Full Opinion

Cite as 2026 Ark. 134 SUPREME COURT OF ARKANSAS No. CV-25-780 Opinion Delivered: October 8, 2026 JEREMY KENNEDY APPELLANT PRO SE APPEAL FROM THE WHITE COUNTY CIRCUIT COURT [NO. 73CV-25-182] V. HONORABLE GRISHAM A. WHITE COUNTY DISTRICT PHILLIPS, JUDGE COURT JUDSONIA APPELLEE APPEAL DISMISSED. COURTNEY RAE HUDSON, Associate Justice Jeremy Kennedy appeals from the dismissal without prejudice of a petition for writ of prohibition he filed in the White County Circuit Court pursuant to Arkansas Code Annotated section 16-115-102 (Repl. 2016). In the petition, Kennedy alleged that misdemeanor charges pending in the Judsonia District Court should be dismissed due to a speedy-trial violation. The White County Circuit Court dismissed the petition without prejudice because Kennedy had failed to perfect service of process within 120 days as required by Arkansas Rule of Civil Procedure 4(i) (2025). For reversal, Kennedy asserts that the circuit court erred when it found that he failed to perfect service of process within 120 days. We dismiss the appeal. A petitioner whose case is dismissed without prejudice for failure to obtain timely valid service of process may refile those claims. Taylor v. Ark. Post-Prison Transfer Bd., 2025 Ark. 176. When an underlying claim may be refiled to perfect service, the order appealed from is not a final, appealable order. Id. However, Kennedy argues on appeal that he is not required to refile his claim because he had perfected service of process, and his petition was erroneously dismissed. The circuit court concluded that Kennedy had not accomplished service of process in accordance with Rule 4. This court reviews a circuit court’s factual conclusions regarding service of process under a clearly erroneous standard. Jones v. Douglas, 2016 Ark. 166, 489 S.W.3d 648. Rule 4(a) provides, in pertinent part, that immediately upon filing a complaint, the clerk shall issue a summons, which shall be delivered to a person authorized under the Rule to accept service of process. Process is defined in Rule 4(c) as the summons and a copy of the complaint. Unless a summons that meets all the requirements of Rule 4(b) is served on the opposing party, the court fails to obtain jurisdiction over the cause. Id. In his appellate brief, Kennedy contends that he complied with Rule 4 by serving the district court by first-class mail in accordance with Rule 4(g)(1)(B) before the expiration of 120 days. The record reflects that Kennedy mailed the process to the White County District Court – Judsonia Division but did not designate a specific person to receive process. The court clerk signed an acknowledgement of receipt of the summons and complaint. The district court clerk is a public officer as described by Rule 4(f)(16). Rule 4(f)(17) states in pertinent part that public officers shall be served in accordance with Rule 4(g)(1)(A), which mandates that service must be made by certified mail, addressed to the person to be served, with a return receipt requested. In accordance with Rule 4(d)(1), “if service is made by mail the person making service shall attach a return receipt, an affidavit, and acknowledgement.” The record reveals 2 that there is no return receipt because Kennedy failed to serve the clerk by certified mail, and Kennedy’s affidavit swearing that he served the district court has not been notarized. An affidavit is generally defined as a written statement affirmed or sworn to by some person legally authorized to administer an oath or affirmation. Save Energy Reap Taxes v. Shaw, 374 Ark. 428, 288 S.W.3d 601 (2008). Here, there is no properly executed affidavit. While the court’s clerk acknowledged receipt of a summons and the petition that was mailed to the district court, a copy of the summons was not included in the record and was not provided with the affidavit affirming proof of service. Consequently, there is no evidence that the summons met the requirements of Rule 4(b). Without a summons in the record, Kennedy cannot demonstrate that a valid summons was served to establish jurisdiction despite the clerk’s acknowledgement that it was received. Jones, 2016 Ark. 166, 489 S.W.3d 648. Actual knowledge of proceedings does not validate defective process. Id. Finally, neither the district court nor its representative filed an answer to the petition, and neither responded to the appeal. Here, service of process was defective in that Kennedy failed to serve the summons and petition by certified mail with a return receipt requested, addressed to a specific person as required by the rule; failed to provide an authorized affidavit of proof of service; and failed to attach a copy of the summons with the affidavit or include the summons in the record. The circuit court did not clearly err when it dismissed the petition for writ of prohibition without prejudice on the basis of Kennedy’s failure to conform to the Rule 4 service-of-process requirements. In view of this, there is no final, appealable order. Appeal dismissed. 3 Special Justice CORY COX joins. WOMACK, J., concurs. WOOD and BRONNI, JJ., dissent. WEBB, J., not participating. SHAWN A. WOMACK, Justice, concurring. Although the circuit court was correct to dismiss Kennedy’s lawsuit against the State, it did so for the wrong reason. Instead of dismissing Kennedy’s lawsuit for failure to perfect service, the circuit court should have dismissed the claims pursuant to sovereign immunity.1 Here, Kennedy improperly made the State a defendant when he petitioned for a writ of prohibition in a new civil action below, 73CV-25-182.2 Instead, he should have petitioned in his related, underlying criminal case. Therefore, I respectfully concur in the judgment. NICHOLAS J. BRONNI, Justice, dissenting. For the reasons I previously outlined in Taylor v. Arkansas Post-Prison Transfer Board, 2025 Ark. 176, at 4 (Bronni, J., dissenting) (explaining any dismissal is a final order regardless of whether it is with or without prejudice, and if affirmed, the dismissal carries preclusive effect), I respectfully dissent. WOOD, J., joins. Jeremy Kennedy, pro se appellant. One brief only. 1 See Thurston v. League of Women Voters of Ark., 2022 Ark. 32, at 17, 639 S.W.3d 319, 327 (Womack, J., dissenting). 2 See Perry v. Payne, 2022 Ark. 112, at 5 (Womack, J., dissenting) (reasoning article 5, section 20 required the dismissal of the appeal from denial of writ of mandamus and declaratory judgment). 4