{ "id": 6139074, "name": "Ann WOOLEY, Individually and as Administratrix of the Estate of Ray Wooley, Deceased v. PLANTER'S COTTON OIL MILL, INC., Continental Eagle Corporation, and Cotton Handlers Manufacturing, Inc.", "name_abbreviation": "Wooley v. Planter's Cotton Oil Mill, Inc.", "decision_date": "2005-06-01", "docket_number": "CA 04-955", "first_page": "213", "last_page": "219", "citations": [ { "type": "official", "cite": "91 Ark. App. 213" }, { "type": "parallel", "cite": "209 S.W.3d 409" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "962 S.W.2d 815", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 6138944, 377589 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ark-app/60/0179-01", "/ark/332/0615-01" ] }, { "cite": "60 Ark. App. 179", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138944 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ark-app/60/0179-01" ] }, { "cite": "67 Ark. App. 61", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136889 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark-app/67/0061-01" ] }, { "cite": "288 Ark. 304", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719955 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/288/0304-01" ] }, { "cite": "355 Ark. 547", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 2648295 ], "weight": 2, "year": 2004, "opinion_index": 0, "case_paths": [ "/ark/355/0547-01" ] }, { "cite": "359 Ark. 471", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3712533 ], "weight": 6, "year": 2004, "pin_cites": [ { "page": "474" }, { "page": "47" }, { "page": "476" }, { "page": "49" } ], "opinion_index": 0, "case_paths": [ "/ark/359/0471-01" ] }, { "cite": "239 Ark. 287", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1730565 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/ark/239/0287-01" ] }, { "cite": "298 Ark. 294", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1889927 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/298/0294-01" ] }, { "cite": "254 Ark. 705", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1624066 ], "weight": 3, "year": 1973, "opinion_index": 0, "case_paths": [ "/ark/254/0705-01" ] }, { "cite": "343 Ark. 372", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 226570 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/343/0372-01" ] }, { "cite": "212 Ark. 123", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1470223 ], "weight": 3, "year": 1947, "opinion_index": 0, "case_paths": [ "/ark/212/0123-01" ] }, { "cite": "193 S.W. 83", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1917, "opinion_index": 0 }, { "cite": "127 Ark. 498", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1550197 ], "year": 1917, "opinion_index": 0, "case_paths": [ "/ark/127/0498-01" ] }, { "cite": "90 S.W.2d 986", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1936, "opinion_index": 0 }, { "cite": "192 Ark. 311", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1415018 ], "year": 1936, "opinion_index": 0, "case_paths": [ "/ark/192/0311-01" ] }, { "cite": "88 S.W. 833", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1905, "opinion_index": 0 }, { "cite": "76 Ark. 122", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1501071 ], "year": 1905, "opinion_index": 0, "case_paths": [ "/ark/76/0122-01" ] }, { "cite": "30 S.W.2d 845", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1930, "opinion_index": 0 }, { "cite": "182 Ark. 37", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1389702 ], "year": 1930, "opinion_index": 0, "case_paths": [ "/ark/182/0037-01" ] }, { "cite": "228 Ark. 1115", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726363 ], "weight": 2, "year": 1958, "opinion_index": 0, "case_paths": [ "/ark/228/1115-01" ] }, { "cite": "Ark. Code Ann. \u00a7\u00a7 16-62-105", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "pin_cites": [ { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7\u00a7 16-62-108", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "opinion_index": 0 } ], "analysis": { "cardinality": 638, "char_count": 12474, "ocr_confidence": 0.819, "pagerank": { "raw": 1.1498552407942611e-07, "percentile": 0.5811526077389068 }, "sha256": "2bd059b9cfd0f96cda866606b8471a5b4896a9abc07236abb265d41cfcaa77cb", "simhash": "1:ea5ad6bce12a7642", "word_count": 2061 }, "last_updated": "2023-07-14T22:09:43.302028+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Pittman, C.J., and Crabtree, J., agree." ], "parties": [ "Ann WOOLEY, Individually and as Administratrix of the Estate of Ray Wooley, Deceased v. PLANTER\u2019S COTTON OIL MILL, INC., Continental Eagle Corporation, and Cotton Handlers Manufacturing, Inc." ], "opinions": [ { "text": "Karen R. Baker, Judge.\nAppellant Ann Wooley appeals the order of the Jefferson County Circuit Court dismissing her wrongful-death and survival action against appellee Continental Eagle Corporation as not having been properly revived within one year as provided by Ark. Code Ann. \u00a7\u00a7 16-62-108 and 109 (1987). She also brings up for review the summary judgments in favor of appellees Planters Cotton Oil Mill, Inc. (\u201cPlanters\u201d), and Cotton Handlers Manufacturing, Inc. (\u201cCotton Handlers\u201d). We find no error and affirm.\nThe facts are not in dispute. In August 1999, the decedent, Raymond Wooley, was on the premises of Planters as an independent contractor to perform electrical work on Planters\u2019s machinery. In order to work on the machinery, decedent placed his ladder next to the machine and climbed to the top of the machine. Decedent fell approximately twenty-five feet and sustained severe head injuries. On January 16, 2003, he died as a result of these injuries. Wooley, in her capacity as the decedent\u2019s wife and next friend, originally filed suit against Planters for decedent\u2019s personal injuries prior to his death. The complaint was subsequently amended to include allegations of negligence against Cotton Handlers, a contractor performing work at the site at the time of the decedent\u2019s accident, and allegations of negligent design, strict liability, and breach of warranty against Continental, the manufacturer of the machine decedent was attempting to repair.\nAfter the trial court granted the motions for summary judgment filed by Planters and Cotton Handlers in separate orders entered on September 4, 2002, the case continued against Continental. Decedent died on January 16, 2003. On August 14, 2003, Wooley amended her complaint to state that she had been appointed administratrix of the decedent\u2019s estate and to assert an additional cause of action for the decedent\u2019s wrongful death. Continental generally denied the allegations and asserted the affirmative defenses of lack of jurisdiction (both personal and subject-matter), insufficiency of process and service of process, and improper venue.\nOn March 24, 2004, Continental filed a \u201cMotion to Strike and to Dismiss,\u201d alleging that the action abated upon the decedent\u2019s death and that Wooley failed to revive the action within one year as required by Ark. Code Ann. \u00a7\u00a7 16-62-108 and 109 (1987). As an exhibit to the motion, Continental attached the affidavit of Earnest Edwards, its vice president of engineering, stating that decedent died on January 16, 2003, and that Continental had not been served with an order reviving the action. On April 8, 2004, Wooley filed a \u201cMotion for Revivor,\u201d asserting that Continental had impliedly consented, or waived any objection, to the revivor by continuing to defend the action without objection and by failing to raise the issue in its answer to the amendment to the complaint following decedent\u2019s death. Continental filed a \u201cResponse and Objection to Plaintiffs Motion for Revivor.\u201d\nThe trial court entered an order finding that Wooley failed to revive the action within one year of the decedent\u2019s death, that Continental did not consent to the revival of the action, and that all claims arising out of the decedent\u2019s accident should be dismissed with prejudice. Wooley filed a motion seeking reconsideration of the dismissal based on Continental\u2019s implicitly consenting, or being estopped from objecting, to the revivor. The trial court denied the motion. This appeal followed.\nWooley raises three points on appeal: that the trial court erred in granting summary judgment to Planters; that the trial court erred in granting summary judgment to Cotton Handlers; and that the trial court erred in granting Continental\u2019s motion to strike and dismiss while denying her motion for revivor. We find the third point dispositive and do not discuss Wooley\u2019s first and second points.\nIn her third point, Wooley argues that the trial court erred in granting Continental\u2019s motion to strike and dismiss while denying her motion for revivor because she substantially complied with the purposes behind the revivor statute and because Continental implicitly acquiesced in the revivor.\nThere are three code sections relevant to this point, Ark. Code Ann. \u00a7\u00a7 16-62-105, 16-62-108, and 16-62-109 (1987). Section 16-62-105 provides, in pertinent part:\n(a) Where one (1) of the parties to an action dies, or his powers as a personal representative cease before the judgment, if the right of action survives in favor of or against his representative or successor, the action may be revived and proceed in their names.\n(b) The revivor shall be by an order of the court that the action be revived in the names of the representatives or successor of the party who died, or whose powers ceased, and proceed in favor of or against them.\n(c) The order may be made on the motion of the adverse party, or of the representatives or successor of the party who died or whose powers ceased, suggesting his death or the cessation of his powers, which with the names and capacities of his representative or successor, shall be stated in the order.\n(d)(1) If the order is made by the consent of the parties, the action shall forthwith stand revived.\n(2) If not made by consent, the order shall be served in the same manner as a summons upon the party adverse to the one making the motion. At the first term commencing not less than ten (10) days after such service, the party on whom it is made may show cause against the revivor. If sufficient cause is not then shown, the cause shall stand revived.\nSection 16-62-108 provides, in pertinent part:\nAn 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. . . .\nSection 16-62-109 provides:\nWhen it appears to the court by affidavit that either party to an action has been dead ... for a period so long that the action cannot be revived in the names of his representatives or successor without the consent of both parties, it shall order the action to be stricken from the docket.\nThe supreme court has uniformly held that the statutes are mandatory in their terms and the revivor, to be effective, must be applied for within the time prescribed by statute. Wilson v. Huggins, 228 Ark. 1115, 314 S.W.2d 694 (1958); Prager v. Wootton, 182 Ark. 37, 30 S.W.2d 845 (1930); Anglin v. Cravens, 76 Ark. 122, 88 S.W. 833 (1905). The supreme court has also construed our statutes so that, when a plaintiff dies, the revivor may be made in the name of his representatives forthwith whether the defendant consents to it or not. Heilig v. Haskins, 192 Ark. 311, 90 S.W.2d 986 (1936); Keffer v. Stuart, 127 Ark. 498, 193 S.W. 83 (1917). The court further said that the statute does not require that the defendant be consulted until after the expiration of one year from the time when the order of the revivor might have been first made but that, after that time, the order of revivor could not be made without the consent of the defendant. Keffer, supra.\nThe amendment of the complaint to allege Wooley\u2019s appointment as administratrix of the decedent\u2019s estate and the assertion of a cause of action for wrongful death could be construed as a suggestion of death as contemplated by Ark. Code Ann. \u00a7 16-62-105(c). However, Wooley did not request an order of revivor in her amended complaint. Further, section 16-62-105(b) provides that the \u201crevivor shall be by an order of the court that the action be revived in the names of the representatives ... of the party who died . . . and proceed in favor of or against them.\u201d (Emphasis added.) See also Higgerson v. Higgerson, 212 Ark. 123, 205 S.W.2d 33 (1947). When interpreting statutory language, for example, our courts have found that the word \u201cshall\u201d in the statute indicates mandatory compliance with the statute\u2019s terms unless compliance would result in an absurdity. See, e.g., Ramirez v. White County Circuit Court, 343 Ark. 372, 38 S.W.3d 298 (2001). Therefore, Wooley\u2019s efforts were insufficient to revive the action because no order of revivor was ever entered. Furthermore, the burden to have the action properly revived is on the party seeking the relief from the court. McDonald v. Petty, 254 Ark. 705, 496 S.W.2d 365 (1973).\nWooley argues that Continental has waived its right to object to the revivor by continuing to participate in discovery and other actions. See Speer v. Speer, 298 Ark. 294, 766 S.W.2d 927 (1989); McDonald, supra; Short v. Stephenson, 239 Ark. 287, 388 S.W.2d 912 (1965). However, given the supreme court\u2019s holding that Continental need not have been consulted until one year after the decedent\u2019s death, Keffer, supra, and that Continental raised objections to jurisdiction in its answer, we do not believe that Continental has waived its right to object. Further, Wooley did not specifically seek revivor in the amendment to her complaint filed in August 2003.\nWooley argues that, even if this court holds that Continental had not waived its right to object to the revivor, her wrongful-death action would not be affected. However, our supreme court has recently held that a wrongful-death action is derivative in nature from the original tort and, where the underlying tort action is no longer preserved, the wrongful-death action is barred as well. Brown v. Pine Bluff Nursing Home, 359 Ark. 471, 199 S.W.3d 45 (2004); Estate of Hull v. Union Pac. R.R., 355 Ark. 547, 141 S.W.3d 356 (2004); see also Simmons First Nat\u2019l Bank v. Abbott, 288 Ark. 304, 705 S.W.2d 3 (1986). The only distinction between the facts in Brown and the present case are that, in Brown, suit was filed and then nonsuited before the second suit was filed and later dismissed for improper service prior to the wrongful-death action being asserted and that the decedent was declared dead by the probate court.\nOn appeal in Brown, the Arkansas Supreme Court ruled that it \u201cmust affirm the trial court\u2019s decision because Brown\u2019s wrongful-death claim was derivative of her negligence action, and the negligence action was subject to dismissal with prejudice.\u201d Brown, 359 Ark. at 474, 199 S.W.3d at 47. As a result, the court said that, because the dismissal with prejudice bars Brown from bringing another negligence suit, she could not file a separate wrongful-death suit since it would be derivative of the right to bring a negligence action. In so ruling, the court noted \u201cfor clarity\u2019s sake\u201d that its decision does not mean that Brown\u2019s wrongful-death action was barred by the statute of limitations. To the contrary, the court stated:\n[H]ad there not been a dismissal with prejudice of the underlying negligence action, and had Brown simply waited to file the wrongful-death complaint after obtaining the declaration of death from the Probate Court, her action would have been timely, as a wrongful-death action does not arise until the date of the death.\nBrown, 359 Ark. at 476, 199 S.W.3d at 49, ri. 2.\nWooley argues that Justice Hannah\u2019s concurrence in Brown suggesting that it was time to reexamine the case law holding that a wrongful-death action is derivative of the decedent\u2019s action for the injuries causing death should be followed. However, we are obliged to follow the majority opinion in Brown as it is the current statement of the law. See, e.g., ALCOA v. Carlisle, 67 Ark. App. 61, 992 S.W.2d 172 (1999); Davis v. State, 60 Ark. App. 179, 962 S.W.2d 815 (1998).\nAs to Planters or Cotton Handlers, after entry of summary judgment in their favor, Wooley admitted that she did not attempt to serve either the amended complaint or the revivor motion on those parties. Therefore, the action abated as to those parties and there is no summary judgment for this court to review. See Higgerson, supra.\nAffirmed.\nPittman, C.J., and Crabtree, J., agree.", "type": "majority", "author": "Karen R. Baker, Judge." } ], "attorneys": [ "Gary Eubanks & Associates, by: Russell D. Marlin, for appellant.", "Wright, Lindsey &Jennings L.L.P., by: John G. Lile and Justin T. Allen, for appellee Continental Eagle Corporation." ], "corrections": "", "head_matter": "Ann WOOLEY, Individually and as Administratrix of the Estate of Ray Wooley, Deceased v. PLANTER\u2019S COTTON OIL MILL, INC., Continental Eagle Corporation, and Cotton Handlers Manufacturing, Inc.\nCA 04-955\n209 S.W.3d 409\nCourt of Appeals of Arkansas\nOpinion delivered June 1, 2005\n[Rehearing denied August 24, 2005.]\nGary Eubanks & Associates, by: Russell D. Marlin, for appellant.\nWright, Lindsey &Jennings L.L.P., by: John G. Lile and Justin T. Allen, for appellee Continental Eagle Corporation." }, "file_name": "0213-01", "first_page_order": 237, "last_page_order": 243 }