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
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, by: Jason Campbell; and Kutak
Rock LLP, by: Mark W. Dossett and Samantha B. Leflar, for
W. GRUBER, CHIEF JUDGE
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. 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.
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 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.
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 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.
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 focus on the circuit court's application of the law
to the facts. Pulaski Choice, L.L.C. v. 2735 Villa Creek,
L.P., 2010 Ark.App. 451, at 7, 376 S.W.3d 500, 504.
the grant of summary judgment was based on the circuit
court's interpretation of various statutes. The question
of the correct application and interpretation of an Arkansas
statute is a question of law, which this court decides de
novo. Evans v. Hamby, 2011 Ark. 69, at 4, 378 S.W.3d
723, 727. It is for this court to decide what a statute
means, and we are not bound by the circuit court's
interpretation. Sw. Energy Prod. Co. v. Elkins, 2010
Ark. 481, at 5, 374 S.W.3d 678, 681. The first rule in
considering the meaning and effect of a statute is to
construe it just as it reads, giving the words their ordinary
and usually accepted meaning in common language. Miss.
River Transmission Corp. v. Weiss, 347 Ark. 543, 550, 65
S.W.3d 867, 872-73 (2002). The basic rule of statutory
construction is to give effect to the intent of the General
Assembly. Thomas v. Hall, 2012 Ark. 66, at 5, 399
S.W.3d 387, 390. Moreover, statutes relating to the same
subject should be read in a harmonious manner if possible.
Thomas v. State, 349 Ark. 447, 454, 79 S.W.3d 347,
351 (2002). In construing any statute, we place it beside
other statutes relevant to the subject matter in question and
ascribe meaning and effect to be derived from the whole.
Standridge v. State, 2014 Ark. 515, at 9, 452 S.W.3d
103, 109. Finally, we seek to reconcile statutory provisions
to make them consistent, harmonious, and sensible. Brock
v. Townsell, 2009 Ark. 224, at 9, 309 S.W.3d 179, 186.
parties do not dispute the underlying facts in this case.
Garrett's mother, Lottie White, was a resident of
Heartland Rehabilitation and Care Center from July 27 until
August 3, 2012. While a resident, Ms. White was raped. On
November 7, 2013, Ms. White-through her attorney-in-fact, Mr.
Garrett-filed a lawsuit against appellees to recover for her
injuries. Ms. White passed away on September 11, 2014, while
the lawsuit was pending. Garrett, Ms. White's only child,
was appointed executor of her estate on December 18, 2017.
Garrett did not inform counsel of Ms. White's death until
January 2018, at which time counsel filed a motion to
substitute Garrett, the executor, as the plaintiff pursuant
to Ark. R. Civ. P. 25. Appellees objected and moved to
dismiss the complaint because Ms. White's claim had
abated and had not been timely revived in accordance with
Ark. Code Ann. § 16-62-108 (Repl. 2005), which requires
the consent of the defendant to revive an action more than
one year after the plaintiff's death. Before the court
ruled on the motion, plaintiff's counsel filed a motion
to nonsuit the case, which the court granted, entering an
order of voluntary dismissal on January 25, 2018.
overview of the relevant law is necessary to understand this
case. When a plaintiff who is pursuing an action dies while
the action is pending, the plaintiff's death abates the
action. See, e.g., Ausman ex rel. Estate of
Ausman v. Hiram Shaddox Geriatric Center, 2013 Ark. 66,
at 9, 426 S.W.3d 379, 385. A cause of action that has abated
cannot be revived or continued unless it survives. Nash
v. Nash, 2019 Ark.App. 173, at 6, ___ S.W.3d ___, ___.
In addition, the burden to have the action properly revived
is on the plaintiff or other party seeking relief from the
court. Id. The parties do not dispute that Ms.
White's cause of action survived her death. The issue is
whether Garrett properly "revived" these claims.
When the claims survive the decedent's death, the
decedent's appropriate representatives or successors have
two options to pursue the claims. First, the representative
may move for an order of substitution in the abated action in
order to proceed with the prosecution of the decedent's
claims. Rule 25 of the Arkansas Rules of Civil Procedure
governs orders of substitution upon the death of a party in a
pending case. Ark. R. Civ. P. 25 (2018); see also Deaver
v. Faucon Props., Inc., 367 Ark. 288, 239 S.W.3d 525
(2006). Rule 25 is limited by Arkansas Code Annotated section
16-62-108, which does not allow an action to be revived
"without the consent of the defendant after the
expiration of one (1) year from the time when the order might
first have been made." Ark. Code Ann. § 16-62-108.
The second option is for the decedent's representative to
"commence a new action." Ark. Code Ann. §
16-56-117(c)(1). Again, this new action must be commenced
"within one (1) year after the death of the
Garrett pursued neither of these options; this is not in
dispute. He argues, however, that this case presents an
exception to those requirements because the plaintiff
nonsuited her case, which he argues entitled him to pursue an
action within one year of the nonsuit pursuant to subsection
(b) of the savings statute. That statute provides in
pertinent part as follows:
(a)(1) If any action is commenced within the time
respectively prescribed in this act, in §§
16-116-101 -- 16-116-107, in §§ 16-114-201 --
16-114-209, or in any other act, and the plaintiff therein
suffers a nonsuit, or after a verdict for him or her the
judgment is arrested, or after judgment for him or her the
judgment is reversed on appeal or writ of error, the
plaintiff may commence a ...