Dora Gillean et al., Heirs at Law of Olen Gillean, Deceased v. HealthSouth of Fort Smith, Inc. d/b/a HealthSouth Rehabilitation Hospital of Fort Smith and Bradley M. Short, D.O.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
 

DIVISION IV

CA03-551

January 7, 2004

DORA GILLEAN, et al., Heirs at Law

of OLEN GILLEAN, Deceased AN APPEAL FROM SEBASTIAN COUNTY

APPELLANTS CIRCUIT COURT, Fort Smith District

v. [CIV-2000-1010 (II)]

HEALTHSOUTH OF FORT SMITH, HONORABLE JAMES R. MARSCHEWSKI,

INC. d/b/a HealthSouth Rehabilitation CIRCUIT JUDGE

Hospital of Fort Smith and

BRADLEY M. SHORT, D.O. AFFIRMED

APPELLEES

Larry D. Vaught, Judge

The trial court dismissed this wrongful-death case because the suit was not brought by all of the heirs at law of Olen Gillean, deceased. On appeal, appellants contend that the trial court improperly granted the motion to dismiss because all of the heirs were joined or the heir who was not joined in the suit had died before appellees filed their motions to dismiss and, therefore, appellees were not prejudiced by the failure to file the action with all of the heirs. We affirm.

From October 14, 1998, to December 4, 1998, after suffering a stroke, Olen Gillean received medical care and rehabilitation services from appellee Dr. Bradley Short at appellee Healthsouth of Fort Smith, Inc.'s rehabilitation hospital. Because of a deterioration of Gillean's condition, he was transferred to a medical facility in Oklahoma on December 4, 1998, and died there on December 15, 1998. Appellants Dora Gillean, Mary Graham, Martha Sprabery, Margie Gillean, Marvin Gillean, and Marcie Call are, respectively, the widow and adult children of the deceased. Appellants filed this wrongful-death action against appellees on November 20, 2000. Appellees answered, denying the allegations of the complaint. At the time of his death, the deceased was survived by a half-sister, Dorothy Leonard1, who had not been named as a plaintiff in the lawsuit. Appellees moved to dismiss the complaint, alleging that, because appellants failed to join all of the heirs at law, the action was barred by the statute of limitations. The trial court found that the complaint was not in compliance with Ark. Code Ann. § 16-62-102 (Supp. 1997)2, and was barred by the applicable statute of limitations. Therefore, the trial court dismissed appellants' complaint, and this appeal followed.

Appellants argue one point: that the trial court erred in dismissing their lawsuit. Appellants divide their argument into two subparts: that all of the heirs did join the lawsuit and that appellees have waived the issue of Dorothy Leonard not being named as a plaintiff.

When reviewing a trial court's decision on a motion to dismiss, the facts alleged in the complaint are treated as true and are viewed in the light most favorable to the plaintiff. Goff v. Harold Ives Trucking Co., Inc., 342 Ark. 143, 27 S.W.3d 387 (2000). All reasonable inferences must be resolved in favor of the complaint, and the pleadings are to be liberally construed. Martin v. Equitable Life Assur. Soc'y of the U.S., 344 Ark. 177, 40 S.W.3d 733 (2001). A party who relies upon a statute of limitations as defense to a claim has the burden of proving that the full statutory period has run on the claim before the action was commenced. Davenport v. Pack, 35 Ark. App. 40, 812 S.W.2d 487 (1991). In order toprevail on a motion to dismiss on the basis of limitations, the complaint must be barred on its face. Id.

For the first part of their argument, appellants, citing the intestate succession sections of the probate code, Ark. Code Ann. §§ 28-9-201 through -214, argue that, because the decedent died intestate, Dorothy Leonard is not an "heir" in the strict sense of that term and, therefore, the action can proceed without her having been named as a plaintiff. We disagree.

In Arkansas, a wrongful-death action must be brought by and in the name of the personal representative of the deceased person. Ark. Code Ann. § 16-62-102(b). If there is no personal representative, then the action shall be brought by the heirs at law of the deceased person. Id. A wrongful-death action is a creation of statute and exists only in the manner and form prescribed by the statute; thus, the wrongful-death statute must be strictly construed and nothing may be taken as intended that is not clearly expressed. Ramirez v. White County, 343 Ark. 372, 38 S.W.3d 298 (2001). In applying all of the standard rules of statutory construction, the supreme court held that the language of Ark. Code Ann. § 16-62-102(b) was clear and unambiguous. Id. If there is no personal representative of the deceased person, then a wrongful-death action must be brought by all of the heirs at law. Id. An action brought by less than all of the heirs of the deceased is a nullity. St. Paul Mercury Ins. Co. v. Circuit Court of Craighead County, 348 Ark. 197, 73 S.W.3d 584 (2002).

In the instant case, an estate was never opened for Olen Gillean, and no personal representative was ever appointed as administrator of the estate. Consequently, to be proper, any wrongful-death action stemming from the death of Olen Gillean had to be brought by all of his heirs at law. Ark. Code Ann. § 16-62-102(b); Ramirez v. White County, supra; St. Paul Mercury Ins. Co. v. Circuit Court of Craighead County, supra. Appellants argue that because, under Ark. Code Ann. § 28-9-214(1), the decedent's children are entitled to the intestate estate, Dorothy Leonard is not an "heir" and there has been compliance with section16-62-102(d). However, that argument ignores the language of section 16-62-102(d), which defines the parties in interest in a wrongful-death suit as follows: "[t]he beneficiaries of the action created in this section are the surviving spouse, children ... brothers and sisters of the deceased person...." Ark. Code Ann. § 16-62-102(d) (emphasis added). The supreme court has construed the term "heirs at law" as used in section 16-62-102(b) to mean all of the beneficiaries of the wrongful-death suit. Davenport v. Lee, 348 Ark. 148, 72 S.W.3d 85 (2002). Furthermore, Ark. Code Ann. § 16-62-102(e) provides that "[n]o part of any recovery referred to in this section shall be the subject of the debts of the deceased or become, in any way, a part of the assets of the estate of the deceased person." Therefore, appellants' reliance on the probate code is misplaced. Because all of the statutory beneficiaries did not join in the suit, the suit was a nullity, Davenport v. Lee, supra, and the statute of limitations has expired because it has been more than two years since the cause of action accrued without a "proper" complaint being filed.

As the second part of their argument, appellants argue that appellees have waived this argument because Dorothy Leonard died in January 2003, before appellees filed their motion to dismiss. Arguing that, because a wrongful-death claim abates upon the death of a statutory beneficiary, Murrell v. Springdale Memorial Hospital, 330 Ark. 121, 952 S.W.2d 153 (1997), appellants state that, following Dorothy Leonard's death, all of the heirs of Olen Gillean are now joined as plaintiffs. The trial court did not consider the argument as having been waived by appellees. Instead, the trial court likened the issue to subject-matter jurisdiction, which can be raised at any time. See Judkins v. Hoover, 351 Ark. 552, 95 S.W.3d 768 (2003).

In McKibben v. Mullis, 79 Ark. App. 382, 90 S.W.3d 442 (2002), this court, relying on St. Paul Mercury Insurance Co. v. Circuit Court of Craighead County, supra, held that the trial court did not err in dismissing a wrongful-death complaint filed by the surviving spouse as executor when he had not been appointed executor until some six months after the complaint was filed and there were other heirs who had not joined in the complaint. This court held that the husband's subsequent appointment as executor did not relate back to the filing of the original complaint because the original filing was a nullity due to the fact it was not properly filed. The fact that Dorothy Leonard has died cannot be used to relate back and cure the defects in the original filing of the complaint. This is consistent with the general rule that a person's heirs are determined as of the date of death. See Sutton v. Milburn, 289 Ark. 421, 711 S.W.2d 808 (1986).

Affirmed.

Robbins and Crabtree, JJ., agree.

1 We express no opinion on the issue of whether Dorothy Leonard's status as a half-sister of the deceased is of any significance under Ark. Code Ann. § 16-62-102(b). The issue was not raised either before the trial court or on appeal.

2 Section 16-62-102(d) was amended by Act 1581 of 2001 to make it clear that persons who stood in loco parentis to the deceased and persons to whom the deceased stood in loco parentis were beneficiaries under the statute, regardless of age. We have referred to section 16-62-102 as in effect at the time of the decedent's death.