dissenting.
I respectfully dissent. The majority concludes that neither Technology Partners, Inc. v. Regions Bank, 97 Ark.App. 229, 245 S.W.3d 687 (2006), nor Hill-Rom, Co. v. Swink, 65 Ark.App. 71, 984 S.W.2d 834 (1999), is on point, but states that it is _Jj¿more persuaded by the Hill-Rom opinion and its reliance on the rule that pleadings are to be liberally construed. The majority therefore concludes that the amended complaint, filed within one year of the previous nonsuit, was sufficient to commence a “new action” under the savings statute, Arkansas Code Annotated section 16-56-126(a)(1) (Supp.2005). I disagree.
The cases cited and discussed by the majority, including Technology Partners, Hill-Rom, and this court’s opinion in West v. G.D. Searle & Co., 317 Ark. 525, 879 S.W.2d 412 (1994), are each distinguishable in some way from the facts at hand. There is a consistent thread running through the Technology Partners and West cases, however, which is in line with our long-standing precedent. That consistent thread is that a voluntary nonsuit taken in an action involving only one defendant concludes the action (unless a counterclaim has been made), and the situation is as if no suit had ever been brought. In such a situation, there is no extant complaint to amend; as a result, as the Appellee argues here, the amended complaint is a nullity, and the trial court has no jurisdiction. This principle is explained in Austin v. Austin, 241 Ark. 634, 409 S.W.2d 833 (1966), cited by Appellee:
Unless defendant has interposed a claim for affirmative relief, a voluntary nonsuit, dismissal, or discontinuance is a final termination of the action, and there remains no cause pending in which a third person may be permitted to intervene, or in which defendant may thereafter file an answer or plea. In the absence of circumstances working an es-toppel, a dismissal or nonsuit leaves the situation as though no suit had even been brought, and it has the effect of an absolute withdrawal of the claim and leaves defendant as though he had never been a party. It carries down with it previous proceedings and orders in the action, and all pleadings, both of plaintiff and defendant and all issues, with respect to plaintiffs claim.
_Ji2Austin, 241 Ark. at 638, 409 S.W.2d at 835-36 (quoting 27 C.J.S. Dismissal and Nonsuit, § 39). See also Elzea v. Perry, 340 Ark. 588, 12 S.W.3d 213 (2000).
In my view, this court’s decision in West v. G.D. Searle & Co., supra, reflects this principle. There were two appeals in West. In the first, the trial court granted summary judgment for the defendant on several claims. This court affirmed as to those claims, but modified the dismissal to reflect that it was without prejudice as the affirmance was based on the plaintiffs’ failure to state a claim on those counts (rather than on the failure to have a claim). West v. Searle & Company, 305 Ark. 33, 36-37, 806 S.W.2d 608, 610-11 (1991).
On remand, the trial court again granted summary judgment for the defendant, and again the plaintiffs appealed. This court affirmed the trial judge on those claims, but not on the merits. Rather, this court held that when the mandate issued in the first appeal, modifying the dismissal to one without prejudice, that was treated the same as a nonsuit, and the plaintiffs had one year to commence a “new action.” They failed to do so, because their new complaint was filed fourteen months after the dismissal. The plaintiffs argued, however, that their new action was merely an amendment to the original complaint and should relate back to the date of that complaint. In support of their arguments, the plaintiffs cited Southwestern Bell Telephone Co. v. Blastech, Inc., 313 Ark. 202, 852 S.W.2d 813 (1993), which involved the requirements of Rule 15(c) regarding adding new defendants to an action. We rejected this argument, stating:
Here the complaint had been dismissed without prejudice for failure to state a claim, and the [plaintiffs] had one year to commence a “new action” and state a claim. Ark. |1sCode Ann. § 16-56-126 (1987). A new action had to be filed, as distinguished from merely adding a defendant by amendment, and the new complaint was subject to the provisions of the savings statute.
West, 317 Ark. at 528, 879 S.W.2d at 413-14.
The court of appeals relied upon West in Technology Partners, Inc. v. Regions Bank, supra, stating as follows:
TPI’s lawsuit in Docket No. CV02-2845 was originally filed against Newson only. That suit was dismissed on June 17, 2002. One June 16, 2003, TPI tried to sue Regions by simply amending the complaint in the dismissed action. According to West v. G.D. Searle & Co., 317 Ark. 525, 879 S.W.2d 412 (1994), a new action was required to be filed, not simply an amended complaint adding a new defendant in the dismissed action. The 2002 dismissal therefore remained in effect for over one year, and Regions was not made a party to any valid lawsuit until January 2004. The saving statute therefore did not apply, as the trial court correctly ruled.
Technology Partners, 97 Ark.App. at 238, 245 S.W.3d at 695 (emphasis added). See also Carnathan v. Farm Bureau Ins. Co., 288 Ark. 399, 705 S.W.2d 885 (1986) (“When the judgment was entered dismissing the claim of Ms. Carnathan against the other driver, who was the only other party to the suit, the case was over” and “[t]he trial court lacked jurisdiction to do anything further in the case.” (emphasis added)).
The exception to our long-standing precedent is the Hill-Rom case, which, relying on the rule requiring the liberal construction of pleadings, concluded that the “only construction that can reasonably be given to the [plaintiffs’] ‘Amended Complaint’ pleading is to construe it as an original complaint, because it pled a cause of action that had not been pled before....” Hill-Rom, 65 Ark.App. at 74, 984 S.W.2d at 836. The dissent disagreed, concluding that the “appellant’s logic is certainly not flawed when it considers a pleading entitled ‘Amended 1 ^Complaint’ filed in an existing case with the same case number and the same plaintiff as an ‘amended complaint.’ ” Hill-Rom, 65 Ark.App. at 76, 984 S.W.2d at 836 (Crabtree, J., dissenting). In my view, both the Hillr-Rom decision and the majority’s reliance on it in the instant case are outside the parameters of our existing case law.
Although the majority relies upon the liberal-construction rule, that rule of construction is not limitless. In my view, the majority expands that rule too far in concluding here that the “amended complaint” commenced a “new action” for purposes of the savings statute after the previous non-suit. I therefore respectfully dissent.
HANNAH, C.J., and DANIELSON, J., join.