cannot join the majority opinion in this case because of the uncertainty in the law that it creates, and therefore I dissent. The majority opinion adequately states the facts in this case. Suffice it to say that a complaint was filed against St. Bernard’s Hospital by the appellees and dismissed because of the statute of limitations. The appellees brought this case against the hospital bed manufacturer, Hill-Rom, as an amended complaint in the same case file and under the same case number. Appellant moved the trial court to dismiss the action, but the trial court denied the motion.
The majority opinion is correct in stating that the trial court could not modify its June 9, 1997, order more than ninety days after it was entered because it did not have jurisdiction. The majority then goes on to state, however, that it is treating the amended complaint as a new cause of action and a new case. In doing so, the majority opinion states that it is between the Circuit Clerk and the appellee as far as the filing fee is concerned.
Further, the majority opines that the appellant’s logic is flawed because it argues that the trial court cannot modify the order of dismissal by allowing the amended complaint because it is not really an amended complaint as designated by the appellee, but a new cause of action. In my opinion, the appellant’s logic is not flawed when it considers a pleading entitled “Amended Complaint” filed in an existing case with the same case number and the same plaintiff as an amended complaint. Further, it is not flawed logic to consider the amended complaint part of the initial proceedings when the appellee fails to argue on appeal that it was really a new cause of action against a different defendant. Perhaps if the appellant had guessed that this court was going to decide the issue on a basis not argued by the appellee, it would have argued that this case was not a new case.
The majority opinion cites Rule 8(f) in support of its decision. Rule 8(f) requires interpretation of the rules liberally so that substantial justice may be done. However, in my opinion, the majority has exceeded the scope of the rule. The rule goes to the interpretation of the pleadings and not whether there is actually a complaint filed.
In our state, there is one type of action referred to as a civil action, and it is commenced by the filing of a complaint. Ark. R. Civ. P. 3. The plaintiff must pay a filing fee to the Circuit Clerk to file the complaint. Ark. Code Ann. § 16-10-302(b) (Supp. 1997). It is only common sense to think that a new lawsuit can be initiated by filing a new cause of action and paying the required filing fee.
The Circuit Clerk should not be required to review every amended complaint to determine whether it is really a new cause of action or just an amended complaint. We should not require the Circuit Clerk to file suit to obtain the filing fees involved with a lawsuit. The Circuit Clerk is responsible to the state for the money they should have collected and remitted to the State. The Chief Fiscal Officer of the State may withhold monthly turnback funds until the funds that should have been paid are paid. Ark. Code Ann. § 16-10-309 (Supp. 1997). In essence, the State is financing the lawsuit of the plaintiffs’ in this case, and, if the majority opinion stands, for any other plaintiff that fails to pay filing fees in the same manner as we have here. I am concerned about who makes the decision of what cases the State will finance and what cases the state will not. In the most litigious society in the world, we are in fact opening the doors to an increase in the number of cases filed.
But of more concern than the filing fee is the uncertainty this case creates. Is a case dismissed when the court dismisses it or will this court make the determination that it was really a new cause of action? If it is a new lawsuit, then does the plaintiff have the right to nonsuit and refile the action within a year? What procedures are we going to follow to determine whether an amended complaint is really an amended complaint or a new complaint? More importantly, what guidance is there for the trial courts to determine if an amended complaint is really an amended complaint or a new complaint? How long can the case be dismissed and a new complaint filed in the same case number without a filing fee before we say that it is time-barred? These questions will surely be asked by the bar and others. Certainty of the law is essential to its effective operation. I do not see the decision in this case as creating anything other than confusion and uncertainty as to what is a complaint and what is required to initiate a cause of action against another.
For these reasons, I respectfully dissent.
Neal, J., joins in this dissent.