*1 471 statement that both Starr’s cumulative was that was evidence car at the time in the statement put Jefferson Jefferson’s is not of a crime at the scene ofa mere person crimes. presence State, 954 S.W.2d Ark. v. Thomas of his or her guilt. proof that even the State’s contention with We do not agree 255 (1997). excluded, was still overwhelming there statement was if Starr’s To in the crimes. actively participated evidence Jefferson does not harmless and error is that a constitutional conclude a reasonable reversal, conclude this court must beyond mandate v. to the verdict. See not contribute that the error did doubt Jones State, State, Allen 984 S.W.2d see also California, 346 (1992); Chapman 838 S.W.2d admission of conclude that the We cannot U.S. 18 (1967). doubt. a reasonable harmless error statement is beyond Starr’s and remanded. Reversed v. PINE BLUFF NURSING HOME
Edna Thomas BROWN Healthcare, Inc., Pine Bluff Center Southern d/b/a Nursing a/k/a S.W.3d 45 04-52 of Arkansas Court Supreme delivered December Opinion *2 P.A., Brooks, Wilkes& Brian G. McHugh, by: appellant. Anderson, L.L.P., Littleton, & DavidA. Murphy Hopkins, by: appellee. Tom Glaze, 1998, Ed Thomas was January Justice.
admitted to the Pine Bluff and Rehabilitation Nursing Center (“the Thomas home”). was nursing seventy-two-year-old man who had been with dementia and declared diagnosed incapaci- tated. On January 24,1998, Thomas wandered from the away nursing home; he was never found. tragically, On September 14, 2000, Thomas’s daughter Brown, Edna guardian, Thomas appellant filed a home, suit against Pine nursing Bluff naming Townsend, Home and Stan Nursing owner of the part company that owned the home. The was nursing served on complaint Townsend; he answered, and the home nursing com- discovery However, menced. 19, dismissedthat suit on voluntarily July 2001. 8, 2002, On later, less than twelve months Brown filed a second Pine Bluff complaint against Home and Stan Nursing
Townsend, wherein she again alleged home nursing cared for Ed “negligently Thomas in such a manner as to be the cause of his death.” proximate On probable November Brown filed a motion to extend the time for service of process, home’s claiming for service nursing had agent ad- changed dresses. The trial court order, Brown an extension granted which was entered on Nonetheless, November 2002. the nursing home was never served a with summons. counsel for the home and Townsend nursing became aware of the suit as a result of a letter mailed to administrator, home’s nursing Deborah York, who was not a Nonetheless, for service. registered agent home and nursing Townsend filed an answer on December 2002, and a motion for summary judgment 2003. April Both the home and Townsend nursing that Brown had alleged therefore, on either served the never party; properly be dismissed with Brown’s second lawsuit should they argued, prejudice. than five after Ed Thomas’s
On more May years Probate declared him Court County disappearance, Jefferson 16-40-105; deceased, to be to Ark. Code Ann. pursuant § of Thomas’s Brown as personal representative appointed estate. Brown filed an amended On May complaint again addition, for the first time a she alleging negligence; alleged Ann. 16-62-102. This death claim under Code time, served, Brown’s and on May properly a 2003, the the amended home filed motion to dismiss nursing the failure-of-service contentions raised in complaint, reiterating its motion for previous summary judgment. *3 dismiss,
In her home’s motion to response nursing that, Brown since home’s motion argued filing nursing the facts had In she summary judgment, changed. particular, that, out due to the court’s declaration that pointed probate dead, Thomas was she had a death claim that had not wrongful existed. Brown also noted that her in the first previously complaint suit contained neither a death claim nor a wrongful statutory claim, survival and that neither cause of action could have been to the declaration of Thomas’s death. Because the pled prior May 9, 2003, amended involved of fact that complaint allegations 8, 2002, filed, claimed, occurred after the was she July complaint the amended should be classifiedas complaint properly supple- under Ark. R. Civ. P. as to an mentary 15(d), pleading opposed addition, amended under Ark. R. Civ. P. Brown pleading 15(a). that no death cause of action accrued until argued 2003, May dead; therefore, when the trial court declared Thomas she contended, in the event the court decided to the nursing grant dismiss, home’s motion to such dismissal should be without under Ark. P. In a 41(a). R. Civ. prejudice Brown further supplemental response, that, under Ark. Ann. Code 16-56-116 argued § the statute due of limitations should be tolled 2003), (Supp. mental Thomas’s incompetence. After a the trial court home’s hearing, granted nursing motion on that it
summary-judgment September finding and Townsend were not served within the extended time properly addition, for service. In found that Brown’s wrongful limitations, death claim was barred statute of three-year see Ark. Code Ann. & because 16-62-102(c)(l) (1987 2003), Supp. claim of the was derivative initial complaint The court also Brown’s
alleging statute rejected savings- negligence. statute that the savings only argument, ruling applied actions, common-law and did not the statute of toll limitations Therefore, death claim. the court dismissed Brown’s amended with prejudice. On Brown that the trial court erred in holding appeal, argues barred;
that her
she also
contends
Thomas’s
tolled the statute of
limitations.
incompetence
law,
that this
parties agree
appeal presents purely questions
standard of review therefore de novo. See
appropriate
Ark.
trial
Moncrief to Rule (2003) (“Pursuant the second an 41(b), dismissal was Hanna, on the adjudication 228 Ark. merits”); Curry 307 S.W.2d to be (1957) (“The rule well established appears that a ‘dismissal with is to a final prejudice’ equivalent judgment days As the was filed on serving the 120 allowed the 5, 2002. above, 4(i) expired under Rule would have on November As noted on November obtained extending by days, an order the time for ninety service 3, 2003. February or until con- of res the doctrine judicata of as the insofar application 351, 266 S.W.2d 223 Ark. FinanceCo. Wright, Seaboard cerned”); the “final is a adjudication with dismissal 70 (1954) (a prejudice of res judicata). merits” purposes also in Brown’s complaints
The alleged death action alleged cause of wrongful formed the underlying has this court 9, 2003, amended her complaint. in May action is death that a held, this as year, as recently tort, under and where in nature from original derivative the wrongful is no tort action longer preserved, lying R.R., 355 Ark. Hull v. Union Estate barred as well. See Pacific Bankv. FirstNational seealsoSimmons 356 (2004); 141 S.W.3d Hull, there In Estate Abbott, 705 S.W.2d 288 Ark. 1996; in March of and a car a train an accident involving railroad. with the a settlement entered into Hull’s Sharon guardian all settlement, a release of executed guardian As part in Hull died to the accident. claims related liability Union time, to seek damages against her estate at that attempted the estate’s The trial court dismissed of her death. Pacific as a result and release suit, the 1996 settlement that death holding an that a “suit by future suit. This agreed, noting barred any any wrongful reducedto extinguishes judgment, injured party, final based on identical allega identical defendants death claim against Hull, added). at 358 355 Ark. (emphasis of fault.” Estate tions derivative that, death action was court held since wrongful tort, and since the right original in nature from original Union therefore no was settled and longer preserved, decedent settlement with defense in its had an absolute prior Pacific Likewise, Simmons, that a the court held Id. at 360. decedent. reduced to during or a suit judgment an settlement by injured party bars the lifetime of injured subsequent party because of resjudicata. kin or other beneficiaries the next of suit by Simmons, at 307. statute, our because
This result is obtained
&
2003),
16-62-102 (1987
provides
Ark. Code Ann.
Supp.
death is “caused
of action arises when
a cause
person’s
act,
default is
act,
or
default and
neglect,
or
neglect,
an action
to maintain
would have entitled
injured
such as
party
death had not
thereof
and recover damages
respect
ensued[.]”
if
with similar wrongful
Other
added.)
jurisdictions
(Emphasis
*5
See,
Xu v.
result.
Gay,
have reached the same
e.g.,
statutes
Mich.
Wrongful is plaintiff to assert basis permitted any recovery decedent could have if he asserted were alive, other; and no and that the defendant can assert any defense that cause of action that it could have if asserted survived, decedent had and no other. The statutory beneficia- ries of deceased ... have the same substantive to recover rights as the deceased would have had had his less injury been than death. we have
Accordingly,
recognized that death action is not
not,
allowed
death,
the decedent could
immediately prior
his
have
if
maintained an actionf]
Russell,
In the as discussed present Thomas’s negligence action concluded a dismissal with That action prejudice. having been dismissed with Thomas could not have prejudice, brought another lawsuit from the same acts in the stemming Therefore, event that he had survived. we affirm the trial court’s decision that barred from the instant bringing action, and the trial court was correct to dismiss case.2 concur. JJ.,
Corbin Hannah, 2 For we holding sake, out we are not that Brown’s clarity’s point action barred statute limitations. Had there prejudice not been dismissalwith underlying negligence and had Brown action, waited to file the simply obtaining after declaration death from the action court, her would probate have been as a death action does until not arise date of death. See timely, Nelson (2000) (wrongful Schubert, 98 Wash. P.2d 255 death action not barred App.
477
this case must
that
agree
concurring.
Jim Hannah, Judge,
I
that
affirmed,
I
this
because believe
be
but I write separately
is
death action
the
that a has erred in
holding
court
past by
death.
action
causing
the decedent’s
for
injuries
derivative of
to
this case does not
opportunity
provide
appropriate
facts;
set of
case
cases. This
tragic
overrule
presents
prior
law,
however,
a failure to
also
case under our
case
presents
this
present
Ed Thomas.
a cause of action for
suffered
injuries
by
preserve
law,
for
suffered
cause of action
Under current
any
injuries
to
serve the
Brown’s failure
timely
Thomas was extinguished by
by
Because this court long
erroneously
ago
July
complaint.
that
action
derivative of an action for
held
is
decedent,
the cause of action for wrongful
suffered
injuries
by
for
suffered
Thomas’s next
injuries
seeking compensation
by
kin
with the cause of action for injuries
was
along
extinguished
Co.,
Thomas.
v. TravelersIndem. Ins.
suffered
Matthews
by
485
See also Estate Hull v. Union
(1968).
S.W.2d
Pacific
Co.,
Ark.
Simmons First
R.R.
Abbott,
Nat’l
Ark.
S.W.2d 3
The
Bank
in the
case have not
holding
challenged
parties
present
in
Matthews. The
of Matthews was not
Simmons
holding
challenged
Hull,
cases,
Estate
and
both
this
followed
or
those
Matthews
to the doctrine of stare decisis.
pursuant
us,
the case before
two
argues
complaints
now
did
filed
to
“Amended
at issue
not
previous
Complaint”
that Pine Bluff
Home caused Thomas’s death. She
assert
Nursing
also
that neither
two
argues
complaints prior
asserted
death or survivor
“Amended
“wrongful
Complaint”
was
and
not included in
actions.” The first
non-suited
complaint
this
The
the record before
court.
alleges
July
complaint
cause of
and
action
Thomas’s
by
guardian seeking compensatory
humiliation,
damages
pain
suffering,
punitive
“physical
Thus, Brown
in her first
asserts
two
outrage.”
fright
was
as
suf-
she
Thomas’s
for injuries
complaints,
suing
guardian
was
fered
his
disappearance.
July
underlying negligence
because
claim,
statute of limitations on
by
three-year
begin
missing
until a
be established
limitations
did not
to run
could
period
person’s
(Mo.
1992) (plaintiff
Howell
presumption);
If Thomas was on when the second filed, his could have an guardian assert proceeded action his his behalf for Code Ann. 28-65-305 injuries. dead, If he was 1987). could no such guardian (Repl. bring *7 However, action. Ark. Code Ann. 2001) 16-62-101 (Supp. § death, that for done ato before a suit provides be wrongs person may after the death for the of
brought benefit his or her person’s estate. Under Ark. Code Ann. 16-62-102 a (Supp. 2001), § death action be to the allow wrongful may brought spouse next of kin to for recover suffered as a of injuries they consequence a death. wrongful Thus, while the survival statute provides compensation decedent, to the estate for to the the death injuries statute wrongful the and next of kin for suffered as compensates a spouse injuries they of the decedent’s death. That makes it clear a consequence death action is not derivative of cause wrongful of action any decedent, in life the or possessed derivative of of by cause any action the of decedent that survives under Ark. Code Ann. 16-62-101. this court in Matthewsstated: §
We are not
the
overlooking
argument that the administrator’s
derivative,
actionfor
deathis
wrongful
to someextent
in thatit may
be
either
a suit
extinguished
by
for personalinjuries prosecutedby
lifetime,
to a
injured
final
person
his
judgment during
Restate-
ment,
Judgments,
(1942),or
of
by
running
applicable
§
statute
limitation
during
injured
person’slifetime. Hicks
R.R.,
MissouriPac.
181F.
(W.D.
Supp.
1960),
dism.
app.
285 F.2d
Matthews,
A death action a wrongful allows and next of kin spouse recover suffered as a damages they a personally consequence tortious injury of a member. The at causing family injury issue in a wrongful is the suffered injury by spouse kin, next not the suffered injuries A decedent. by survival action the estate for to the compensates injuries decedent. Thus, while action obviously dependent upon, suffered by of a tortious injury derivative or even arguably cause or a viable decedent, lawsuit derivative of a it is not pending Matthews, this the decedent. suffered by of action injuries action for injuries pros- stated that an personal court mistakenly or her his a final during judgment ecuted injured person As death action. to bring wrongful lifetime any right extinguishes indicates, Ann. an action for 16-62-102 Ark. Code clearly the death act causing death is upon dependent death action is that a The conclusion of the decedent. action for or viable cause of injuries of a lawsuit derivative pending the law and an a misstatement of decedent is suffered simply by-the case; affirm this has no choice but to this court error. Regrettably, death at the first however, law on we should revisit the opportunity.
Corbin, J., joins. *8 of Arkansas RATLIFF v. STATE
Johnny 199 S.W.3d79 CR 04-714 Arkansas Court of Supreme delivered December Opinion