Timely but Defective Service Preserves a Claim Under the Saving Statute
The Arkansas Court of Appeals affirmed dismissal without prejudice in Clouse v. Tu, No. 07-586 (2/6/08). The opening line of the opinion states: "This case arises at the three-way intersection of a service problem, the statute of limitations, and the terms of the dismissal."
One week before the limitations period expired, Tu filed suit against Dr. Clouse. The service was defective because the complaint was served on Dr. Clouse's wife at his office. Tu did not cure the defect within 120 days. The trial court dismissed the case without prejudice, which triggered the one-year saving statute. See A.C.A. § 16-56-126(a)(1).
The court of appeals affirmed and clarified the saving statute. If the plaintiff fails to accomplish any service, the statute is not triggered. If the plaintiff makes timely but defective service, the statute is triggered.
