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Motley v. Sifford

Court of Appeals of Arkansas, Division II

March 14, 2018

CURTIS MOTLEY, JR., AS SPECIAL ADMINISTRATOR OF THE ESTATE OF LAURA MOTLEY, DECEASED APPELLANT
v.
MICHAEL SIFFORD, M.D. APPELLEE

         APPEAL FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, WESTERN DISTRICT [NO. 16JCV-16-26] HONORABLE PAMELA HONEYCUTT, JUDGE

          Don R. Etherly, for appellant.

          Womack Phelps Puryear Mayfield & McNeil, P.A., by: Jeffrey W. Puryear and Ryan M. Wilson, for appellee.

          DAVID M. GLOVER, Judge

         Curtis Motley, Jr., appeals from the trial court's dismissal with prejudice of his complaint against Dr. Michael Sifford, alleging medical malpractice in the death of his mother, Laura Motley. We find no error and affirm.

         The essential facts of this case are undisputed. Laura Motley died on September 17, 2012. On August 29, 2014, Curtis Motley, Sr., her husband and special administrator of her estate, filed suit against Dr. Sifford within the two-year statute of limitations; however, Curtis, Sr., died on November 29, 2014, before Dr. Sifford was served with the complaint on December 14, 2014. Although an amended complaint was filed on February 5, 2015, it merely changed the name of the plaintiff in the case from Curtis, Sr., to Curtis, Jr., as special administrator of Laura's estate. No order of substitution or revivor was entered in the case. Dr. Sifford moved to strike the amended complaint and to dismiss it for failure to revive the action, which also rendered service of the complaint defective. Curtis, Jr., then moved to substitute himself as the plaintiff in the action. Following a hearing, the trial court entered its July 8, 2015 order dismissing the complaint without prejudice, but it did not order the substitution of Curtis, Jr. No appeal was taken.

         On January 13, 2016, Curtis, Jr., refiled the action as special administrator of his mother's estate. Dr. Sifford was served on September 2, 2016, and again moved to dismiss, contending the action had not been properly revived, it was barred by the statute of limitations, and service was defective. Following a hearing, the trial court entered its April 28, 2017 order, dismissing the complaint with prejudice. This appeal followed.

         For his sole point of appeal, Curtis, Jr., contends the trial court erred in granting Dr. Sifford's motion to dismiss the amended complaint with prejudice. We disagree.

         To put the current case in context, in dismissing the original complaint without prejudice, the trial court explained in its July 2, 2015 letter opinion:

The facts impacting these motions are straightforward. Separate Defendant maintains that the Special Administrator, Curtis Motley, died after filing the Complaint (on August 29, 2014) but before achieving service on Separate Defendant (on December 15, 2014). Separate Defendant argues as follows: (a) the lawsuit abated when Curtis Motley died, necessitating a revivor which has yet to occur; (b) service occurring after the death of Curtis Motley is void which warrants dismissal; and (c) all pleadings filed after the death of Curtis Motley should be stricken. Separate Defendant contends that the dismissal should be with prejudice. Plaintiff opposes such and argues that dismissal is not warranted.

         The trial court concluded that the death of Curtis, Sr., rendered service of the lawsuit defective but did not deprive the plaintiff of the savings statute; the trial court specifically found "that the service in this case was timely completed, but was ultimately defective due to the death of the special administrator." In accordance with that reasoning, the court granted Dr. Sifford's motion to dismiss but did so without prejudice. As acknowledged by Curtis, Jr., however, neither the letter opinion nor the order dismissing without prejudice specifically says anything about substituting Curtis, Jr., as special administrator for Curtis, Sr.

         Coming forward, the April 28, 2017 order of dismissal clearly sets forth the trial court's rationale for dismissing the case with prejudice:

1. The original suit filed by Curtis Motley, as Special Administrator of the Estate of Laura Motley, deceased, Craighead County Circuit Court, No. CV-14-433, was never properly revived following the death of Curtis Motley, Sr.
2. The applicable statute of limitations for this medical malpractice claim is two (2) years, according to Ark. Code Ann. ยง 16-114-203. This lawsuit was filed by Curtis Motley, Jr. more than two (2) years following the death of Laura Motley; ...

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