{ "id": 3557352, "name": "Kevin SHOTZMAN and Holly Shotzman v. Mike BERUMEN III, M.D.; Laura Dawkins, R.N.; Glenda Welty, R.N.; Diana Colley, R.N.; Sisters of Mercy Liability Fund; Shandra Hall, R.N.; Sisters of Mercy of the St. Louis Regional Community, Inc.; St. Edward Mercy Medical Center; and Sisters of Mercy Health System", "name_abbreviation": "Shotzman v. Berumen", "decision_date": "2005-09-15", "docket_number": "04-1180", "first_page": "215", "last_page": "234", "citations": [ { "type": "official", "cite": "363 Ark. 215" }, { "type": "parallel", "cite": "213 S.W.3d 13" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "277 Ark. 516", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1750176 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/277/0516-01" ] }, { "cite": "343 Ark. 49", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 226534 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/343/0049-01" ] }, { "cite": "347 Ark. 235", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 683262 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/347/0235-01" ] }, { "cite": "348 Ark. 591", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 74051 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/348/0591-01" ] }, { "cite": "352 Ark. 201", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1159685 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/352/0201-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-56-126", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "80 Ark. App. 316", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140706 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark-app/80/0316-01" ] }, { "cite": "346 Ark. 334", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1111297 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/346/0334-01" ] }, { "cite": "335 Ark. 209", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 862794 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "214", "parenthetical": "\"Service of process or a waiver of that service is necessary in order to satisfy the due process requirements of the United States Constitution.\"" }, { "page": "887", "parenthetical": "\"Service of process or a waiver of that service is necessary in order to satisfy the due process requirements of the United States Constitution.\"" } ], "opinion_index": 0, "case_paths": [ "/ark/335/0209-01" ] }, { "cite": "313 Ark. 274", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1914578 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/313/0274-01" ] }, { "cite": "998 F.2d 1394", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10517710 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/f2d/998/1394-01" ] }, { "cite": "806 F.2d 807", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1655877 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "810" } ], "opinion_index": 0, "case_paths": [ "/f2d/806/0807-01" ] }, { "cite": "315 Ark. 136", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1910478 ], "weight": 8, "year": 1993, "pin_cites": [ { "page": "138" }, { "page": "139" }, { "page": "140-41" } ], "opinion_index": 0, "case_paths": [ "/ark/315/0136-01" ] }, { "cite": "349 Ark. 130", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1513726 ], "weight": 5, "year": 2002, "pin_cites": [ { "page": "132" }, { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/ark/349/0130-01" ] }, { "cite": "345 Ark. Appx. 606", "category": "reporters:state", "reporter": "Ark. App'x", "year": 2001, "pin_cites": [ { "page": "611", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "333 Ark. 170", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 703809 ], "weight": 8, "year": 1998, "pin_cites": [ { "page": "176-77" } ], "opinion_index": 0, "case_paths": [ "/ark/333/0170-01" ] }, { "cite": "358 Ark. 107", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8451601 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "122-23", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/ark/358/0107-01" ] }, { "cite": "260 Ark. 563", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1616707 ], "weight": 2, "year": 1976, "pin_cites": [ { "parenthetical": "stating that when a defendant is sued under a trade name, the complaint is amendable by alleging and asserting the trae name of the individual doing business under that name where the amendment to the complaint only corrected a misnomer and did not substitute a new party" }, { "parenthetical": "stating that when a defendant is sued under a trade name, the complaint is amendable by alleging and asserting the trae name of the individual doing business under that name where the amendment to the complaint only corrected a misnomer and did not substitute a new party" } ], "opinion_index": 0, "case_paths": [ "/ark/260/0563-01" ] }, { "cite": "244 Ark. 359", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719922 ], "weight": 3, "year": 1968, "opinion_index": 0, "case_paths": [ "/ark/244/0359-01" ] }, { "cite": "301 Ark. 494", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1885515 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "500" } ], "opinion_index": 0, "case_paths": [ "/ark/301/0494-01" ] }, { "cite": "83 Ark. App. 252", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140603 ], "weight": 5, "year": 2003, "pin_cites": [ { "page": "254" }, { "page": "257" } ], "opinion_index": 0, "case_paths": [ "/ark-app/83/0252-01" ] }, { "cite": "326 Ark. 244", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 12021791 ], "weight": 2, "year": 1996, "pin_cites": [ { "parenthetical": "citing Carruth, supra, which held that the motion to dismiss for failure of service of process should have been granted where the summons was not signed by the clerk as required by Rule 4(b)" }, { "parenthetical": "citing Carruth, supra, which held that the motion to dismiss for failure of service of process should have been granted where the summons was not signed by the clerk as required by Rule 4(b)" } ], "opinion_index": 0, "case_paths": [ "/ark/326/0244-01" ] }, { "cite": "298 Ark. 461", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1889844 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/298/0461-01" ] }, { "cite": "324 Ark. 373", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 9160427 ], "weight": 4, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/324/0373-01" ] }, { "cite": "275 Ark. 61", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1753647 ], "weight": 5, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/275/0061-01" ] }, { "cite": "343 Ark. 480", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 226569 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/343/0480-01" ] }, { "cite": "353 Ark. 701", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1155487 ], "weight": 8, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/353/0701-01" ] } ], "analysis": { "cardinality": 1086, "char_count": 34742, "ocr_confidence": 0.761, "pagerank": { "raw": 1.729843795937779e-07, "percentile": 0.705212736340999 }, "sha256": "d5ac5f74ed13d97b1343ac8ff6de5d53dbfe3d88cb06d189ca422b87359f39ad", "simhash": "1:1be9b7ee60c22581", "word_count": 5824 }, "last_updated": "2023-07-14T22:29:41.293594+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Kevin SHOTZMAN and Holly Shotzman v. Mike BERUMEN III, M.D.; Laura Dawkins, R.N.; Glenda Welty, R.N.; Diana Colley, R.N.; Sisters of Mercy Liability Fund; Shandra Hall, R.N.; Sisters of Mercy of the St. Louis Regional Community, Inc.; St. Edward Mercy Medical Center; and Sisters of Mercy Health System" ], "opinions": [ { "text": "Tom Glaze, Justice.\nThis appeal arises from the dismissal with a 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\u2019 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.\nOn 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.\nOn 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 Sheriffs Office delivered a number of those summonses to St. Edward Mercy Medical Center (SEMMC or \u201cSt. Edward\u201d) 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 \u201cSisters of Mercy of the St. Louis Regional Community, Inc. d/b/a St. Edward Mercy Medical Center,\u201d 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 \u201cSisters of Mercy of the St. Louis Regional Community, Inc. d/b/a St. Edward Mercy Medical Center.\u201d Shermer made the following notation on that return: \u201cUnable 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.\u201d\nDespite 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).\nIn 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\u2019 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.\nSEMMC 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 January 8, 2004, the trial court granted SEMMC\u2019s motion to dismiss. The court noted that the rules governing service of process require strict compliance, and because the Shotzmans had not strictly complied with those rules, the court had not acquired jurisdiction over the Shotzmans\u2019 claims against SEMMC. Further, because this was the second dismissal, it was with prejudice. On February 19, 2004, the trial court entered an order granting the motion to dismiss filed by nurses Welty and Colley.\nFollowing the trial court\u2019s dismissal of the complaint against SEMMC, the Shotzmans appealed to the court of appeals. However, as there had been no order dismissing the John Doe defendants, the court of appeals held that there was no final order pursuant to Ark. R. Civ. P. 54(b) and dismissed the appeal on May 6, 2004.\nOn May 7, 2004, the Shotzmans filed a motion for reconsideration in circuit court, asking that court to reconsider three of its orders: 1) the order of January 9, 2004, dismissing SEMMC; 2) the order of September 15, 2003, dismissing Glenda Welty; and 3) the order of February 19, 2004, dismissing Welty and Diana Colley. The Shotzmans also filed a motion to amend the summons for SEMMC. The trial court denied both of these motions at a hearing held on August 24, 2004, and entered an order dismissing the John Doe defendants on August 27, 2004. From these orders, the Shotzmans have appealed.\nIn their first point on appeal, the Shotzmans argue that the summonses issued in this case complied with Ark. R. Civ. P. 4. Rule 4(b), governing the service of process, provides as follows:\nThe summons shall be styled in the name of the court and shall be dated and signed by the clerk; be under the seal of the court; contain the names of the parties; be directed to the defendant; state the name and address of the plaintiff s attorney, if any, otherwise the address of the plaintiff; and the time within which these rales require the defendant to appear, file a pleading, and defend and shall notify him that in case of his failure to do so, judgment by default may be entered against him for the relief demanded in the complaint.\nAt issue is whether the Shotzmans\u2019 summons to SEMMC \u201ccontain[ed] the names of the parties\u201d and was \u201cdirected to the defendant.\u201d\nArkansas law is long settled that service of valid process is necessary to give a court jurisdiction over a defendant. Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003); Raymond v. Raymond, 343 Ark. 480, 36 S.W.3d 733 (2001); Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982). Our case law is equally well-settled that statutory service requirements, being in derogation of common-law rights, must be strictly construed and compliance with them must be exact. See Smith, supra; Carruth v. Design Interiors, Inc., 324 Ark. 373, 921 S.W.2d 944 (1996); Wilburn v. Keenan Companies, Inc., 298 Ark. 461, 768 S.W.2d (1989). This court has held that the same reasoning applies to service requirements imposed by court rules. Carruth, supra; Wilburn, supra. Thus, the technical requirements of a summons set out in Ark. R. Civ. P. 4(b) must be also construed strictly and compliance with those requirements must be exact. Smith, supra; Thompson v. Potlatch Corp., 326 Ark. 244, 930 S.W.2d 355 (1996) (citing Carruth, supra, which held that the motion to dismiss for failure of service of process should have been granted where the summons was not signed by the clerk as required by Rule 4(b)).\nIn their brief, the Shotzmans first address the question of whether there was compliance with the third requirement of Rule 4(b), i.e., whether the summons contained the name of the parties. In this case, the challenged summons listed, among other defendants\u2019 names, a party named \u201cSisters of Mercy of the St. Louis Regional Community, Inc. d/b/a St. Edward Mercy Medical Center.\u201d Just below these names, under a heading captioned \u201cDefendant\u2019s Address\u201d was the following:\nST. EDWARD MERCY MEDICAL CENTER\n7301 Rogers Avenue\nFort Smith, Arkansas 72903\nThe Shotzmans contend that these two pieces of information, taken together, sufficiently \u201ccontained] the names of the parties,\u201d in accordance with Rule 4(b). They assert that \u201cno reasonable person could look at the summons and conclude that St. Edward Mercy Medical Center was not a party to the litigation.\u201d\nThe Shotzmans rely heavily on the case of Builder One Carpet One v. Wilkins, 83 Ark. App. 252, 128 S.W.3d 828 (2003), in support of their contention that the failure to list SEMMC as a defendant was merely a \u201cmisnomer.\u201d In Builder One Carpet One, the plaintiffs filed a complaint against \u201cBuilder One Carpet One,\u201d serving the summons and complaint on \u201cRichard Akel/Agent. . . the duly designated agent for service of process for the defendant, namely Builder One Carpet One.\u201d Builder One Carpet One, 83 Ark. App. at 254. The defendant failed to answer the complaint, and the trial court entered a default judgment against Builder One. Builder One filed a motion to set aside the default judgment, arguing that the judgment was void because the attempted service did not comply with Rule 4, and asserting that \u201cBuilder One Carpet One\u201d was not a corporation and that Richard Akel was not a registered agent for Builder One. The trial court denied the motion, and Builder One appealed.\nOn appeal, the court of appeals discussed the question of misnomer on a complaint in regard to the validity of service of process, citing May v. Bob Hankins Distributing Co., 301 Ark. 494, 785 S.W.2d 23 (1990), as follows:\nIn May, the supreme court stated that when there is some slight elaboration of a party\u2019s exact corporation name, such an error is immaterial when no separate party is actually involved. Id. (citing Meek v. U.S. Rubber Tire Co., 244 Ark. 359, 425 S.W.2d 323 (1968)). The court went on to state that a misnomer is only fatal when it is so material and substantial as to indicate a different entity or to produce doubts as to the corporation intended to be sued. Id. (citing 19 Am. Jur. 2d Corporations \u00a7 2216 (1986)); see also Winters v. Lewis, 260 Ark. 563, 542 S.W.2d 746 (1976) (stating that when a defendant is sued under a trade name, the complaint is amendable by alleging and asserting the trae name of the individual doing business under that name where the amendment to the complaint only corrected a misnomer and did not substitute a new party).\nId. at 257 (emphasis added).\nThe Shotzmans argue that the use of the name \u201cSisters of Mercy of the St. Louis Regional Community, Inc. d/b/a St. Edward Mercy Medical Center\u201d was simply a \u201cmisnomer,\u201d and that SEMMC did appear in the caption. Further, they assert that there could have been no confusion as to whether SEMMC was being sued, as its name appeared on the face of the summons, and because the complaint served with the summons made claims against SEMMC.\nHowever, the Shotzmans fail to acknowledge the import of the language from May and Builder One wherein this court and the court of appeals held that a misnomer is fatal when \u201cit is so material and substantial as to indicate a different entity or to produce doubts as to the corporation intended to be sued.\u201d In the instant case, the misnomer actually does \u201cindicate a different entity.\u201d It is undisputed that SEMMC is a corporate entity distinct from Sisters of Mercy of the St. Louis Regional Community. According to the Shotzmans\u2019 own complaint, Sisters of Mercy of the St. Louis Regional Community is a foreign corporation authorized to do business in Arkansas; its registered agent for service is the Corporation Company in Little Rock. SEMMC, on the other hand, is an Arkansas corporation located in Fort Smith, and its agent for service is also located in Fort Smith. Further, in its answer, Sisters of Mercy denied in its answer that it was \u201cdoing business in Arkansas or elsewhere as St. Edward Mercy Medical Center.\u201d Because Sisters of Mercy and SEMMC are entirely separate corporate entities, the Shotzmans\u2019 \u201cmisnomer\u201d is fatal because it was \u201cmaterial and substantial [enough] to indicate a different entity or to produce doubts as to the corporation intended to be sued.\u201d Builder One, 83 Ark. App. at 257 (citing May v. Bob Hankins Distrib., 301 Ark. at 500).\nThis conclusion is further supported by the testimony of Eileen Kradel, SEMMC\u2019s Vice President for Compliance and Patient Safety, who stated that she refused to accept the summons pertaining to the Sisters of Mercy of the St. Louis Regional Community, Inc., because she had no authority to accept service on behalf of the foreign corporation with which she had no connection. She further stated that she refused service because she did not see SEMMC as a separate defendant in the caption of the summons, and because the return that Deputy Sheriff Shermer had was for Sisters of Mercy of the St. Louis Regional Community d/b/a SEMMC.\nClearly, Sisters of Mercy and SEMMC are not the same entity, and, under May and Builder One, the Shotzmans\u2019 nomenclature on the summons \u201cindicate[d] a different entity or . . . produce[d] doubts as to the corporation intended to be sued.\u201d Builder One, 83 Ark. App. at 257. As described above, the party name contained on the summons was not St. Edward Mercy Medical Center, but Sisters of Mercy of the St. Louis Regional Community, Inc. d/b/a St. Edward Mercy Medical Center. Because these are not the same entity, SEMMC was not named on the summons.\nThe Shotzmans suggest that this court has held that not every party name need be contained on the face of the summons. Citing Nucor Corp. v. Kilman, 358 Ark. 107, 186 S.W.3d 720 (2004), they contend that this court has rejected the argument that Rule 4 requires \u201ca listing of every plaintiff and every defendant on every summons, no matter how many plaintiffs and defendants are parties to the case.\u201d However, Nucor is factually distinguishable from the present case. In Nucor, Nucor Corporation attempted to have a default judgment against it set aside, arguing that the summons directed to it was defective because it omitted the names of two other defendants. The trial court denied Nucor\u2019s motion, and Nucor appealed, asserting that the trial court erred in concluding that the default judgment was not void due to insufficiency of process and insufficiency of service of process.\nIn affirming, this court noted that the summons listed the defendants as \u201cNucor Corporation, et al.,\u201d and the complaint listed the defendants as \u201cNucor Corporation, Roderick Warren, individually, andjohn Doe.\u201d Nucor argued that the summons was deficient because it did not identify all of the defendants. This court rejected that argument, writing as follows:\nCiting [Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003)], Nucor contends that the default judgment in this case is void because the summons failed to comply exactly with Rule 4 of the Arkansas Rules of Civil Procedure. We disagree. In Moncrief, supra, the party at issue, Sidney Moncrief Pontiac, Buick, GMC Company was incorrectly identified in the summons. In this case, Nucor, the party at issue, was correctly identified in the summons. Nucor does not contend that it was incorrectly identified in the summons; rather, Nucor contends that \u201cother defendants\u201d were incorrectly identified.\nA literal interpretation of the requirement that the summons \u201ccontain the names of the parties\u201d would require a listing of every plaintiff and every defendant on every summons, no matter how many plaintiffs and defendants are parties to the case. We reject this interpretation of Rule 4(b). Nucor, the party at issue, was correctly identified in the summons. In no way did the form of the summons fail to apprise Nucor of the pendency of the suit and afford it an opportunity to be heard. Indeed, Nucor makes no such argument. We hold that the summons was not fatally defective.\nNucor, 358 Ark. at 122-23 (emphasis added).\nHere, unlike the situation in Nucor, the party at issue, SEMMC, was not correctly identified on the summons. This court has been consistent in holding that the technical requirements of Rule 4(b) must be construed strictly, and compliance with those requirements must be exact. See Smith v. Sidney Moncrief, supra; Thompson v. Potlatch Corp., supra. The reason for this rule is that service of valid process is necessary to give a court jurisdiction over a defendant. Tucker v. Johnson, supra (overruled on other grounds by Southern Transit Co. v. Collums, 333 Ark. 170, 966 S.W.2d 906 (1998)). The purpose of the summons is to apprise a defendant that a suit is pending against him and afford him an opportunity to be heard. Id. Without valid service of process, the trial court never acquired jurisdiction over SEMMC; therefore, the trial court did not err in granting SEMMC\u2019s motion to dismiss.\nThe Shotzmans raise an additional argument, wherein they suggest that they complied with the fourth requirement of Rule 4(b), namely, that the summons be \u201cdirected to\u201d the defendant. The Shotzmans assert that there is no requirement that SEMMC\u2019s name be contained after the language on the summons that says \u201cTHE STATE OF ARKANSAS TO DEFENDANT(S),\u201d contending that Rule 4 only requires that the summons be \u201cdirected to\u201d the defendant. Because SEMMC was listed under the heading \u201cDefendant\u2019s address,\u201d the Shotzmans urge, they sufficiently complied with the rule. In essence, they urge that \u201cto direct to\u201d is the same as \u201cto include an address for.\u201d\nThe Shotzmans state that \u201cno rule requires that the name of the defendant follow that language or even that that explicit language appears in the summons at all.\u201d However, this argument is contradicted by this court\u2019s adoption of the Official Form of Summons on May 24, 2001, wherein the court provided that the form was \u201cadopted . . .for use in all cases in which personal service is to be had pursuant to Rule 4(c), (d), and (e) of the Arkansas Rules of Civil Procedure.\u201d In re Implementation of Amend. 80: Amendments to Rules of Civ. Proc., 345 Ark. Appx. 606, 611 (2001) (emphasis added). The language of the official form includes the phrase \u201cTHE STATE OF ARKANSAS TO DEFENDANT:_.\u201d We are unwilling to conclude that this phrase is nothing more than surplus verbiage, or that it is unnecessary for a plaintiff to fill in the blank to identify the defendant.\nFinally, the Shotzmans point out that there was \u201csome dispute as to the return.\u201d They concede that the record \u201cdoes not contain a return of service with the name \u2018St. Edward Mercy Medical Center\u2019 on it,\u201d and that the return with the summons that was purportedly directed to SEMMC had the name of the Sisters of Mercy of the St. Louis Regional Community, Inc. on it. However, they assert that these defects were not fatal because: 1) it was a misnomer, and the right entity was served; and 2) Rule 4(i) does not mandate dismissal for failure to file a return of service. As to their first argument, it suffices to repeat that it is clear that their mistake in naming the defendant was not merely a misnomer, and the \u201cright entity\u201d was not served. And as for the second, the dismissal was not simply for the failure to file a return; it was for the failure to effect proper service at all. Thus, there is no merit to any of the Shotzmans\u2019 arguments.\nIn their second point on appeal, the Shotzmans argue that, even if there had not been good service on SEMMC, the hospital waived the issue in its answer. They contend that Arkansas is a fact-pleading state, and as such, their mere assertion of an objection to sufficiency of process and service of process is insufficient to raise and preserve the issue. Here, they rely on Southern Transit Co. v. Collums, 333 Ark. 170, 966 S.W.2d 906 (1998), and Higgins v. Burnett, 349 Ark. 130, 76 S.W.3d 893 (2002), to argue that SEMMC did not sufficiently raise the defense of insufficiency of process.\nRule 12(b) of the Arkansas Rules of Civil Procedure provides that every defense to a claim for relief in any pleading shall be asserted in the responsive pleading thereto, except that the following (among others) may, at the option of the pleader, be made by motion: lack ofjurisdiction over the person, Ark. R. Civ. P. 12(b)(2); insufficiency of process, Rule 12(b)(4); and insufficiency of service of process, Rule 12(b)(5). Rule 12(h) governs the waiver or presentation of certain defenses, and provides in relevant part as follows:\nA defense of lack ofjurisdiction over the person ..., insufficiency of process, [or] insufficiency of service of process.. .is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in the original responsive pleading.\nArk. R. Civ. P. 12(h)(1). This court has held that, when a party elects the option of asserting the defense of insufficiency of process and insufficiency of service of process in its original responsive pleading, it has preserved those defenses under Rule 12(h). See Farm Bureau Mut. Ins. Co. v. Campbell, 315 Ark. 136, 865 S.W.2d 643 (1993).\nIn the present appeal, the Shotzmans argue that SEMMC should have pointed out specifically the manner in which they failed to satisfy the requirements of the service provisions of Rule 4. Here, they cite and rely on Wright & Miller, Federal Practice and Procedure: Civil 2d \u00a7 1353 (1990), as well as two federal cases: Photolab Corp. v. Simplex Specialty Co., 806 F.2d 807 (8th Cir. 1986), and O\u2019Brien v. R.J. O\u2019Brien & Associates, Inc., 998 F.2d 1394 (7th Cir. 1993). In Photolab, the Eighth Circuit held that the objection to insufficiency of process \u201cmust be specific and must point out in what manner the plaintiff has failed to satisfy the requirements of the service provision utilized.\u201d Photolab, 806 F.2d at 810.\nHowever, there is no reported Arkansas case that promulgates such a requirement. While it is true that this court has held that the \u201cmere denial of a factual allegation is not equivalent to stating facts sufficient to support a legal defense,\u201d see Higgins, 349 Ark. at 132, that case presents significantly different facts from those in the instant case. In Higgins, the defendant, Burnett, filed an answer that simply denied each paragraph of the complaint; the answer raised no affirmative defenses, and did not reserve the right to plead further. Id. at 131. Fourteen months later, Burnett moved to dismiss on the grounds that venue was improper. The trial court granted the motion, but this court reversed and remanded, holding that the trial court erred in addressing a defense asserted by Burnett that had been waived under Rule 12, stating that, \u201c[b]ecause [Burnett] did not raise [his] valid defense of improper venue in the answer, or by motion filed prior to or simultaneously with the answer, we hold that the defense was waived.\u201d Id. Further, this court rejected Burnett\u2019s argument that he raised the defense by denying, in his answer, the plaintiff s factual allegation that venue was proper in Faulkner County.\nA similar result was reached in Southern Transit Co. v. Collums, supra. In that case, the plaintiff, Collums, mailed a copy of the complaint and summons to Southern Transit\u2019s agent for service, but the summons was improperly directed to another defendant, Bruce Peek. After Collums sought a default judgment against it, Southern Transit filed an answer, arguing for the first time that the default judgment should not be granted because the summons was improperly directed to Peek, instead of Southern Transit. The trial court granted the default judgment, and Southern Transit appealed.\nOn appeal, this court held that Southern Transit would have prevailed on its failure-of-service argument, because Collums had not strictly complied with the technical requirements of Rule 4. However, the court concluded that Southern Transit had waived the defense by failing to raise the argument in either the answer or a motion filed simultaneously with the answer. Southern Transit argued that it raised the defense in its answer when it denied Collums\u2019s assertions in the complaint that the court had jurisdiction over the parties, but this court, as in Higgins, rejected that argument, writing as follows:\nSimilar to this case, in Kolb v. Morgan, 313 Ark. 274, 854 S.W.2d 719 (1993), the defendants argued that they had preserved their legal challenge to the issuance of attorney\u2019s fees by generally denying the paragraph of the complaint that contained an allegation that the plaintiff was entitled to attorney\u2019s fees. We explained that \u201c[a] denial of a material allegation is generally thought to be a denial of [a] material factual allegation, see ARCP Rule 8 (b), while avoidance of a claim because of operation of law is generally thought to require the filing of an affirmative defense, see ARCP Rule 8(c).\u201d Id... . Kolb ... clearly established that the mere denial of a factual allegation is not equivalent to stating facts sufficient to support a legal defense.\n... Southern Transit cites Farm Bureau Mutual Ins. Co. v. Campbell, 315 Ark. 136, 865 S.W.2d 643 (1993), in support of its contention that such a general denial contained in the answer is sufficient. This argument, however, is misplaced because in Campbell, supra, Farm Bureau asserted the insufficiency-of-process defense in a separate paragraph of its answer, instead of making a general denial of personal jurisdiction as in this case.\nSouthern Transit, 333 Ark. at 176-77.\nIn Farm Bureau, the Campbells filed a complaint against Farm Bureau, but failed to serve the insurer, instead mailing only a \u201ccourtesy copy\u201d of their complaint, without summons, to Farm Bureau\u2019s attorney. Farm Bureau filed an answer denying the allegations in the complaint, \u201cbut at the same time, reserved its objection to the court\u2019s lack of jurisdiction and the Campbells\u2019 insufficient service of process.\u201d Farm Bureau, 315 Ark. at 138. Farm Bureau subsequently filed a motion to dismiss for failure to serve a summons within 120 days, and the trial court granted the motion, noting that Farm Bureau had specifically raised that particular ground for dismissal in its answer to the complaint. Id. at 139. This court affirmed the trial court\u2019s dismissal, agreeing that Farm Bureau had specifically preserved its objection to the sufficiency of service of process in its answer. Id. at 140-41.\nAs mentioned above, SEMMC\u2019s answer to the Shotzmans\u2019 complaint specifically raised the defenses of insufficiency of process and service of process. These objections raised by SEMMC in this case are identical to those raised \u2014 and found acceptable \u2014 in the Farm Bureau case. As such, SEMMC did not waive its 12(b)(4) and (5) defenses.\nThe Shotzmans next argue that the trial court erred in denying their motion to amend the summonses. After the trial court dismissed the complaint against SEMMC, the Shotzmans filed a motion to amend the summons on May 7, 2004. In that motion, they suggested that amending the summons would not prejudice the substantial rights of SEMMC, and they attached a proposed summons to SEMMC that comported with the Official Form of Summons promulgated by this court in 2001. The trial court denied their motion, and on appeal, the Shotzmans argue that this decision was an abuse of the trial court\u2019s discretion.\nRule 4(h) provides that a trial court may, in its discretion, permit a party to amend the summons at any time \u201cunless it clearly appears that material prejudice would result to the substantial rights of the party against whom the summons is issued.\u201d Ark. R. Civ. P. 4(h). The Shotzmans contend that the trial court abused its discretion in denying their motion, because SEMMC can show no prejudice arising from the proposed amendment of the summons.\nHowever, at the time the Shotzmans filed their motion to amend summons, they still had not obtained valid service on SEMMC. Service of valid process is necessary to give a trial court jurisdiction over a defendant. See Nucor, supra; see also Southeast Foods, Inc. v. Keener, 335 Ark. 209, 214, 979 S.W.2d 885, 887 (1998) (\u201cService of process or a waiver of that service is necessary in order to satisfy the due process requirements of the United States Constitution.\u201d). Therefore, the trial court did not have jurisdiction to entertain the Shotzmans\u2019 motion to amend the summons intended for SEMMC, and so did not abuse its discretion in denying the motion. See Kangas v. Neely, 346 Ark. 334, 57 S.W.3d 694 (2001); Holland v. Lefler, 80 Ark. App. 316, 95 S.W.3d 815 (2003).\nIn their fourth point on appeal, the Shotzmans argue that the trial court erred in dismissing nurse defendants Welty and Colley, because the savings statute should have applied. They advance two arguments in support of this point: 1) the trial court\u2019s order granting their Rule 41 motion to nonsuit was not a final order under Ark. R. Civ. P. 54(b); and 2) the court erred in agreeing with the nurses\u2019 argument that the first amended complaint, filed on December 29, 2003, operated as an abandonment of the Shotzmans\u2019 claims against the nurses.\nWith respect to the first subpoint, the Shotzmans assert that the issue is when their nonsuit was suffered. The original complaint in this case was filed on December 4, 2000; the Shotzmans filed a motion for nonsuit as to defendant Welty, and that motion was granted on July 31, 2001. In addition, the Shotzmans later filed a motion to dismiss without prejudice the suit against the remaining defendants, including Colley, and that motion was granted on July 22, 2002. The Shotzmans refiled their suit against all defendants, including both Welty and Colley, on April 16, 2003. Welty filed a motion to dismiss the complaint as to her; the trial court granted the motion on September 15, 2003, finding that the Shotzmans\u2019 refiling of the complaint on April 16, 2003, was more than one year after the Shotzmans nonsuited their complaint regarding 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.\nOn appeal, the Shotzmans note that, under Ark. Code Ann. \u00a7 16-56-126 (1987), a plaintiff who has filed a timely action and suffered a nonsuit may refile within one year. The question, they submit, is when the nonsuit is suffered. The Shotzmans argue that the nonsuit 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.\nThe 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 \u00a7 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\u2019n v. Greene County, 343 Ark. 49, 32 S.W.3d 470 (2000).\nIn 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 nonsuit. Here, they state simply that the \u201cfirst amended complaint is not a nonsuit,\u201d and that there is no order granting a nonsuit to Welty and Colley. Again, however, the Shotzmans cite no authority in support of this argument. Therefore, we do not consider it.\nFinally, the Shotzmans raise a fifth point on appeal wherein they urge this court to abandon its strict construction of the language of a summons \u201cwhen there is no issue of a default judgment or substituted service.\u201d They note that the purpose of the Rules of Civil Procedure is to \u201csecure the just, speedy, and inexpensive determination of every action,\u201d see Ark. R. Civ. P. 1, and further point out that Ark. R. Civ. P. 61 provides that the courts \u201cmust disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.\u201d They maintain that this court\u2019s requirement of strict technical compliance with Rule 4 is \u201carchaic,\u201d 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 \u201csubstantial compliance\u201d with the service requirements of Rule 4.\nThese 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\u2019 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 \u201caffect the substantial rights of the parties.\u201d 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\u2019s substantial rights have not been affected when that party is being haled into a court that has no jurisdiction over him or her.\nBut for the erstwhile examples of Parker and Tucker, this court has never wavered in its determination that the rules governing service must be construed and followed strictly. We will not do so now.\nAffirmed.\nThe court also granted the motion for summary judgment filed by Sisters of Mercy Health System, Inc., finding that Sisters of Mercy Health System was nothing more than the parent corporation of SEMMC. As the Shotzmans presented no proof that would support a finding that Sisters of Mercy Health System and SEMMC were engaged in ajoint venture, the court concluded that summary judgment for Sisters of Mercy was appropriate.\nThe Official Form was adopted on May 24,2001, and was effective on July 1, 2001.", "type": "majority", "author": "Tom Glaze, Justice." } ], "attorneys": [ "Haskins & Gregan, by: Jacquelyn C. Gregan; and Eubanks, Baker & Schulze, for appellants.", "Wright, Lindsey & Jennings LLP, by: Edwin L. Lowther, Jr.; and Thompson & Llewellyn, P.A., for appellees St. Edward Mercy Medical Center, Glenda Welty, R.N. and Diana Colley, R.N." ], "corrections": "", "head_matter": "Kevin SHOTZMAN and Holly Shotzman v. Mike BERUMEN III, M.D.; Laura Dawkins, R.N.; Glenda Welty, R.N.; Diana Colley, R.N.; Sisters of Mercy Liability Fund; Shandra Hall, R.N.; Sisters of Mercy of the St. Louis Regional Community, Inc.; St. Edward Mercy Medical Center; and Sisters of Mercy Health System\n04-1180\n213 S.W.3d 13\nSupreme Court of Arkansas\nOpinion delivered September 15, 2005\nHaskins & Gregan, by: Jacquelyn C. Gregan; and Eubanks, Baker & Schulze, for appellants.\nWright, Lindsey & Jennings LLP, by: Edwin L. Lowther, Jr.; and Thompson & Llewellyn, P.A., for appellees St. Edward Mercy Medical Center, Glenda Welty, R.N. and Diana Colley, R.N." }, "file_name": "0215-01", "first_page_order": 239, "last_page_order": 258 }