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Garrett v. Progressive Eldercare Services-Saline, Inc.

Court of Appeals of Arkansas, Division II

April 10, 2019

Kevin GARRETT, as Executor of the Estate of Lottie White, Deceased, Appellant
v.
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

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[Copyrighted Material Omitted]

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          APPEAL FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63CV-18-150], HONORABLE GARY ARNOLD, JUDGE

         Reddick Moss, PLLC, by: Matthew D. Swindle and Robert W. Francis, for appellant.

         Anderson, Murphy & Hopkins, Little Rock, by: Jason Campbell; and Kutak Rock LLP, Fayetteville, by: Mark W. Dossett and Samantha B. Leflar, for appellees.

          OPINION

         RITA W. GRUBER, Chief Judge

          Kevin Garrett, as executor of his mother Lottie White’s estate (Garrett), appeals from the circuit court’s order dismissing his lawsuit against appellees Progressive Eldercare Services - Saline, Inc., et al.[1] The issue on appeal is whether the savings statute extends the limitations period for Garrett’s lawsuit. Ms. White passed away while her lawsuit against appellees was pending; the case was nonsuited; and Garrett, as Ms. White’s executor, filed a new lawsuit. Garrett contends that he was entitled to the benefit of Ms. White’s 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. White’s death. We disagree with Garrett and affirm the circuit court’s order dismissing his case.

         Garrett filed this lawsuit, in his capacity as the executor of Ms. White’s 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

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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. White’s 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. White’s previous lawsuit and stated that appellees did not consent to revivor of the abated claims. They also attached pleadings and the court’s order of voluntary dismissal from Ms. White’s previous case.

         Garrett 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).

          The circuit court held a hearing on appellees’ motion on May 2, 2018, and entered an order dismissing Garrett’s 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 must ...


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