Garrett v. Progressive Eldercare Servs. Saline, Inc.
Garrett v. Progressive Eldercare Servs. Saline, Inc.
Opinion of the Court
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.
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 *429had 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
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
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 ,
Here, 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 ,
*430Standridge v. State ,
The 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
An 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 ,
Here, 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 *431any 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 new action within one (1) year after the nonsuit suffered or judgment arrested or reversed.
....
(b) If the cause of action survives to the plaintiff's heirs or to his or her executors or administrators, they may in like manner commence a new action or take out a mandate within the time allowed the plaintiff.
Garrett argued in the circuit court, and he argues here, that a person has an absolute right to nonsuit a case and refile it pursuant to the savings statute, which process allows the plaintiff to "overcome all manner of litigation defects" in situations that would otherwise require a dismissal. He correctly acknowledges that the only prerequisite necessary for a plaintiff to claim protection from the savings statute is to file a complaint within the relevant statute of limitations and complete timely service on the defendant. See, e.g. , Rettig v. Ballard ,
We interpreted the effect of the savings statute in a similar situation in Wilson v. Lincare, Inc. ,
We disagree and hold that the savings statute does not apply to the facts of this case.
*432At that point, her case abated. Garrett is correct that her case was, in fact, nonsuited, but not by her. This fact is critical to his case. That he happened to be serving as her attorney-in-fact in her lawsuit does not change the nature of that action. The action abated before a nonsuit was taken. Thus, subsection 126(a), which allows a plaintiff who nonsuits his or her case to "commence a new action within one (1) year after the nonsuit suffered" simply is not applicable, and thus subsection 126(b), which allows a plaintiff's representatives to "in like manner commence a new action ... within the time allowed the plaintiff" when a claim survives, does not apply. Subsection 126(b) applies when the plaintiff first nonsuits her case and subsequently passes away. In that situation, there is no pending and abated lawsuit to revive. Subsection 126(b) allows the decedents' successors to essentially stand in the plaintiff's shoes for purposes of the savings statute. That is not the case here. As we stated in Lincare , when the plaintiff passes away while prosecuting the plaintiff's claims, the real party in interest must be substituted prior to the nonsuit in order to take advantage of the savings statute.
Moreover, to interpret
Accordingly, we affirm the circuit court's order dismissing Garrett's complaint with prejudice.
Affirmed.
Virden and Hixson, JJ., agree.
Appellees include 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 Earnest Johnson, in his capacity as administrator of Heartland Rehabilitation and Care Center. We refer to them herein as "appellees."
Our disposition is not intended to minimize the gravity of the underlying allegations in this case.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.