Nash v. Nash

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SECOND DIVISION [NO. 60CV-15-1789] HONORABLE CHRISTOPHER CHARLES PIAZZA, JUDGE.

          Jim R. Nash, pro se appellant.

          Ed Daniel IV, P.A., by: Ed Daniel IV, LLM CPA, for appellees.

          MIKE MURPHY, JUDGE

         Jim 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.^[1] We affirm.

         Appellant 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.

         Appellant 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, 2016.

         A 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.^[2] 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[.]"^[3] 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.

         Appellant 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.^[4]

         On June 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).

         On 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 estate.^[5]

         Appellant 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 estate.

         On 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."

         A 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 business expectancy.

         Before 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.

         Because 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.

         Although 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 individually.

         "The 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.

         The 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.

         Arkansas 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 ...