{ "id": 3696044, "name": "Ronnie DEAVER as Administrator of the Estate of Faye Deaver v. FAUCON PROPERTIES, INC. d/b/a St. Andrews Place; St. Andrews Place, Inc. d/b/a St. Andrews Place; and William A. Mainord", "name_abbreviation": "Deaver v. Faucon Properties, Inc.", "decision_date": "2006-09-21", "docket_number": "06-320", "first_page": "288", "last_page": "296", "citations": [ { "type": "official", "cite": "367 Ark. 288" }, { "type": "parallel", "cite": "239 S.W.3d 525" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "333 Ark. 476", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 703801 ], "weight": 2, "year": 1998, "pin_cites": [ { "parenthetical": "a court does not act sua sponte when its reversal is \"prompted\" by appellant's argument" }, { "parenthetical": "a court does not act sua sponte when its reversal is \"prompted\" by appellant's argument" } ], "opinion_index": 0, "case_paths": [ "/ark/333/0476-01" ] }, { "cite": "242 Ark. 923", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724570 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/ark/242/0923-01" ] }, { "cite": "342 Ark. 650", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1342401 ], "weight": 6, "year": 2000, "pin_cites": [ { "page": "654" }, { "page": "749" }, { "page": "653" }, { "page": "748" } ], "opinion_index": 0, "case_paths": [ "/ark/342/0650-01" ] }, { "cite": "366 Ark. 584", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3655725 ], "weight": 2, "year": 2006, "opinion_index": 0, "case_paths": [ "/ark/366/0584-01" ] }, { "cite": "719 S.W.2d 436", "category": "reporters:state_regional", "reporter": "S.W.2d", "weight": 3, "year": 1986, "opinion_index": 0 }, { "cite": "290 Ark. 616", "category": "reporters:state", "reporter": "Ark.", "weight": 3, "year": 1986, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 16-62-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "162 S.W. 47", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1913, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "110 Ark. 311", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1337066 ], "year": 1913, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/ark/110/0311-01" ] }, { "cite": "1 Ark. 165", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8728466 ], "opinion_index": 0, "case_paths": [ "/ark/1/0165-01" ] }, { "cite": "88 S.W. 833", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1905, "pin_cites": [ { "page": "834" } ], "opinion_index": 0 }, { "cite": "76 Ark. 122", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1501071 ], "year": 1905, "pin_cites": [ { "page": "124" } ], "opinion_index": 0, "case_paths": [ "/ark/76/0122-01" ] }, { "cite": "327 Ark. 685", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 922855 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "689" }, { "page": "493" } ], "opinion_index": 0, "case_paths": [ "/ark/327/0685-01" ] }, { "cite": "Ark. Code Ann. \u00a7\u00a7 16-62-105", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 11, "pin_cites": [ { "page": "(a)" }, { "page": "(b)" }, { "page": "(a) and (b)" }, { "page": "(a) and (b)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "357 Ark. 403", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5402302 ], "weight": 2, "year": 2004, "opinion_index": 0, "case_paths": [ "/ark/357/0403-01" ] }, { "cite": "366 Ark. 277", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3656804 ], "weight": 2, "year": 2006, "opinion_index": 0, "case_paths": [ "/ark/366/0277-01" ] }, { "cite": "341 Ark. 804", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1257796 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/341/0804-01" ] }, { "cite": "94 Ark. App. 370", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142142 ], "weight": 2, "year": 2006, "opinion_index": 0, "case_paths": [ "/ark-app/94/0370-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-62-109", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 16-62-108", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 5, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7\u00a7 20-12-1201", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 } ], "analysis": { "cardinality": 696, "char_count": 16580, "ocr_confidence": 0.75, "pagerank": { "raw": 1.592700385927068e-07, "percentile": 0.6823363060935212 }, "sha256": "724344501ca3f32d6bbca6bbeb6364129b37c8fbb8c875b4cd57d08b27ee038d", "simhash": "1:8e5bedf7f5ea7625", "word_count": 2818 }, "last_updated": "2023-07-14T22:19:21.310389+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Ronnie DEAVER as Administrator of the Estate of Faye Deaver v. FAUCON PROPERTIES, INC. d/b/a St. Andrews Place; St. Andrews Place, Inc. d/b/a St. Andrews Place; and William A. Mainord" ], "opinions": [ { "text": "Jim Gunter, Justice.\nAppellant Ronny Deaver, as administrator for the Estate of Faye Deaver, appeals the circuit court\u2019s order striking and dismissing his complaint with prejudice for failing properly to revive Faye Deaver\u2019s claims after her death. We hold that the action was properly revived under Arkansas law, and we reverse the order of the circuit court.\nOn November 1, 2002, Faye Deaver and her son, Ronny Deaver, filed a complaint against the appellees: St. Andrews Nursing Home, various entities that owned the nursing home, and the administrator of the nursing home. The complaint alleged breach of contract, negligence, and res' ipsa loquitur. Faye died on May 3, 2003.\nOn October 28, 2003, appellant filed a pleading styled as follows: \u201cPLAINTIFFS\u2019 SUGGESTION OF DEATH UPON THE RECORD, MOTION FOR APPOINTMENT OF SPECIAL ADMINISTRATOR, AND REQUEST FOR ORDER OF SUBSTITUTING PARTIES.\u2019\u2019Appellant stated in this pleading that Faye had died, and he attached a death certificate. He also requested, pursuant to Ark. R. Civ. P. 25, the circuit court to appoint him as the special administrator for his mother with the power to prosecute the case on behalf of her estate and to order a substitution of the proper parties. In an order entered November 5, 2003, the circuit court appointed appellant as the special administrator for his mother, Faye, \u201cwith the power to prosecute this case on behalf of the Estate of Faye Deaver and its beneficiaries,\u201d and also ordered \u201ca substitution of the Special Administrator as the proper party to pursue this case on behalf of the Estate of Faye Deaver and its beneficiaries.\u201d\nOn March 7, 2005, appellant, acting individually and as administrator of his mother\u2019s estate, filed an amended complaint, reasserting the breach-of-contract and negligence claims, deleting any reference to res ipsa loquitur, and alleging a violation of the Arkansas Long-Term Care Facility Resident\u2019s Rights statutes. See Ark. Code Ann. \u00a7\u00a7 20-12-1201 to 1209 (Repl. 2005). The appellees moved to strike, asserting that appellant had \u201cneither petitioned for nor received an order of revival as required by Ark. Code Ann. \u00a7 16-62-108.\u201d They argued further that because more than one year had passed since Faye\u2019s death, the complaint must be dismissed with prejudice pursuant to Ark. Code Ann. \u00a7 16-62-109. The circuit court granted the motion and dismissed the complaint with prejudice.\nAppellant appealed to the Arkansas Court of Appeals, which reversed the circuit court\u2019s decision in Deaver v. Faucon Properties, Inc., 94 Ark. App. 370, 231 S.W.3d 100 (2006). We granted appellees\u2019 petition for review pursuant to Ark. Sup. Ct. R. 2-4 (2005). When this court grants a petition for review of a decision of the court of appeals, it reviews the case as though it had originally been filed in the Arkansas Supreme Court. Ark. Sup. Ct. R. l-2(e); Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000).\nThis case requires us to construe the requirements of the revivor statutes in conjunction with Rule 25 of the Arkansas Rules of Civil Procedure. We review issues of statutory construction and the interpretation of the rules of civil procedure de novo. See Harris v. City of Fort Smith, 366 Ark. 277, 234 S.W.3d 875 (2006); JurisDictionUSA, Inc. v. Loislaw.com, Inc., 357 Ark. 403, 183 S.W.3d 560 (2004).\nOn appeal, appellant argues that the lawsuit was properly-revived by the circuit court\u2019s order of November 5, 2003, appointing him special administrator for his mother and ordering substitution of parties pursuant to Ark. R. Civ. P. 25. Therefore, he argues, the circuit court\u2019s order striking his complaint and dismissing the lawsuit was error. Appellees respond, arguing that appellant failed properly to revive the action of Faye Deaver because he never obtained an \u201corder to revive\u201d in accordance with the revivor statutes, specifically citing Ark. Code Ann. \u00a7\u00a7 16-62-105, 108, and 109. Appellees argue that an order pursuant to Ark. R. Civ. P. 25 is \u201cinsufficient to revive an action pursuant to the mandate of Ark. Code Ann. \u00a7 16-62-105.\u201d\nI. Historical Overview\nIn order to determine whether this action was properly revived under Arkansas law, a brief overview of the law of revivor \u2014 and survival, which is often confused with revivor \u2014 is helpful. Revival refers to the continuation of an \u201caction\u201d upon the death of a party; survival refers to the continuation, or survival, of a \u201ccause of action\u201d upon the death of the injured party. See Black\u2019s Law Dictionary 1187, 1296 (5th ed. 1979). An \u201caction\u201d is an ordinary judicial proceeding. See In re Martindale, 327 Ark. 685, 689, 940 S.W.2d 491, 493 (1997); Black\u2019s Law Dictionary 26 (5th ed. 1979). In Arkansas, \u201ccivil actions\u201d embrace all actions formerly denominated \u201csuits\u201d in equity and \u201cactions\u201d at law. Ark. R. Civ. P. 2; see also Black\u2019s Law Dictionary 26 (5th ed. 1979). A \u201ccause of action\u201d is the set of facts that gives rise to the judicial proceeding. See Black\u2019s Law Dictionary 201 (5th ed. 1979). Therefore, the cause of action is born when certain facts occur that entitle the plaintiff to relief, and the action occurs when a complaint based upon those facts is filed with a court. Ark. R. Civ. P. 3.\n\u201cThe substitution of a new party to proceed with the prosecution or defense of a claim is the revivor of an action. The death of a party to a legal proceeding, where the cause of action survives, suspends the action as to decedent until someone is substituted for decedent as a party.\u201d 1 C.J.S. Abatement and Revival \u00a7 155 (emphasis added); see also Anglin v. Cravens, 76 Ark. 122, 124, 88 S.W. 833, 834 (1905) (\u201c[w]hen the plaintiff dies during the pendency of the action, any person interested in the further prosecution thereof may have a revivor in the name of the administrator or executor, if there be such, and the right of action be one that survives in favor of the personal representative\u201d).\n\u201cWhen the suit is revived,\u201d said this court in the early case of Bentley v. Dickson, 1 Ark. 165, \u201call the pleadings stand in the same attitude as if they had never been abated by death. The names only are changed upon the record, and it is a legal fiction by which the writ, declaration, plea, and other proceedings are all considered as there standing in the name of the executor or administrator.\u201d\nVandiever v. Conditt, 110 Ark. 311, 162 S.W. 47 (1913) (emphasis added). \u201cAn action cannot be revived unless the cause of action survives. However, the survival of a cause of action [internal citation omitted] and the revival of an action are different in that the former is a matter of right and the latter a matter of procedure.\u201d 1 C.J.S. Abatement and Revival \u00a7 155 (emphasis added).\nIn the case at bar, neither party is arguing that the cause of action has not survived. Therefore, for purposes of this appeal, we assume the cause of action has survived Ms. Deaver\u2019s death. The question in this case is whether the action, or lawsuit, was properly revived. This is a matter of procedure.\nII. Statutes /Rules\nWe turn now to the relevant statutes and procedural rules. Survival and abatement of actions are addressed in Ark. Code Ann. \u00a7 16-62-101 to 111. Sections 16-62-101 and 102 concern survival of a cause of action and are not relevant here. Section 16-62-105, relied upon by appellees, states that, upon the death of one of the parties to an action, the action may be revived if the right of action survives. Ark. Code Ann. \u00a7 16-62-105(a) (Repl. 2005). The statute then states that the \u201crevivor shall be by an order of the court\u201d and sets forth the procedures to obtain such an order. Ark. Code Ann. \u00a7 16-62-105(b) - (e) (Repl. 2005). Section 16-62-108 sets forth an exception to the rule allowing an action to be revived, essentially acting as a statute of limitations (which may be waived with consent). It states as follows:\n16-62-108. Reviver of actions against plaintiffs representative or successor - Exception.\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. Where the defendant shall also have died, or his or her powers have ceased in the meantime, the order of reviver on both sides may be made within the period provided by this section or the period provided by \u00a7 16-62-107(b), whichever shall be longer.\nWhile these statutes governed revivor and the procedure for obtaining an order of revivor until 1986, we deemed subsections (a)-(e) of Ark. Code Ann. \u00a7 16-62-105 superseded by the Arkansas Rules of Civil Procedure in a per curiam opinion dated November 24,1986. See In re Statutes Deemed Superseded by the Arkansas Rules of Civil Procedure, 290 Ark. 616, 719 S.W.2d 436 (1986). Therefore, the law governing the procedure for obtaining an order of revivor in Arkansas, although technically no longer referred to as \u201crevivor,\u201d is primarily Ark. R. Civ. P. 25 (Rule 25). We recognize that in Arkansas Department of Health and Human Services v. Smith, 366 Ark. 584, 237 S.W.3d 79 (2006), we mistakenly set forth the provisions of Ark. Code Ann. \u00a7 16-62-105 (Repl. 2005), stating that they governed the revival procedure. Thus, to the extent that Smith conflicts with our holding today, it is overruled.\nRule 25 states in pertinent part as follows:\n(a) Death. (1) If a party dies and the claim is not thereby extinguished, the Court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party, and such substitution may be ordered without notice or upon such notice as the Court may require. Unless the motion for substitution is made not later than ninety (90) days after the death is suggested upon the record by the service upon the parties of a statement of the fact of death, the action may be dismissed as to the deceased party.\n(2) Upon the death of a plaintiff the proper party for substitution shall be his personal representative or, where the claim has passed to his heirs or to his devisees, the heirs or devisees may be substituted for the deceased party. . . .\n(3) Upon the death of any party the Court before which such litigation is pending may, upon the motion of any party, appoint a special administrator who shall be substituted for the deceased party. The powers of such special administrator shall extend only to the prosecution and defense of the litigation wherein he is appointed.\n(e) Limitation of Rule. The provisions of this rule shall in no way allow a claim to be maintained which is otherwise barred by limitations or nonclaim, nor shall the provisions of this rule be determinative of whether or not a claim for or against a deceased party survives his death.\nIII. Case Law\nAppellees argue that the provisions of the revivor statutes are separate and distinct from Rule 25. In their brief, appellees cite and set forth the provisions found in Ark. Code Ann. \u00a7 16-62-105(a) and (b), stating that revivor must be accomplished through an order to revive. Then, relying upon Nix v. St. Edward Mercy Medical Center, 342 Ark. 650, 30 S.W.3d 746 (2000), appellees argue that Rule 25 was not designed to deal with survival of actions and that the substantive requirements of revivor, accomplished procedurally through an order to revive, cannot be superseded by Rule 25.\nFirst, the procedures set forth in Ark. Code Ann. \u00a7 16-62-105(a) and (b) were specifically superseded by the Arkansas Rules of Civil Procedure in 1986 and, therefore, no longer govern the procedure for obtaining an order of revivor. Second, appellees fail to explain exactly what these \u201csubstantive requirements of revivor\u201d include. The only \u201csubstantive requirement\u201d in the statutes cited by appellees is the time limitation provided in Ark. Code Ann. \u00a7 16-62-108. This statute states that an order to revive may not be made after the expiration of one year unless the defendant consents. In this case, the court entered its order of substitution seven months after Faye Deaver\u2019s death; therefore, there has been no violation of section 108\u2019s time limits. Revivor is simply the substitution of a new party to proceed with the prosecution or defense of a claim. 1 C.J.S. Abatement and Revival \u00a7155. This is exactly what the circuit court accomplished in this case by ordering the appointment of appellant as special administrator to pursue the prosecution and substituting him as the proper party to pursue the case under Ark. R. Civ. P. 25.\nFinally, appellees reliance on our decision in Nix is misplaced. The issue in Nix was simply whether Rule 25 supersedes the substantive time limitation imposed on revivor by Ark. Code Ann. \u00a7 16-62-108. We held that it did not. The plaintiff in Nix filed an action individually and as his wife\u2019s guardian for medical injuries sustained by his wife. His wife died while the action was pending. Thirteen months after her death, the defendants filed a motion to strike for failure to revive within one year. Plaintiff had filed neither a suggestion of death nor a motion for substitution pursuant to Rule 25. We affirmed the circuit court\u2019s order of dismissal, holding that Rule 25 did not extend the one-year statute of limitation on revivor set forth in Ark. Code Ann. \u00a7 16-62-108. Nix, 342 Ark. at 654, 30 S.W.3d at 749.\nThe case at bar does not concern section 108\u2019s time limitation. It is clear from the record that the court\u2019s order pursuant to Rule 25 was entered well within one year of Faye Deaver\u2019s death. The issue before us is whether the circuit court\u2019s order pursuant to Rule 25 \u2014 which order did not contain the word revivor \u2014 was sufficient to revive this action. We hold that it was. Revivor is a procedure used upon the death of a party to a legal proceeding in which a new party is substituted to proceed with the prosecution or defense of the claim. While Rule 25 does not specifically refer to an \u201corder to revive,\u201d this rule has governed the method for obtaining an order of substitution upon the death of a party since 1986, when we held that the Arkansas Rules of Civil Procedure superseded the revivor procedures set forth in Ark. Code Ann. \u00a7 16-62-105. Rule 25 does not determine whether a cause a action survives the death of a party, permit a claim which is otherwise barred by law, or extend the statute of limitations. See Nix, 342 Ark. at 653, 30 S.W.3d at 748. It simply governs the procedure for obtaining a substitution of a party upon a party\u2019s death where the cause of action survives, the claims in the action are otherwise permitted by law, and the motion is made within the time limits prescribed in Ark. Code Ann. \u00a7 16-62-108.\nWe will not reverse a circuit court\u2019s decision on the basis of an argument not raised by the appellant. See Cummings v. Boyles, 242 Ark. 923, 415 S.W.2d 571 (1967). We note that, while appellant did not specifically cite our 1986 per curiam opinion deeming Ark. Code Ann. \u00a7 16-62-105(a) - (e) superseded by the Arkansas Rules of Civil Procedure, he did argue that the circuit court\u2019s order pursuant to Rule 25 properly revived his action and that an order pursuant to the revivor statutes, including section 105, was unnecessary. He is correct, and it is this very point upon which we reverse. See, e.g., Littles v. Flemings, 333 Ark. 476, 970 S.W.2d 259 (1998) (a court does not act sua sponte when its reversal is \u201cprompted\u201d by appellant\u2019s argument).\nWe hold that the circuit court\u2019s order pursuant to Rule 25 properly revived appellant\u2019s action; accordingly, we hold that the circuit court erred in granting appellees\u2019 motion to dismiss.\nReversed and remanded.\nIn re Statutes Deemed Superseded by the Arkansas Rules of Civil Procedure, 290 Ark. 616, 719 S.W.2d 436 (1986).\nWe note that the A.C.R.C. Notes to Ark. Code Ann. \u00a7 16-62-105 (Repl. 2005) include a reference to In re Statutes Deemed Superseded by the Arkansas Rules of Civil Procedure, 290 Ark. 616, 719 S.W.2d 436 (1986).", "type": "majority", "author": "Jim Gunter, Justice." } ], "attorneys": [ "David A. Couch, PLLC, by: David A. Couch, for appellant.", "Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Stuart P. Miller and Jeffrey W. Hatfield; and Barber, McCaskill, Jones & Hale, P.A., by: G. Spence Fricke, for appellees." ], "corrections": "", "head_matter": "Ronnie DEAVER as Administrator of the Estate of Faye Deaver v. FAUCON PROPERTIES, INC. d/b/a St. Andrews Place; St. Andrews Place, Inc. d/b/a St. Andrews Place; and William A. Mainord\n06-320\n239 S.W.3d 525\nSupreme Court of Arkansas\nOpinion delivered September 21, 2006\nDavid A. Couch, PLLC, by: David A. Couch, for appellant.\nMitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Stuart P. Miller and Jeffrey W. Hatfield; and Barber, McCaskill, Jones & Hale, P.A., by: G. Spence Fricke, for appellees." }, "file_name": "0288-01", "first_page_order": 312, "last_page_order": 320 }