Kevin GARRETT, as Executor of the Estate of Lottie White, Deceased, Appellant
PROGRESSIVE ELDERCARE SERVICES-SALINE, INC., d/b/a Heartland Rehabilitation and Care Center; Progressive Eldercare Services, Inc.; Procare Therapy Services, LLC; JEJ Investments, LLC; Ponthie Holdings, LLC; Southern Administrative Services, LLC; CarePlus Staffing Services, LLC; John Ponthie; Ross Ponthie; Mark Thompson; and Ernest Johnson, in His Capacity as Administrator of Heartland Rehabilitation and Care Center, Appellees
[Copyrighted Material Omitted]
FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63CV-18-150],
HONORABLE GARY ARNOLD, JUDGE
Moss, PLLC, by: Matthew D. Swindle and Robert W. Francis, for
Murphy & Hopkins, Little Rock, by: Jason Campbell; and Kutak
Rock LLP, Fayetteville, by: Mark W. Dossett and Samantha B.
Leflar, for appellees.
GRUBER, Chief Judge
Garrett, as executor of his mother Lottie Whites estate
(Garrett), appeals from the circuit courts order dismissing
his lawsuit against appellees Progressive Eldercare Services
- Saline, Inc., et al. The issue on appeal is whether the
savings statute extends the limitations period for Garretts
lawsuit. Ms. White passed away while her lawsuit against
appellees was pending; the case was nonsuited; and Garrett,
as Ms. Whites executor, filed a new lawsuit. Garrett
contends that he was entitled to the benefit of Ms. Whites
nonsuit and that his subsequent refiling pursuant to the
savings statute cured the "procedural defect" of
his failure to revive the action within one year of Ms.
Whites death. We disagree with Garrett and affirm the
circuit courts order dismissing his case.
filed this lawsuit, in his capacity as the executor of Ms.
Whites estate, on February 7, 2018, alleging that his mother
had been raped while a resident of Heartland Rehabilitation
and Care Center, a nursing home owned and operated by
appellees, and requesting damages on her behalf. On February
20, 2018, appellees filed a motion to strike and dismiss the
complaint. They contended that Ms. White
had filed a lawsuit before her death seeking damages for
injuries she allegedly suffered at Heartland and had passed
away while that lawsuit was pending. They argued that her
claims abated at her death and had never been revived as
required by Rule 25 of the Arkansas Rules of Civil Procedure.
Mr. Garrett, as attorney-in-fact for Ms. White in that
lawsuit, had voluntarily dismissed her claims without
accomplishing a substitution or reviving her cause of action.
Appellees also contended that Garrett, her executor, had
failed to file a new action within one year of Ms. Whites
death as authorized by Ark. Code Ann. § 16-56-117 (Repl.
2005). They argued that the claims were therefore time barred
and must be dismissed. An affidavit of their attorney was
attached to the motion, which set forth the essential
timeline of Ms. Whites previous lawsuit and stated that
appellees did not consent to revivor of the abated claims.
They also attached pleadings and the courts order of
voluntary dismissal from Ms. Whites previous case.
responded admitting that Ms. White had previously pursued the
claims he was asserting. He claimed, however, that she had
voluntarily nonsuited those claims on January 25, 2018, and
that he had an absolute right to refile that action within
one year from the nonsuit pursuant to the savings statute,
specifically Ark. Code Ann. § 16-56-126(b).
circuit court held a hearing on appellees motion on May 2,
2018, and entered an order dismissing Garretts complaint on
May 17. The court recognized that its order was based on
pleadings, arguments of counsel, and exhibits presented.
Garrett filed this timely appeal.
Because the circuit court considered matters outside the
pleadings, we will treat the motion to dismiss as one for
summary judgment. Matsukis v. Joy,2010 Ark. 403, at
8, 377 S.W.3d 245, 250. Summary judgment is to be granted by
a circuit court only when it is clear that there are no
genuine issues of material fact to be litigated and the
moving party is entitled to judgment as a matter of law.
Sykes v. Williams,373 Ark. 236, 239-40, 283 S.W.3d
209, 213 (2008). In this case, the parties do not dispute the
essential facts. When there are no disputed facts, our review