Cite as 2022 Ark. App. 169

ARKANSAS COURT OF APPEALS

DIVISION I

No. CV-21-343

HOWARD FRIDAY

APPELLANT

V.

MCSA, LLC, D/B/A MEDICAL 

CENTER OF SOUTH ARKANSAS; 

RODERICK BOYD; AND LOCUM 

LEADERS, LLC

APPELLEES

Opinion Delivered April 20, 2022

APPEAL FROM THE UNION

COUNTY CIRCUIT COURT 

[NO. 70CV-14-226]

HONORABLE SPENCER G.

SINGLETON, JUDGE

AFFIRMED

RAYMOND R. ABRAMSON, Judge

Howard Friday appeals the Union County Circuit Court order dismissing his 

complaint against MCSA, LLC, d/b/a Medical Center of South Arkansas (MCSA); Dr. 

Roderick Boyd; and Locum Leaders, LLC (Locum Leaders). On appeal, Friday argues that 

the circuit court erred by finding that he did not properly commence a new action pursuant 

to the savings statute. We affirm. 

On July 31, 2014, Friday filed a medical-malpractice complaint against MCSA and 

Dr. Boyd. The allegations in the complaint arose from the medical procedure performed on 

Friday by Dr. Boyd on August 5, 2012. On January 10, 2020, Friday moved for a voluntary 

nonsuit, and on January 15, the court dismissed the complaint without prejudice. 
2

On January 14, 2021, Friday filed another complaint in the same case number as the 

original complaint and did not pay a filing fee. Friday again asserted claims against MCSA 

and Dr. Boyd, and he added a new party, Locum Leaders. The civil cover sheet shows that 

Friday checked the box to “[r]e-open” the case, and the original case number is listed on the 

new pleading.

On February 24, MCSA moved to dismiss Friday’s complaint, arguing that Friday had 

failed to properly commence the new action pursuant to the savings statute because he filed 

the complaint in the original case number and did not pay a filing fee. MCSA cited our 

decision in Burnham v. Price, 2018 Ark. App. 410, 558 S.W.3d 402. On February 25, Locum 

Leaders moved to dismiss, and on March 1, Dr. Boyd moved to dismiss. They asserted the 

same argument as MCSA and cited Burnham. 

On May 20, the circuit court entered an order dismissing Friday’s complaint with 

prejudice. The court’s order states as follows: 

Having now reviewed the Motions and the Response in detail and having reviewed 

the relevant rules, statutes, and case law, it is not necessary to conduct a hearing in 

this matter. 

For the reasons stated in the Motions to Dismiss and applying the relevant 

authority, see Ark. Code Ann. § 16-56-126; Ark. R. Civ. P. 3(c); Tucker v. Sullivant, 

2010 Ark. 170; Burnham v. Price, 2018 Ark. App. 410, the Motions are GRANTED 

and this matter is DISMISSED WITH PREJUDICE. 

Friday has appealed the dismissal to this court.

On appeal, Friday argues that the circuit court erred by dismissing his complaint 

because he properly commenced a new action pursuant to the savings statute. He asserts that 
3

this court should overrule our decision in Burnham and adopt a more liberal view consistent 

with the supreme court’s decision in Tucker v. Sullivant, 2010 Ark. 170, 370 S.W.3d 812. 

Friday further claims that the circuit clerk had the responsibility to properly file his 

complaint and that he should not suffer for the clerk’s error. 

When a complaint is dismissed on a question of law, this court conducts a de novo 

review. Dollarway Patrons for Better Schs. v. Morehead, 2010 Ark. 133, 361 S.W.3d 274.

The savings statute provides in pertinent part:

(a)(1) If any action is commenced within the time respectively prescribed in this 

act, in §§ 16-116-101 – 16-116-107, in §§ 16-114-201 – 16-114-209, or in any other 

act, and the plaintiff therein suffers a nonsuit, or after a verdict for him or her the 

judgment is arrested, or after judgment for him or her the judgment is reversed on 

appeal or writ of error, the plaintiff may commence a new action within one (1) year 

after the nonsuit suffered or judgment arrested or reversed.

. . . . 

(2)(B) Otherwise, the cause shall be forever barred. 

Ark. Code Ann. § 16-56-126 (Repl. 2005). In Sullivant, the supreme court reversed the circuit 

court’s dismissal of the appellants’ complaint filed pursuant to the savings statute. Sullivant, 

2010 Ark. 170, 370 S.W.3d 812. The circuit court dismissed the complaint because the 

plaintiffs filed an amended complaint in the existing case number and paid only a reopening 

fee as opposed to a filing fee. Id. The supreme court reasoned that “[i]f we were to accept 

[the] argument that the timely filings of Appellants’ ‘amended’ complaint did not satisfy the 

commencement requirement of the savings statute, we would be exalting form over 

substance and violating the stated purpose of the saving statute.” Id. at 9, 370 S.W.3d at 817. 
4

Following the Sullivant decision, in 2011, Rule 3 of our rules of civil procedure was 

amended to provide in pertinent part: “(c) The clerk shall assign a new case number and 

charge a new filing fee for the filing of any case that is refiled after having been dismissed.” 

In 2018, this court addressed the Rule 3 amendment and its effect on Sullivant in Burnham 

v. Price, 2018 Ark. App. 410, 558 S.W.3d 402. 

Burnham presented the same circumstances found in Sullivant. Specifically, the circuit 

court dismissed the appellant’s petition filed pursuant to the savings statute because the 

appellant had filed the petition in the same case number as the original petition. Burnham, 

2018 Ark. App. 410, 558 S.W.3d 402. We held that under the amended Rule 3, a new case 

number is mandatory in a case that is refiled after having been dismissed. Id. We recognized 

that we had no authority to overrule the supreme court’s decision in Sullivant. Id. However, 

given that Rule 3 had been amended following Sullivant, we concluded that “[t]he amended 

Rule 3 effectively overrules [Sullivant] and controls our decision.” Id. at 4, 558 S.W.3d at 404. 

We thus affirmed the circuit court’s dismissal of the appellant’s petition with prejudice. Id.

We find the circumstances here the same as in Burnham, and we decline to depart 

from that decision. As to Friday’s arguments blaming the circuit clerk, we point out that 

Friday provided the originalcase number in the new pleading. Further, we have long assigned 

the responsibility for properly filing pleadings to the filing party rather than to the clerk. 

Accordingly, we affirm the circuit court’s dismissal of Friday’s complaint. 

Affirmed. 

HARRISON, C.J., and GRUBER, J., agree.
5

F. Mattison Thomas III, for appellant.

Anderson, Murphy & Hopkins, L.L.P., by; Mark D. Wankum and Brandon D. Cole, for 

separate appellee Roderick M. Boyd, M.D.

Munson Rowlett Moore & Boone P.A., by: Tim Boone and Zachary Hill, for separate 

appellee MCSA, LLC, d/b/a Medical Center of South Arkansas.