate party is actually involved. Id. (citing Meek v. U.S. Rubber Tire Co.,244 Ark. 359 ,425 S.W.2d 323 (1968)). The court went on to state that a misnomer is only fatal when it is so material and substantial as to indicate a different entity or to produce doubts as to the corporation intended to be sued. Id. (citing 19 Am. Jur. 2d Corporations § 2216 (1986)); see also Winters v. Lewis,260 Ark. 563 ,542 S.W.2d 746 (1976) (stating that when a defendant is sued under a trade name, the complaint is amendable by alleging and asserting the trae name of the individual dоing business under that name where the amendment to the complaint only corrected a misnomer and did not substitute a new party).
Id. at 257 (emphasis added).
The Shotzmans argue that the use of the name “Sisters of Mercy of the St. Louis Regional Community, Inc. d/b/a St. Edward Mercy Medical Center” was simply a “misnomer,” and that SEMMC did appear in the caption. Further, they assert that there could have been no confusion as to whether SEMMC was being sued, as its name appeared on the face of the summons, and because the complaint served with the summons made claims against SEMMC.
However, the Shotzmans fail to acknowledge the import of the languаge from May and Builder One wherein this court and the court of appeals held that a misnomer is fatal when “it is so material and substantial as to indicate a different entity or
This conclusion is further supported by the testimony of Eileen Kradel, SEMMC’s Vice President for Compliance and Patient Safety, who stated that she refused to accept the summons pertaining to the Sisters of Mercy of the St. Louis Regional Community, Inc., because she had no authority to accept service on behalf of the foreign corporation with which she had no connection. She further stated that she refused service because she did not see SEMMC as a separate defendant in the caption of the summons, and because the return that Deputy Sheriff Shermer had was for Sisters of Mercy of the St. Louis Regional Community d/b/a SEMMC.
Clearly, Sisters of Mercy and SEMMC are not the same entity, and, under May and Builder One, the Shotzmans’ nomenclature on the summons “indicate[d] a different entity or . . . produce[d] doubts as to the corporation intended to be sued.” Builder One,
The Shotzmans suggest that this court has held that not every party name need be contained on the face of the summons. Citing Nucor Corp. v. Kilman,
In affirming, this court noted that the summons listed the defendants as “Nucor Corporation, et al.,” and the complaint listed the defendants as “Nucor Corporation, Roderick Warren, individually, andjohn Doe.” Nucor argued that the summons was deficient because it did not identify all of the defendants. This court rejected that argument, writing as follows:
Citing [Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701 ,120 S.W.3d 525 (2003)], Nucor contends that the default judgment in this case is void because the summons failed to comply exactly with Rule 4 of the Arkansas Rules of Civil Procedure. We disagree. In Moncrief, supra, the party at issue, Sidney Moncrief Pontiac, Buick, GMC Company was incorrectly identified in the summons. In this case, Nucor, the party at issue, was correctly identified in the summons. Nucor does not contend that it was incorrectly identified in the summons; rather, Nucor contends that “other defendants” were incorrectly identified.
A literal interpretation of the requirement that the summons “contain the names of the parties” would require a listing of every plaintiff and every defendant on every summons, no matter how many plaintiffs and defendants are parties to the case. We reject this interpretation of Rule 4(b). Nucor, the party at issue, was correctly identified in the summons. In no way did the form of the summons fail to apprise Nucor of the pendency of the suit and afford it an opportunity to be heard. Indeed, Nucor makes no such argument. We hold that the summons was not fatally defective.
Nucor,
Here, unlike the situation in Nucor, the party at issue, SEMMC, was not correctly identified on the summons. This court has been consistent in holding that the technical requirements of Rule 4(b) must be construed strictly, and compliance with those requirements must be exact. See Smith v. Sidney Moncrief, supra; Thompson v. Potlatch Corp., supra. The reason for this rule is that service of valid process is necessary to give a court jurisdiction over a defendant. Tucker v. Johnson, supra (overruled on other grounds by Southern Transit Co. v. Collums,
The Shotzmans raise an additional argument, wherein they suggest that they complied with the fourth requirement of Rule 4(b), namely, that the summons be “directed to” the defendant. The Shotzmans assert that there is no requirement that SEMMC’s name be contained after the language on the summons that says “THE STATE OF ARKANSAS TO DEFENDANT(S),” contending that Rule 4 only requires that the summons be “directed to” the defendant. Because SEMMC was listed under the heading “Defendant’s address,” the Shotzmans urge, they sufficiently complied with the rule. In essence, they urge that “to direct to” is the same as “to include an address for.”
The Shotzmans state that “no rule requires that the name of the defendant follow that language or even that that explicit language appears in the summons at all.” However, this argument is contradicted by this court’s adoption of the Official Form of Summons on May 24, 2001,
2
wherein the court provided that the form was “adopted . . .for use in all cases in which personal service is to be had pursuant to Rule 4(c), (d), and (e) of the Arkansas Rules of Civil Procedure.”
Finally, the Shotzmans point out that there was “some dispute as to the return.” They concede that the record “does not contain a return of service with the name ‘St. Edward Mercy Medical Center’ оn it,” and that the return with the summons that was purportedly directed to SEMMC had the name of the Sisters of Mercy of the St. Louis Regional Community, Inc. on it. However, they assert that these defects were not fatal because: 1) it was a misnomer, and the right entity was served; and 2) Rule 4(i) does not mandate dismissal for failure to file a return of service. As to their first argument, it suffices to repeat that it is clear that their mistake in naming the defendant was not merely a misnomer, and the “right entity” was not served. And as for the second, the dismissal was not simply for the failure to file a return; it was for the failure to effect proper service at all. Thus, there is no merit to any of the Shotzmans’ arguments.
In their second point on appeal, the Shotzmans argue that, even if there had not been good service on SEMMC, the hospital waived the issue in its answer. They contend that Arkansas is a fact-pleading state, and as such, their mere assertion of an objection to sufficiency of process and service of process is insufficient to raise and preserve the issue. Here, they rely on Southern Transit Co. v. Collums,
Rule 12(b) of the Arkansas Rules of Civil Procedure provides that every defense to a claim for relief in any pleading shall be asserted in the responsive pleading thereto, except that the following (among others) may, at the option of the pleader, be made by motion: lack ofjurisdiction over the person, Ark. R. Civ. P. 12(b)(2); insufficiency of process, Rule 12(b)(4); and insufficiency of service of process, Rule 12(b)(5). Rule 12(h) governs the waiver or presentation of certain defenses, and provides in relevant part as follows:
A defense of lack ofjurisdiction over the person ..., insufficiency of process, [or] insufficiency of service of process.. .is waived (A) if omitted from a motiоn in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in the original responsive pleading.
Ark. R. Civ. P. 12(h)(1). This court has held that, when a party elects the option of asserting the defense of insufficiency of process and insufficiency of service of process in its original responsive pleading, it has preserved those defenses under Rule 12(h). See Farm Bureau Mut. Ins. Co. v. Campbell,
In the present appeal, the Shotzmans argue that SEMMC should have pointed out specifically the manner in which they failed to satisfy the requirements of the service provisions of Rule 4. Here, they cite and rеly on Wright & Miller, Federal Practice and Procedure: Civil 2d § 1353 (1990), as well as two federal cases: Photolab Corp. v. Simplex Specialty Co.,
However, there is no reported Arkansas case that promulgates such a requirement. While it is true that this court has held that the “mere denial of a factual allegation is not equivalent to stating facts sufficient to support a legal defense,” see Higgins,
A similar result was reached in Southern Transit Co. v. Collums, supra. In that case, the plaintiff, Collums, mailed a copy of the complaint and summons to Southern Transit’s agent for service, but the summons was improperly directed to another defendant, Bruce Peek. After Collums sought a default judgment against it, Southern Transit filed an answer, arguing for the first time that the default judgment should not be granted because the summons was improperly directed to Peek, instead of Southern Transit. The trial court granted the default judgment, and Southern Transit appealed.
On appeal, this court held that Southern Transit would have prevailed on its failure-of-service argument, because Collums had not strictly complied with the technical requirements of Rule 4. However, the court concluded that Southern Transit had waived the defense by failing to raise the argument in either the answer or a motion filed simultaneously with the answer. Southern Transit argued that it raised the defense in its answer when it denied Collums’s assertions in the complaint that the court had jurisdiction over the parties, but this court, as in Higgins, rejected that argument, writing as follows:
Similar to this case, in Kolb v. Morgan,313 Ark. 274 ,854 S.W.2d 719 (1993), the defendants argued that they had preserved their legal challenge to the issuance of attorney’s fees by generally denying the paragraph of the complaint that contained an allegation that the plaintiff was entitled to attorney’s fees. We explained that “[a] denial of a material allegation is generally thought to be a denial of [a] material factual allegation, see ARCP Rule 8 (b), while avoidance of a claim because of operation of law is generally thought to require the filing of an affirmative defense, see ARCP Rule 8(c).” Id... . Kolb ... clearly established that the mere denial of a factual allegation is not equivalent to stating facts sufficient to support a legal defense.
... Southern Transit cites Farm Bureau Mutual Ins. Co. v. Campbell,315 ,Ark. 136 865 S.W.2d 643 (1993), in support of its contention that such a general denial contained in the answer is sufficient. This argument, however, is misplaced because in Campbell, supra, Farm Bureau asserted the insufficiency-of-process defense in a separate paragraph of its answer, instead of making a general denial of personal jurisdiction as in this case.
Southern Transit,
In Farm Bureau, the Campbells filed a complaint against Farm Bureau, but failed to serve the insurer, instead mailing only a “courtesy copy” of their complaint, without summons, to Farm Bureau’s attorney. Farm Bureau filed an answer denying the allegations in the complaint, “but at the same time, reserved its objection to the court’s lack of jurisdiction and the Campbells’ insufficient service of process.” Farm Bureau,
As mentioned above, SEMMC’s answer to the Shotzmans’ complaint specifically raised the defenses of insufficiency of process and service of process. These objections raised by SEMMC in this case are identical to those raised — and found acceptable — in the Farm Bureau case. As such, SEMMC did not waive its 12(b)(4) and (5) defenses.
The Shotzmans next argue that the trial court erred in denying their motion to amend the summonses. After the trial cоurt dismissed the complaint against SEMMC, the Shotzmans filed a motion to amend the summons on May 7, 2004. In that motion, they suggested that amending the summons would not prejudice the substantial rights of SEMMC, and they attached a proposed summons to SEMMC that comported with the Official Form of Summons promulgated by this court in 2001. The trial court denied their motion, and on appeal, the Shotzmans argue that this decision was an abuse of the trial court’s discretion.
Rule 4(h) provides that a trial court may, in its discretion, permit a party to amend the summons at any time “unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the summons is issued.” Ark. R. Civ. P. 4(h). The Shotzmans contend that the trial court abused its discretion in denying their motion, because SEMMC can show no prejudice arising from the proposed amendment of the summons.
However, at the time the Shotzmans filed their motion to amend summons, they still had not obtained valid service on SEMMC. Service of valid process is necessary to give a trial court jurisdiction over a defendant. See Nucor, supra; see also Southeast Foods, Inc. v. Keener,
In their fourth point on appeal, the Shotzmans argue that the trial court erred in dismissing nurse defendants Welty and Colley, because the savings statute should have applied. They advance two arguments in support of this point: 1) the trial court’s order granting their Rule 41 motion to nonsuit was not a final order under Ark. R. Civ. P. 54(b); and 2) the court erred in agreeing with the nurses’ argument that the first amended complaint, filed on December 29, 2003, operated as an abandonment of the Shotzmans’ claims against the nurses.
With respect to the first subpoint, the Shotzmans assert that the issue is when their nonsuit was suffered. The original complaint in this case was filed on December 4, 2000; the Shotzmans filed a motion for nonsuit as to defendant Welty, and that motion was granted on July 31, 2001. In addition, the Shotzmans later filed a motion to dismiss without prejudice the suit against the remaining defendants, including Colley, and that motion was granted on July 22, 2002. The Shotzmans refiled their suit against all defendants, including both Welty and Colley, on April 16, 2003. Welty filed a motion to dismiss the complaint as to her; the trial court granted the motion on September 15, 2003, finding that the Shotzmans’ refiling of the complaint on April 16, 2003, was more than one year after the Shotzmans nonsuited their complaint regarding Welty on July 31, 2001. Welty and Colley moved together to dismiss the complaint as to them on January 20, 2004, and the trial court entered an order dismissing both Welty and Colley on February 19, 2004, finding that the Shotzmans had failed to timely respond to their motion to dismiss.
On appeal, the Shotzmans note that, under Ark. Code Ann. § 16-56-126 (1987), a plaintiff who has filed a timely action and suffered a nonsuit may refile within one year. The question, they submit, is when the nonsuit is suffered. The Shotzmans argue that the nonsuit could not have been suffered until there was a final order оf dismissal; there was no such order, they contend, until the trial court dismissed the John Doe defendants on August 27, 2004.
The Shotzmans appear to have merged Rule 54(b), which addresses the finality of orders for purposes of preventing piecemeal appeals, with Ark. R. Civ. P. 41 and § 16-56-126, which, taken together, allow parties to voluntarily dismiss their actions and then refile them within one year. However, we do not address the argument further, because the Shotzmans cite no authority in support of their argument that Rule 54(b) applies to orders granting nonsuits under Rule 41. This court has consistently held that it will not consider assignments of error that are unsupported by convincing authority. Holcombe v. Marts,
In a second subpoint, the Shotzmans raised a somewhat confusing argument in which they assert that the nurses wish to treat the first amended complaint, filed December 29, 2003, as an implied second nonsuit. Here, they state simply that the “first amended complaint is not a nonsuit,” and that there is no order granting a nonsuit to Welty and Colley. Again, however, the Shotzmans cite no authority in support of this argument. Therefore, we do not consider it.
Finally, the Shotzmans raise a fifth point on appeal wherein they urge this court to abandon its strict construction of the language of a summons “when there is no
These arguments can be quickly rejected. First, to the extent that they hold that substantial compliance is sufficient, both Parker and Tucker have been overruled. See Southern Transit Co. v. Collums, supra. In addition, the Shotzmans’ argument regarding Rule 61 is not well taken. Rule 61, as mentioned above, requires a court to disregard errors and defects when they do not “affect the substantial rights of the parties.” However, when proper service has not been effected, a court does not and cannot acquire jurisdiction over a defendant. It is impossible to say that a party’s substantial rights have not been аffected when that party is being haled into a court that has no jurisdiction over him or her.
But for the erstwhile examples of Parker and Tucker, this court has never wavered in its determination that the rules governing service must be construed and followed strictly. We will not do so now.
Affirmed.
Notes
The court also granted the motion for summary judgment filed by Sisters of Mercy Health System, Inc., finding that Sisters of Mercy Health System was nothing more than the parent corporation of SEMMC. As the Shotzmans presented no proof that would support a finding that Sisters of Mercy Health System and SEMMC were engaged in ajoint venture, the court concluded that summary judgment for Sisters of Mercy was appropriate.
The Official Form was adopted on May 24,2001, and was effective on July 1, 2001.