Ausman ex rel. Estate of Ausman v. Hiram Shaddox Geriatric Center

2013 Ark. 66, 426 S.W.3d 379, 2013 WL 636202, 2013 Ark. LEXIS 82
CourtSupreme Court of Arkansas
DecidedFebruary 21, 2013
DocketNo. 12-183
StatusPublished
Cited by4 cases

This text of 2013 Ark. 66 (Ausman ex rel. Estate of Ausman v. Hiram Shaddox Geriatric Center) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ausman ex rel. Estate of Ausman v. Hiram Shaddox Geriatric Center, 2013 Ark. 66, 426 S.W.3d 379, 2013 WL 636202, 2013 Ark. LEXIS 82 (Ark. 2013).

Opinion

DONALD L. CORBIN, Justice.

|! Appellant Diane Koniecki Ausman, on behalf of the Estate of Daniel Herman Ausman, deceased (the Estate), appeals the order of the Baxter County Circuit Court dismissing with prejudice its complaint against Appellee Hiram Shaddox Geriatric Center. On appeal, the Estate argues that it was error to dismiss its complaint because Ark. R. Civ. P. 25 (2012) simply required an administrator to be substituted within ninety days after a death is suggested upon the record. As this case presents an issue of first impression, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1 — 2(b)(1) (2012). We find no error and affirm.

This case stems from the death of Daniel Herman Ausman, who was a patient at Hiram Shaddox from August 22, 2007, until the time of his death on August 25, 2007. Originally, Mrs. Ausman, acting individually and on behalf of Mr. Ausman’s estate, filed a complaint Ragainst Hiram Shaddox and Dr. Tim Paden on August 24, 2009.1 Therein, Ausman sought damages based on the following causes of action: medical negligence, negligence, gross negligence, violations of the Arkansas Long Term Care Resident’s Right Act, and civil liability for conduct constituting felony neglect of an endangered or impaired adult.

Shortly after the suit was filed, on December 16, 2009, Mrs. Ausman passed away. The attorneys representing Mrs. Ausman did not learn of her death until May 2011, when they attempted to contact her to discuss the upcoming trial. As a result, counsel for Mrs. Ausman filed a motion for continuance, stating that trial was scheduled to begin on July 11, 2011, and time was needed to address estate issues resulting from Mrs. Ausman’s passing.

On July 7, 2011, Hiram Shaddox filed a motion to strike Mrs. Ausman’s complaint for failure to revive it pursuant to the revivor statutes codified at Ark.Code Ann. §§ 16-62-108 to -109 (Repl.2005). Hiram Shaddox argued therein that Mrs. Aus-man’s counsel was required to comply with the dictates of section 16-62-108 and Rule 25, governing the substitution of parties, and because they failed to do so, the complaint should be struck and an order dismissing Hiram Shaddox entered. Hiram Shaddox based its argument on the one-year limitation found in section 16-62-108. Counsel for Mrs. Ausman replied, arguing that section 16-62-108 had been superseded by Rule 25 and, as such, an order substituting one of Mrs. Ausman’s heirs, within ninety days from the date of suggestion of death upon the record, was sufficient to revive the claim.

| ¡¡Thereafter, on July 22, 2011, a suggestion of death upon the record and a motion to substitute James A. Klass, Mrs. Aus-man’s son, as special administrator of Mr. Ausman’s estate, was filed. A hearing on the motion to strike and the motion to substitute was held on September 27, 2011. At that hearing, counsel for Mrs. Ausman argued that the motion to strike should be dismissed because the revivor statutes had never before been applied to a case where a special administrator died during the pendency of the action. He further argued that this case presented a pure issue of substitution of parties pursuant to Rule 25. Counsel for Hiram Shaddox argued that section 1662109 clearly addressed the situation where a personal representative’s powers have ceased for a period of time and, thus, where the statutory time frame in section 16-62-108 had not been superseded by Rule 25, it applied to the case at bar. At the conclusion of the hearing, the circuit court took the matter under advisement.

The circuit court entered an order granting the motion to strike and dismissing the complaint with prejudice on November 7, 2011. In its order, the circuit court found that, pursuant to this court’s opinion in Deaver v. Faucon Properties, Inc., 367 Ark. 288, 239 S.W.3d 525 (2006), Rule 25 superseded the procedure for revivor set forth in Ark.Code Ann. § 16-62-105. But, the court also found that the statute of limitations provided for in section 16-62-108 remained in effect. Thus, because the Estate failed to revive the action within one year from the date of Mrs. Ausman’s death, the court granted the motion to strike, denied the motion for substitution, and dismissed the complaint with prejudice. A timely notice of appeal followed.

I/The issue to be decided in this case is whether the one-year statute of limitations found in section 16-62-108 is applicable where a special administrator of an estate dies during the pendency of litigation or whether the matter is simply governed by Rule 25’s requirement for substitution of parties. On appeal, the Estate argues that the circuit court erroneously relied on sections 16-62-108 and 16-62-109 in ruling that the Estate failed to properly revive the action. Moreover, the Estate argues that this case is materially distinguishable from the facts in Deaver, 367 Ark. 288, 239 S.W.3d 525, and Nix v. St. Edward Mercy Medical Center, 342 Ark. 650, 30 S.W.3d 746 (2000), because in this case it was not the injured party who originally brought suit who passed away; rather, it was a noninjured special administrator who passed away while litigation was pending. Thus, according to the Estate, when Mrs. Ausman died, the Estate’s claims did not necessitate revival under sections 16-62-108 and 16-62-109, and filing a timely motion for substitution pursuant to Rule 25 was all that was necessary.

Hiram Shaddox counters that the circuit court properly struck the complaint and dismissed the case where the Estate failed to file a suggestion of death upon the record or a motion for substitution within one year from the date of Mrs. Ausman’s death because this court has held that the one-year limitation in section 16-62-108 was not superseded by Rule 25. Moreover, Appellees assert that the language of section 16-62-109 clearly indicates that the requirements imposed by the revivor statutes apply in the situation of the death of a personal representative.

We review issues of statutory construction de novo; it is for this court to decide what a statute means. Kimbrell v. McCleskey, 2012 Ark. 443, 424 S.W.3d 844. We are not bound | ¿by the decision of the circuit court; however, in the absence of a showing that the circuit court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. See id. The cardinal rule of statutory construction is to construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Cent. Okla. Pipeline, Inc. v. Hawk Field Servs., LLC, 2012 Ark. 157, 400 S.W.3d 701. When the language of the statute is plain and unambiguous, and conveys a clear and definite meaning, there is no need to resort to rules of statutory interpretation. Scoggins v. Medlock, 2011 Ark. 194, 381 S.W.3d 781.

Section 16-62-108 provides, in pertinent part:

An order to revive an action in the names of the representatives or successor of a plaintiff may be made forthwith. However, an order to so revive the action shall not be made without the consent of the defendant after the expiration of one (1) year from the time when the order might first have been made.

Section 16-62-109 provides:

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2013 Ark. 66, 426 S.W.3d 379, 2013 WL 636202, 2013 Ark. LEXIS 82, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ausman-ex-rel-estate-of-ausman-v-hiram-shaddox-geriatric-center-ark-2013.