Shotzman v. Berumen9/15/2005
This appeal arises from the dismissal with 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 April 16, 2003, the Shotzmans refiled their medical malpractice claim, renaming the above-listed defendants and naming, in addition, Sisters of Mercy Health System, St. Louis, Inc. d/b/a St. Edward Mercy Medical Center; and the Sisters of Mercy Liability Fund.
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 Sheriff's Office delivered a number of those summonses to St. Edward Mercy Medical Center (SEMMC or "St. Edward") at 7301 Rogers Avenue in Fort 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 summons 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 insufficiency 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. 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 prejudice.
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 J
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