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Shotzman v. Berumen9/15/2005
rding 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 non-suit may refile within one year. The question, they submit, is when the non-suit is suffered. The Shotzmans argue that the non-suit could not have been suffered until there was a final order of 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, 352 Ark. 201, 99 S.W.3d 401 (2003); Bonds v. Carter, 348 Ark. 591, 75 S.W.3d 192 (2002); Hurst v. Holland, 347 Ark. 235, 61 S.W.3d 180 (2001); Ark. Pub. Defender Comm'n v. Greene County, 343 Ark. 49, 32 S.W.3d 470 (2000).
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 non-suit. Here, they state simply that the "first amended complaint is not a non-suit," and that there is no order granting a non-suit 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 issue of a default judgment or substituted service." They note that the purpose of the Rules of Civil Procedure is to "secure the just, speedy, and inexpensive determination of every action," see Ark. R. Civ. P. 1, and further point out that Ark. R. Civ. P. 61 provides that the courts "must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties." They maintain that this court's requirement of strict technical compliance with Rule 4 is "archaic," and they cite Ford Life Insurance Co. v. Parker, 277 Ark. 516, 644 S.W.2d 239 (1982), and Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982), in support of their assertion that this court has previously required only "substantial compliance" with the service requirements of Rule 4.
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 affected when that party is being haled into a court that has no jurisdiction over him or her.
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