Rettig v. Ballard, No. 09-361.
According to his complaint, Jimmy Rettig’s vehicle was rear-ended by a truck owned by Mississippi Coast Carrier and driven by Alton Ballard. Rettig filed his complaint on January 23, 2008, and had two summonses issued to the defendants on February 22, 2008, and February 29, 2008, respectively. Although defendants were located in Tennessee and entitled to thirty days in which to respond to Rettig’s complaint, both summonses stated that defendants had twenty days in which to respond. Both defendants were timely served with a summons and complaint.
Defendants filed a motion to dismiss, arguing that (1) the summonses were defective and the case against them had to be dismissed and (2) the statute of limitations had run and the dismissal should be with prejudice. The trial court agreed and dismissed the lawsuit with prejudice because it had never been properly commenced.
On appeal, the Arkansas Supreme Court explained that the savings statute, Ark. Code Ann. § 16-56-126, protected a plaintiff from suffering a complete loss of relief because of a procedural defect. The court further explained that, for purposes of the savings statute, a lawsuit was commenced when (1) a complaint is timely filed and (2) service of the complaint and summons (effective or defective) is completed within the 120 days allowed. If a trial court later finds that the summons was defective, the plaintiff is still entitled to the benefit of the one-year savings statute. Accordingly, the court reversed the judgment of the trial court and remanded the case.
