Garrett v. Progressive Eldercare Servs. Saline, Inc.

2019 Ark. App. 201, 575 S.W.3d 426
CourtCourt of Appeals of Arkansas
DecidedApril 10, 2019
DocketNo. CV-18-744
StatusPublished
Cited by3 cases

This text of 2019 Ark. App. 201 (Garrett v. Progressive Eldercare Servs. Saline, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Garrett v. Progressive Eldercare Servs. Saline, Inc., 2019 Ark. App. 201, 575 S.W.3d 426 (Ark. Ct. App. 2019).

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 *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 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 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.

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 , 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.

*430Standridge v. State , 2014 Ark. 515

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2019 Ark. App. 201, 575 S.W.3d 426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garrett-v-progressive-eldercare-servs-saline-inc-arkctapp-2019.