JIM R. NASH APPELLANT
NORMA NASH, INDIVIDUALLY AND AS TRUSTEE OF THE NORMA F. NASH LIVING TRUST; JOHN NASH, JR., INDIVIDUALLY AND FOR NORMA NASH, DECEASED, AS COTRUSTEE OF THE NORMA F. NASH LIVING TRUST, AND AS CO-ADMINISTRATOR OF THE NORMA NASH ESTATE; PAM NASH GLOVER, INDIVIDUALLY AND FOR NORMA NASH, DECEASED, AS COTRUSTEE OF THE NORMA F. NASH LIVING TRUST, AND AS CO-ADMINISTRATOR OF THE NORMA NASH ESTATE; SUSAN NASH LYLE, INDIVIDUALLY AND FOR NORMA NASH, DECEASED; PERRY NASH, INDIVIDUALLY AND FOR NORMA NASH, DECEASED; AND GAYLEN MCCLANAHAN APPELLEES
FROM THE PULASKI COUNTY CIRCUIT COURT, SECOND DIVISION [NO.
60CV-15-1789] HONORABLE CHRISTOPHER CHARLES PIAZZA, JUDGE.
Nash, pro se appellant.
Daniel IV, P.A., by: Ed Daniel IV, LLM CPA, for appellees.
Nash, a licensed attorney appearing pro se, appeals from a
jury's defense verdict on his claims for breach of
contract, specific performance, and tortious interference
with a business expectancy. Appellant argues six points for
reversal, but his primary contention is that there was no
compliance with Arkansas Rule of Civil Procedure 25 following
the death of the original defendant. We affirm.
performed legal services for his brother, John R. Nash, Sr.,
for many years. These services included representation in
administrative and regulatory matters and in the sale of a
convenience store and a warehouse, as well as attempts to
sell a liquor store owned by John R. Nash, Sr. According to
appellant, he had an oral agreement with his brother to
provide legal services on an as-needed basis and a "pay
when you can" basis. After John R. Nash, Sr., died in
April 2012, his widow, Norma Nash, informed appellant that
his services were no longer required. A small estate
proceeding was opened for John R. Nash, Sr., and appellant
filed a claim against his estate for unpaid legal work.
subsequently sued Norma in April 2015 both individually and
as trustee of the Norma Nash Living Trust (the trust).
Appellant alleged in his complaint a breach-of-contract claim
that Norma was transferring almost all her assets, including
the liquor store, to the trust as a fraudulent transfer to
defeat any claims against her husband's estate. The
complaint also asserted claims for specific performance and
tortious interference with a business expectancy. A discovery
dispute arose, and appellant filed a motion to compel and a
request for sanctions. However, Norma died on February 28,
notice of suggestion of death was filed on March 22, 2016.
Appellant filed a motion asking the circuit court to appoint
both John R. Nash, Jr., (Nash Jr.) and Pam Glover as special
administrators to represent Norma's estate and her
trust. The trust responded to the motion,
asserting that no probate proceedings had been opened and
that no one had been appointed to succeed Norma. On May 18,
2016, the circuit court entered an order holding
appellant's motions to compel and for sanctions in
abeyance and directing appellant to file a substituted
complaint to "include the proper parties to substitute
for Defendant Norma Nash, now deceased, and any other proper
parties to this action[.]" The order also stated that the
amended complaint to be filed would satisfy the requirements
of Rule 25 and other statutory requirements for revivor and
substitution of parties.
filed an amended complaint on May 27. The complaint named as
defendants Nash Jr. and Glover, individually and as
cotrustees of the trust and as coadministrators of
Norma's estate. Norma was still listed in the complaint
both individually and as trustee. The complaint incorporated
the allegations contained in the original complaint and
asserted four causes of action-breach of contract, imposition
of a constructive trust, and two counts alleging interference
with a contract and business expectancy.
24, Nash Jr. and Glover answered the amended complaint. They
denied that any personal representatives or special
administrators had been appointed for Norma's estate. On
July 26, the circuit court entered an order prepared by the
attorney for Nash Jr. and Glover dismissing appellant's
claims against Norma in her individual capacity because no
substitution had been entered within ninety days of the
suggestion of death as required by Arkansas Code Annotated
section 28-50-102 (Repl. 2012).
August 2, appellant filed a motion to vacate the dismissal
order. He alleged that the dismissal was made without a
dismissal motion having been filed. He also recited that no
probate proceedings had been initiated for Norma's
filed an amended and supplemental complaint on September 9.
Nash Jr. and Glover answered individually and as cotrustees
of Norma's trust. However, they specifically denied that
a special administrator had been appointed for Norma's
February 27, 2017, appellant filed another amended complaint
keeping the same parties named as in the first amended
complaint and adding Lyle and Perry as defendants "for
Norma Nash, deceased."
two-day jury trial was held on June 7 and 8, 2017. The jury
returned verdicts in favor of "Defendants, Norma Nash
and her substitutes and heirs" on the issues of breach
of contract, unjust enrichment, and interference with
entry of the judgment in favor of the defendants, appellant
filed a motion for new trial. The judgment was entered on
June 22. Appellant filed his notice of appeal on July 21.
When the circuit court did not rule on appellant's motion
for new trial within thirty days, he timely filed an amended
notice of appeal to include the deemed denial of his motion.
appellant's first three points are premised on whether
there has been proper substitution of parties following
Norma's death, we discuss them together. Appellant's
three points are premised on the contention that the circuit
court somehow disregarded the provisions of Arkansas Rule of
Civil Procedure 25 and allowed the appellees to improperly
delay the opening of probate proceedings for Norma in an
effort to thwart the substitution of a proper defendant
following Norma's death.
not stated as such, we believe that appellant's arguments
raise the following issues: (1) which party bears the burden
of properly reviving the action following the death of a
party; (2) whether the lack of proper substitution renders
the jury's verdict as to appellant's claims against
Norma individually a nullity; (3) who is the proper party to
substitute following Norma's death; and (4) whether the
circuit court properly dismissed the claims against Norma
substitution of a new party to proceed with the prosecution
or defense of a claim is the revivor of an action. The death
of a party to a legal proceeding, where the cause of action
survives, suspends the action as to decedent until someone is
substituted for decedent as a party." Deaver v.
Faucon Props., Inc., 367 Ark. 288, 291, 239 S.W.3d 525,
529 (2006) (quoting 1 C.J.S. Abatement and Revival
§ 155). An action cannot be revived unless the cause of
action survives. Id. At common law, most actions
grounded in contract survived the death of either party, but
those in tort did not. See McDonald v. Pettus, 337
Ark. 265, 988 S.W.2d 9 (1999); Wilson v. Young, 58
Ark. 593, 25 S.W. 870 (1894); Ward v. Blackwood, 41
Ark. 295 (1883). Thus, appellant's individual contract
claims against Norma survived her death, subject to the
claims' proper revival.
burden having the action properly revived is on the plaintiff
or other party seeking relief from the court. Speer v.
Speer, 298 Ark. 294, 766 S.W.2d 927 (1989); McDonald
v. Petty, 254 Ark. 705, 496 S.W.2d 365 (1973);
Wooley v. Planter's Cotton Oil Mill, Inc., 91
Ark.App. 213, 209 S.W.3d 409 (2005). It was appellant's
cause of action against Norma; therefore, it was up to him to
substitute new defendants in place of Norma if he wanted to
continue his action. This brings us to the question of the
proper defendant to substitute for Norma.
Rule of Civil Procedure 25(a)(1), (2) governs the procedure
for obtaining an order of revivor. It provides in pertinent
part as follows:
(a) Death. (1) If a party dies and the claim is not thereby
extinguished, the Court may order substitution of the proper
parties. The motion for substitution may be made by any party
or by the successors or representatives of the deceased
party, and such substitution may be ordered without notice or
upon such notice as the Court may require. Unless the motion
for substitution is made not later than ninety (90) days
after the death is suggested upon the record by the ...