Carroll "Don" Johnson v. Schumacher Group of Arkansas, Inc.

Cite as 2019 Ark. App. 545
ARKANSAS COURT OF APPEALS
Digitally signed by Elizabeth Perry
Date: 2022.08.08 11:44:04 -05'00'
DIVISION I
Adobe Acrobat version: No. CV-18-509
2022.001.20169

CARROLL “DON” JOHNSON Opinion Delivered: November 20, 2019

APPELLANT APPEAL FROM THE POPE
V. COUNTY CIRCUIT COURT
[NO. 58CV-16-538]
SCHUMACHER GROUP OF
ARKANSAS, INC.; POPE HONORABLE DENNIS CHARLES
EMERGENCY GROUP, LLC; AND SUTTERFIELD, JUDGE
RUSSELLVILLE HOLDINGS, LLC,
D/B/A ST. MARY’S REGIONAL AFFIRMED
MEDICAL CENTER

APPELLEES

ROBERT J. GLADWIN, Judge

The appellant, Dr. Carroll “Don” Johnson, filed a complaint in the Pope County

Circuit Court alleging that appellee Pope Emergency Group (Pope) and its parent company,

Schumacher Group of Arkansas (Schumacher), were liable for breach of contract and

wrongful termination. Dr. Johnson also sued Russellville Holdings, LLC, which owns and

does business as St. Mary’s Regional Medical Center (St. Mary’s), for tortious interference

with the professional-services contract that Dr. Johnson executed with Pope. Pope also filed

a counterclaim for breach of contract alleging that Dr. Johnson failed to return a $30,000

signing bonus as required by the terms of the agreement.
Dr. Johnson nonsuited all his claims after each of the appellees filed motions for

summary judgment. Pope elected to continue with its breach-of-contract claim, and in a

companion case that we also decide today, see Johnson v. Pope Emergency Group, 2019 Ark.

App. 544, 589 S.W.3d 462, we affirm the circuit court’s order granting summary judgment

to Pope.

Dr. Johnson refiled his claims against Pope, Schumacher, and St. Mary’s in a separate

case, Pope County Circuit Court case No. 58CV-16-538. The circuit court dismissed those

claims with prejudice, however, after ruling that the summonses that Dr. Johnson issued

with his refiled complaint were fatally defective. Dr. Johnson now challenges that order in

this appeal. We affirm.

I. Facts and Procedural History

The facts underlying Dr. Johnson’s breach-of-contract, wrongful-termination, and

tortious-interference claims are set forth in detail in our opinion in Johnson v. Pope Emergency

Group, supra; consequently, we will not repeat them here. Rather, we resume the story from

the point at which Dr. Johnson refiled his claims.

Dr. Johnson refiled his complaint against Pope, Schumacher, and St. Mary’s on

November 21, 2016. All the defendants were served with summonses that provided, in

material part, if each of them “failed to respond within the applicable time period, judgment

by default will be entered against [them] for the relief demanded in the complaint.”

(Emphasis added.) Several months later, Pope, Schumacher, and St. Mary’s filed motions

to dismiss the complaint because the summonses did not strictly comply with Ark. R. Civ.

P. 4(b), which expressly requires summonses to state that judgments by default may—not

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will—be entered in the event defendants fail to timely respond. They argued that dismissal

was mandatory, moreover, because Dr. Johnson failed to seek an extension or serve a

corrected summons within 120 days after filing the complaint, as required by Ark. R. Civ.

P. 4(i).

While the motions to dismiss were pending, Pope and Schumacher filed a motion

for protective order pursuant to Ark. R. Civ. P. 26. The motion alleged that Dr. Johnson

had refiled claims that “he voluntarily dismissed in a previous action after the parties had

completed discovery, including a deposition of a corporate representative for the

Schumacher-Pope defendants.” The motion further alleged that Dr. Johnson had “served

another [Ark. R. Civ. P] 30(b)(6) deposition notice seeking to depose [the corporate

representative] a second time.” Therefore, Pope and Schumacher requested that the court

issue a protective order “quashing [the] repetitive deposition notice” and “forbidding [Dr.

Johnson] from engaging in . . . duplicative discovery.” Pope and Schumacher also requested

that the circuit court “award them their expenses, including attorney’s fees, incurred in

relation to the motion for protective order[.]”

The circuit court entered an order dismissing Dr. Johnson’s refiled claims on

February 28, 2018. The court agreed that the summonses failed to strictly comply with Rule

4(b). The circuit court also rejected Dr. Johnson’s argument that Pope and Schumacher

waived their defense of insufficient process by filing a motion for protective order and

seeking attorney’s fees, which Dr. Johnson claimed was a request for affirmative relief that

ordinarily waives jurisdictional defects. The circuit court dismissed the claims with prejudice,

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moreover, because Dr. Johnson “voluntarily dismissed these same claims against

Schumacher, Pope, and St. Mary’s in a previous action filed in this [c]ourt.”

Dr. Johnson now appeals the circuit court’s order, arguing that the circuit court erred

in two respects. First, he asserts that this court has previously refused to require strict

compliance with Ark. R. Civ. P. 4(b) when an alternative interpretation would avoid

“absurd consequences” and give effect to the rule’s purpose. In that vein, Dr. Johnson argues

that the defect in the summonses issued in this case, stating that a default judgment will—

rather than may—be entered in the event the defendants fail to respond, was a mere

grammatical error that did not otherwise prevent the appellants from being apprised of the

pendency of the lawsuit or deny them the opportunity to be heard. Second, Dr. Johnson

insists that Pope and Schumacher waived their challenge to the sufficiency of the summonses

when they sought attorney’s fees in connection with their motion for protective order. As

he did below, Dr. Johnson asserts that the prayer for attorney’s fees was the sort of request

for affirmative relief that this court has previously held waives sufficiency of process and

other challenges to personal jurisdiction.

II. Standard of Review

“In cases where the appellant claims that the [circuit] court erred in granting a motion

to dismiss, appellate courts review the [circuit] court’s ruling using a de novo standard of

review.” Holliman v. Johnson, 2012 Ark. App. 354, at 4, 417 S.W.3d 222, 224. The de novo

standard is also applied when the issue presented involves, as it does here, the correct

interpretation of an Arkansas court rule. Id.

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III. Discussion

A. Defective Summonses

Dr. Johnson first argues that the circuit court erred by ruling that the summonses

were fatally defective under Ark. R. Civ. P. 4(b). According to Dr. Johnson, the defect that

incorrectly warned the appellants that judgment by default will—as opposed to may—be

entered against them was not fatal. It was a mere grammatical error, he says, that did not

otherwise prevent the appellants from being notified of the pendency of the lawsuit or deny

them the opportunity to be heard. In response, the appellees argue that this court has

required strict compliance with the requirements of Rule 4(b), and the rule specifically

requires that summonses notify defendants that default judgments may—not will—be

entered against them. We believe that the supreme court cases requiring strict compliance

with Rule 4(b) warrant affirming the circuit court’s order.

“The purpose of [a] summons is to apprise a defendant that a suit is pending against

him and afford him an opportunity to be heard.” Malloy v. Smith, 2017 Ark. App. 288, at

9, 522 S.W.3d 819, 825. Therefore, “[s]tatutory service requirements, being in derogation

of common-law rights, must be strictly construed and compliance with them must be exact

in order to give a court jurisdiction over a defendant.” Id. “This court has held that the same

reasoning applies to service requirements imposed by court rules.” Id. “The technical

requirements of a summons set out in Ark. R. Civ. P. 4(b) must be construed strictly and

compliance with those requirements must be exact.” Id. Indeed, “[t]he bright-line standard

of strict compliance permits certainty in the law; whereas, a substantial-compliance standard

would lead to an ad hoc analysis in each case in order to determine whether the due-process

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requirements of the Arkansas and [United States] Constitutions have been met.” Earls v.

Harvest Credit Mgmt. VI-B, LLC, 2015 Ark. 175, at 6, 460 S.W.3d 795, 798 (internal

citations omitted).

Rule 4(b) of the Arkansas Rules of Civil Procedure governs the form of summonses

and provides as follows:

The summons shall be styled in the name of the court and issued under its
seal, dated and signed by the clerk or a deputy clerk, and directed from the State of
Arkansas to the defendant to be served. It shall contain, in its caption, the names of
the plaintiff and defendant or, if there are multiple parties, the names of the plaintiff
and the defendant listed first in the complaint; the address of the defendant to be
served, if known; the name and address of the plaintiff’s attorney, if any, otherwise
the address of the plaintiff; the time within which these rules require that the
defendant to be served must appear, file a responsive pleading or motion, and defend;
and notice that the defendant’s failure to appear, respond and defend within the time
allowed may result in entry of judgment by default against the defendant for the relief
demanded in the complaint.

(Emphasis added.) This language “sets forth the items that must be included in a summons,

the lack of which render it void under the [strict-]compliance standard.” Talley v. Asset

Acceptance, LLC, 2011 Ark. App. 757, at 4. The rule expressly provides that a defendant

shall be notified that a judgment may—not will—be entered against him if the defendant

fails to appear.

The error is not “merely grammatical,” as Dr. Johnson contends. We have long

recognized the substantive difference between the permissive term “may” and the

mandatory term “shall”—a synonym of “will.” See Schueller v. Schueller, 86 Ark. App. 347,

353, 185 S.W.3d 107, 111 (2004). Additionally, as Pope and Schumacher assert in their

brief, Rule 4(b)’s use of the word “may” is substantively correct because Ark. R. Civ. P.

55(a) provides a court “may” enter a default judgment when a party fails to “plead or

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otherwise defend” in a lawsuit. Therefore, the summonses that Dr. Johnson issued in his

refiled lawsuit, which warned that a default judgment will be entered if the appellees failed

to respond, did not strictly comply with the requirements of Rule 4(b).

Further, while it is tempting to view dismissal of the lawsuit for this seemingly

harmless defect as the kind of “absurd consequence” that the supreme court wanted to avoid

in both Nucor Corp. v. Kilman, 358 Ark. 107, 122–23, 186 S.W.3d 720, 729 (2004), and

Hall v. State Farm Bank, 2015 Ark. App. 287, at 5, 462 S.W.3d 701, 704, those cases are

distinguishable from the case at hand. Unlike here, the summonses in those cases did not

contain an erroneous statement of any of the express provisions in Rule 4(b).

In Nucor, for example, the alleged defect in the summons was a matter of

interpretation. The appellant, Nucor Corporation, argued that a default judgment should

be set aside because the summons in that case, which was directed to “Nucor Corporation,

Et Al,” did not list the other defendants by name. According to Nucor, this defect was fatal

because Rule 4(b) required the summons to “contain the names of the parties.” The issue

before the supreme court, therefore, was whether Rule 4(b) required “a listing of . . . every

defendant on every summons, no matter how many . . . defendants are parties to the case,”

see Nucor Corp., 358 Ark. at 123–24, 186 S.W.3d at 729, or whether the rule simply required

proper identification of the defendant to whom the summons was directed. The supreme

court chose the latter interpretation, observing that it was most in line with the purpose of

Rule 4(b)—to ensure that a summons notifies a defendant of the pendency of the lawsuit

and affords him or her the opportunity to be heard. Therefore, the summons directed to

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Nucor, which properly identified it as a defendant in the case, was not fatally defective

because it failed to name the other defendants. Id., 358 Ark. at 124, 186 S.W.3d at 729.

Similarly, in Hall, appellant John Hall argued that the summons that was directed to

both Hall and his ex-wife was defective. According to Hall, Rule 4(b) did not allow a single

summons to be directed to multiple defendants, providing only that a summons shall be

“directed to the defendant” in the singular. We rejected that argument and held that the

summons was not defective because “there is no express prohibition in Rule 4(b) or the

included form to listing more than one defendant, despite [Hall’s] assertion to the contrary.”

Hall, 2015 Ark. App. 287, at 4, 462 S.W.3d at 704. We also observed that Hall’s proposed

interpretation of the rule would lead to “absurd consequences,” especially when Hall was

apprised of the pendency of the lawsuit and was granted an opportunity to be heard in

accordance with the language of Rule 4(b). See id. at 5, 462 S.W.3d at 704.

The defect in this case is not a matter of interpretation. As we discuss above, the

summonses issued to the appellees erroneously state an express requirement of Rule 4(b)—

that a default judgment may—not will—be entered if the defendant fails to timely answer

the complaint.

The supreme court has found such defects to be fatal, moreover, even when they

appear harmless to the defendant. The supreme court’s decision in Earls is particularly

illustrative. There, the appellants, Linda and Tony Earls, argued that the circuit court erred

by entering a default judgment against them because the summons misstated the response

time for incarcerated defendants. The supreme court found the defect to be fatal even

though the couple was not incarcerated. In doing so, the court reiterated that “the technical

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requirements of a summons set out in Ark. R. Civ. P. 4(b) must be construed strictly and

compliance with those requirements must be exact” and that “the bright-line standard of

strict compliance permits certainty in the law[.]” Earls, 2015 Ark. 175, at 5–6, 460 S.W.3d

at 798 (internal citation omitted). The court also wrote the following:

[T]he language of Rule 4(b) requiring that the summons be directed to “the defendant,”
or in this case, the Earleses, must be read in conjunction with Rule 12(a), which provides
for varying response times for in-state, out-of-state, and incarcerated defendants. Given
that Rule 4 and Rule 12 govern summonses and the response times therein, we cannot
ignore our case law that states that a summons must comply exactly and not substantially
with the requirements of Rule 4(b). Thus, we conclude that the response times for each
category of defendant—in-state, out-of-state, and incarcerated defendants—must be
correct and exact.

Id. at 6–7, 460 S.W.3d at 799.

Likewise, in Trusclair v. McGowan Working Partners, 2009 Ark. 203, at 2–6, 306

S.W.3d 428, 430–31, the supreme court held that the summons issued to McGowan was

fatally defective because it erroneously restricted the response time allowed for McGowan—

an out-of-state defendant. Rather than the thirty-day response time set forth in Ark. R.

Civ. P. 12(a)—the summons provided that McGowan must respond within the stricter

twenty-day response time allotted to in-state defendants. 1 The supreme court rejected

Trusclair’s argument that McGowan—who nonetheless responded within twenty days—

was not prejudiced by the error and held that the defect was fatal because it failed to strictly

comply with the technical requirements of the summons set forth in Rule 4(b). Id. at 5, 306

S.W.3d at 430–31.

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Rule 12(a)(1) was amended in 2011 to require that both resident and nonresident
defendants file a response within thirty days after service of the summons and complaint.

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Accordingly, however inconsequential it may appear, the defect in this case is fatal

to the summonses under the strict-compliance standard articulated by the supreme court.

The circuit court’s order dismissing the case, therefore, is affirmed.

B. Waiver

Dr. Johnson next argues that the circuit court erred when it ruled that Schumacher

and Pope did not waive their jurisdictional arguments regarding the defective summonses

when they requested attorney’s fees in connection with their motion for a protective order.

According to Dr. Johnson, the fee request was the sort of affirmative relief that this court

has held waives deficiencies in service of process. Pope and Schumacher reply that precedent

from this court and the supreme court establish that “requesting attorneys’ fees in the context

of defending an action does not constitute a request for relief that waives service defenses.”

Because we agree that the request for attorney’s fees was not a request for affirmative relief

that waived Pope and Schumacher’s challenges to the court’s personal jurisdiction, we

affirm.

As we state above, service of valid process is necessary to give a court jurisdiction

over a defendant. See Goodson v. Bennett, 2018 Ark. App. 444, at 7, 562 S.W.3d 847, 855.

“The defense of personal jurisdiction, however, may be waived by the appearance of the

defendant without raising an objection.” Id. “This court has long recognized that any action

on the part of a defendant, except to object to jurisdiction, which recognizes the case in

court, will amount to an appearance.” Id. (internal quotation marks omitted). “In deciding

whether a defendant has waived his rights and entered an appearance, a determining factor

is whether the defendant seeks affirmative relief.” Id. (internal quotation marks omitted).

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To be clear, Pope and Schumacher objected to the defect in their summonses.

Defendants can preserve the defense of insufficiency of process by raising it in their

responsive pleadings and later moving to dismiss the case, see Wallace v. Hale, 341 Ark. 898,

900, 20 S.W.3d 392, 394 (2000), and Pope and Schumacher filed an answer and amended

answer that specifically reserved their objections alleging insufficiency of process. They also

filed motions to dismiss on that basis. But the issue here is whether the request for attorney’s

fees that they later made in connection with their motion for protective order was a request

for affirmative relief that waived these objections. We hold that it was not.

A request for affirmative relief that waives a challenge to sufficiency of process is

something “more than a defensive action” that is inconsistent with a defendant’s assertion

that the circuit court lacked personal jurisdiction over him. See Farm Bureau Mut. Ins. Co.

v. Campbell, 315 Ark. 136, 141, 865 S.W.2d 643, 645 (1993). The most obvious examples

are counterclaims, cross-claims, and third-party claims in which a defendant “invokes the

jurisdiction of the court” and thereby “submits to it.” Ark. Game and Fish Comm’n v. Lindsey,

292 Ark. 314, 317, 319, 730 S.W.2d 474, 476, 478 (1987). We have also suggested that

other requests demonstrating acquiescence to the circuit court’s jurisdiction, such as a

motion for a stay of a final divorce hearing, see Goodson, 2018 Ark. App. 444, at 8, 562

S.W.3d at 855, or a bondsman’s motion for additional time to locate a fugitive for a bond

forfeiture hearing, see Affordable Bail Bonds, Inc. v. State, 2015 Ark. App. 44, at 5, seek the

sort of affirmative relief that waives personal jurisdiction.

Our cases also make it clear, however, that motions for a protective order and

requests for attorney’s fees do not waive objections to personal jurisdiction. In Bituminous,

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Inc. v. Uerling, 270 Ark. 904, 907, 607 S.W.2d 331, 333 (1980), the supreme court held that

the defendants’ motion for protective order and attorney’s fees did not constitute a waiver

because “the relief sought was in no way inconsistent with [their] claim of improper venue.”

Likewise, in Dobbs v. Discover Bank, 2012 Ark. App. 678, at 10, 425 S.W.3d 50, 56, we held

that a defendant did not waive personal jurisdiction by including a request for attorney’s fees

in his answer, observing that “[a]n answer with boilerplate language seeking attorneys’ fees

and ‘all other relief to which [the party] may be entitled’ is not a request for affirmative

relief.”

In the case at bar, Pope and Schumacher appropriately objected to the defective

summonses by reserving a challenge in their answer and later filing a motion to dismiss.

According to Bituminous and Dobbs, their request for attorney’s fees did not waive their

challenge to the circuit court’s jurisdiction. The circuit court’s order dismissing the case,

therefore, is affirmed.

IV. Conclusion

The summonses issued in this case, which warned that a default judgment will—

rather than may—be entered if the defendants failed to appear, were fatally defective because

they failed to comply with an express requirement in Rule 4(b). Pope and Schumacher did

not waive their challenges to the defective summonses, moreover, by requesting attorney’s

fees in connection with their motion for protective order. The circuit court, therefore, did

not err by dismissing Dr. Johnson’s refiled claims.

Affirmed.

ABRAMSON and KLAPPENBACH, JJ., agree.

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Sutter & Gillham, P.L.L.C., by: Luther Oneal Sutter; and Baker & Schulze, by: J.G.

“Gerry” Schulze, for appellant.

Wright, Lindsey & Jennings LLP, by: Regina A. Young and Gary D. Marts, Jr., for

separate appellees Schumacher Group of Arkansas, Inc., and Pope Emergency Group,

LLC.

Munson, Rowlett, Moore & Boone, P.A., by: Beverly A. Rowlett, Tim Boone, and Sarah

E. Greenwood, for separate appellee Russellville Holdings, LLC, d/b/a St. Mary’s Regional

Medical Center.

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