dissenting. I cannot agree stice, because it effectively creates a safe harbor for plaintiffs who fail to perfect service within 120 days without good cause, as long as they file a motion to extend the time for service of process within that 120 days.
Mrs. King filed this action in the Circuit Court of Jackson County on October 17, 1997. Pursuant to Ark. R. Civ. P. 4(i), Mrs. King was required to perfect service upon the separate defendants on or before February 17, 1998. However, Rule 4(i) authorizes the trial court, in its discretion, to grant an extension of time to achieve service of process upon a showing of good cause, if the motion to extend is made within the 120 days. The record reflects that Mrs. King filed two motions for extension of time, one on February 12, 1998, and one on February 17, 1998. These extensions were granted by the trial court without a hearing and the time for service was extended until June 14, 1998.
Of course, the defendants, appellees here, objected to these extensions of time for service, and a hearing took place on April 23, 1998, wherein the defendants challenged the extensions of time for lack of good cause. Finding that Mrs. King failed to show good cause for extending the time for service because she had not even attempted service until her deadline had nearly passed, and agreeing that he had erred in granting the motions, the trial court ruled from the bench that he was setting aside his two orders granting the extensions of time and dismissing the case. Following this pronouncement from the bench, Mrs. King proceeded (1) to file a motion for reconsideration of the trial court’s April 23, 1998 oral ruling, and (2) to perfect service of process on the separate defendants by the June 14, 1998 deadline set by the trial court in the February 17, 1998 extension order. The trial court eventually held a hearing on Mrs. King’s motion for reconsideration, but, following the hearing, once again set aside the orders granting extension of time and dismissed the case with prejudice. The order of dismissal was ultimately filed on September 15, 1998.
The majority today holds that because Mrs. Kang relied upon the orders granting the extensions of time and obtained service before the trial court filed its order on September 15, 1998, the trial court’s order of dismissal must be reversed. I cannot agree. It is not uncommon for trial courts to grant ex parte extensions of time for service. Following today’s ruling, any plaintiff who files a timely motion for extension and obtains an ex parte order can avoid proof of good cause until such time as the defendant demands a showing. Even if an ex parte order granting an extension is subsequently set aside by the trial judge, as long as the plaintiff is able to serve the defendant before the set-aside order is filed with the clerk, the service is good. We are essentially creating a race between the trial court’s filing of the order setting aside the extension and the plaintiff’s perfection of service: whoever files first wins. This holding allows plaintiff’s to avoid compliance with our rules of procedure, creating a safe harbor for parties who lack good cause for failure to serve within 120 days. I must respectfully dissent.
GLAZE, J., joins this dissent in part.