JONES (MILDRED), ET AL. VS. BAPTIST HEALTH CARE SYSTEM, INC. , ET AL.Annotate this Case
RENDERED: AUGUST 15, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
MILDRED JONES AND JAMES JONES
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MITCH PERRY, JUDGE
ACTION NO. 04-CI-006125
BAPTIST HEALTH CARE SYSTEM, INC.,
D/B/A BAPTIST HOSPITAL EAST AND
JOSEPH WARNER, JR., M.D.
** ** ** ** **
BEFORE: DIXON AND NICKELL, JUDGES; KNOPF,1 SENIOR JUDGE.
NICKELL, JUDGE: Mildred Jones (“Mrs. Jones”) and her husband, James Jones
(“Mr. Jones”) (collectively “Joneses”) have appealed from the Jefferson Circuit
Court’s dismissal of their claims for medical negligence and loss of consortium
Senior Judge William L. Knopf sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
against Baptist Health Care System, Inc., d/b/a Baptist Hospital East (“Baptist
East”) and Dr. Joseph Werner, Jr. (“Dr. Werner”), for failing to revive the action
within one year of Mrs. Jones’ death. We affirm.
On July 22, 2004, the Joneses filed a complaint for medical
negligence and loss of consortium resulting from a surgical sponge being left
inside Mrs. Jones following an operation performed by Dr. Werner at Baptist East
on July 26, 2003. Mrs. Jones unexpectedly passed away on December 22, 2005.
Following her death, an estate was opened in the Jefferson Probate Court, and Mr.
Jones was named a personal representative for the estate in May 2006. In
September 2006, counsel for the Joneses was informed that Mr. Jones was
exhibiting peculiar behavior and his competency was questionable.
Pursuant to the direction of the probate court, Mr. Jones was
subsequently evaluated and found to be incompetent to serve as personal
representative of the estate. A formal, written opinion to that effect was rendered
by Dr. George Bensenhaver (“Dr. Bensenhaver”) on January 15, 2007. On January
17, 2007, a petition was filed in the probate court to remove Mr. Jones as personal
representative and substitute his stepdaughter, Mary Jo Erhard (“Erhard”), in his
stead. The petition was granted on January 25, 2007.
In the interim, however, on January 9, 2007, and January 11, 2007,
respectively, Dr. Werner and Baptist East filed separate motions to dismiss the suit
based on the Joneses failure to revive the action within one year of Mrs. Jones’
death as mandated by KRS2 395.278. On January 18, 2007, the Joneses filed a
response to the motions to dismiss, accompanied by a motion to revive and
substitute parties.3 They argued the time limit set forth in KRS 395.278 should be
equitably tolled because of Mr. Jones’ disability, and alternatively, that Baptist
East and Dr. Werner should be equitably estopped from seeking dismissal because
counsel for Baptist East and Dr. Werner allegedly agreed to the late filing of the
motion for revival and substitution.4 Baptist East and Dr. Werner filed reply
memoranda in support of their motions to dismiss, and both denied any
conversations occurred regarding the untimely filing of the motion to revive.
The trial court heard oral arguments on all pending motions on
February 16, 2007. On February 22, 2007, the trial court entered an order granting
the motions to dismiss, specifically finding Mr. Jones’ disability did not justify an
equitable tolling of the time requirements of KRS 395.278, and the facts presented
did not justify equitable estoppel of the dismissal. The Jones’ subsequent motion
to alter, amend or vacate was denied, and this appeal followed.
Kentucky Revised Statutes.
The Joneses also filed a motion to order mediation of the matter. However, no argument is
advanced on appeal regarding the denial of this motion, and we therefore deem the Joneses have
waived further discussion thereof.
Before the trial court, the Joneses argued Dr. Werner should also be estopped from seeking
dismissal on the same grounds as Baptist East. However, no argument is advanced on appeal
regarding this alleged estoppel. We therefore deem the Joneses to have waived such argument
and will not discuss it further.
Two issues are presented for determination in this appeal. First,
whether the trial court erred in finding the doctrine of equitable tolling does not
apply to the time limitation set forth in KRS 395.278, and second, whether the trial
court erred in finding Baptist East was not equitably estopped from seeking
dismissal. After a careful review of the record and the pertinent law, we believe no
When a party dies during the pendency of an action in a Kentucky
court, the matter is abated unless and until it is revived by substituting the personal
representative of the deceased. CR5 25.01(1).6 Further, CR 25.01 must be read in
conjunction with KRS 395.278, which directs that an “application to revive an
action shall be made within one (1) year after the death of a deceased party.” In
Snyder v. Snyder, 769 S.W.2d 70, 72 (Ky.App. 1989), we held that KRS 398.278
was” a statute of limitation, rather than a statute relating to pleading, practice or
Kentucky Rules of Civil Procedure.
CR 25.01(1) states:
If a party dies during the pendency of an action and the claim is not
thereby extinguished, the court, within the period allowed by law,
may order substitution of the proper parties. If substitution is not
so made the action may be dismissed as to the deceased party. The
motion for substitution may be made by the successors or
representatives of the deceased party or by any party, and, together
with the notice of hearing, shall be served on the parties as
provided in Rule 5, and upon persons not parties as provided in
Rule 4 for the service of summons. Upon becoming aware of a
party's death, the attorney(s) of record for that party, as soon as
practicable, shall file a notice of such death on the record and serve
a copy of such notice in the same manner provided herein for
service of the motion for substitution.
procedure, and the time limit within this section is mandatory and not
discretionary, thereby preventing a party or the court from extending such
time. . . .” Further, as was correctly noted by the trial court, “the rule is that the
action must be brought within one year from the date of the death and not one year
from the appointment of an administrator.” New Farmer’s National Bank v.
Thomas, 411 S.W.2d 672, 674 (Ky.App. 1967). Therefore, if an action is not
revived within one year of a litigant’s death and the personal representative
substituted as a real party in interest, the suit must be dismissed.
Whether a reviver has been timely filed is a matter of law and we thus
review a trial court’s order de novo. Cinelli v. Ward, 997 S.W.2d 474 (Ky.App.
1998). Here, Mrs. Jones died on December 22, 2005, thus making the deadline for
filing a motion for reviver December 22, 2006. Although Mr. Jones had been
appointed as personal representative of the estate in May 2006, no motion to revive
the case was filed until eight months later on January 18, 2007, which was nearly a
month after the one year deadline had expired. The Joneses acknowledge that the
motion for reviver was untimely filed.
The Joneses first contend Mr. Jones’ disability was sufficient to toll
the running of the statute of limitations, especially as they acted with due diligence
to remove and replace him as the personal representative. They claim they were
required by the probate court pursuant to KRS 395.160 to obtain a medical opinion
as to Mr. Jones’ incompetency prior to his removal and replacement. They thus
argue the time necessary to procure the medical opinion should not count against
them. We disagree.
Apart from stating Mr. Jones needed time to “get over” the death of
his wife, no reason was given for the nearly six month delay in obtaining his
appointment as administrator of the estate nor for the four month delay between his
appointment and the request for his removal. Likewise, the Joneses offer no reason
for failing to inform or seek advice from the circuit court on the competency issue.
However, we are convinced from our reading of the clear statutory language and
the case law interpreting the same that the circuit court has no authority to enlarge
the time allowed for filing a reviver, even in the face of excusable neglect. See
Snyder, supra; Hammons v. Tremco, Inc., 887 S.W.2d 336 (Ky. 1994). Further, it
is well-settled that once a limitations period begins to run, an intervening disability
does not toll the prescribed period of limitation. New Farmer’s Bank, supra, 411
S.W.2d at 674 (citing Elkhorn Land & Improvement Co. v. Wallace, 232 Ky. 741,
24 S.W.2d 560 (1930); 34 Am.Jur. 160, Limitation of Actions, sec. 199). The
Joneses cite us to no authority supportive of their position that equitable tolling
applies to the time limitation set forth in KRS 395.278, and we find no such
authority exists. Therefore, as the Joneses failed to revive the action within the
prescribed time period of one year following Mrs. Jones death, the trial court acted
correctly in finding equitable tolling inapplicable and dismissing the action.
Finally, the Joneses contend Baptist East should have been estopped
from seeking dismissal. They argue they presented clear and convincing evidence
to the trial court that counsel for Baptist East communicated and agreed to the late
filing of the motion to revive and substitute parties, and therefore under Harris v.
Jackson, 192 S.W.3d 297, 304 (Ky. 2006), a finding of equitable estoppel was
mandated. Again, we disagree.
The trial court heard evidence regarding the alleged communications
between counsel and determined estoppel was inapplicable based upon the facts
presented. A careful review of the record reveals the trial court was presented with
conflicting testimony from respected attorneys. As in any factual dispute, even if
there is substantial and credible testimony presented on both sides of the issue, a
trial court’s findings of fact will not be disturbed on appeal absent clear error as the
trial court is in the best position to judge the credibility of the witnesses and the
testimony given. CR 52.01; Bronk v. Commonwealth, 58 S.W.3d 482, 487 (Ky.
2001), R.C.R. v. Com. Cabinet for Human Resources, 988 S.W.2d 36 (Ky.App.
1998). We hold the trial court’s decision was based upon substantial evidence and
we will thus not disturb it on appeal. Further, as we noted above, since neither the
court nor a party may enlarge the time for reviver, if the Joneses’ relied upon any
alleged agreement, such reliance was at their own peril. The Joneses have failed to
convince this Court that estoppel was required under the facts presented.
For the foregoing reasons, the judgment of the Jefferson Circuit Court
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE, BAPTIST
HEALTH CARE SYSTEM, INC.:
Christopher P. O’Bryan
Melissa F. Calabrese
BRIEF FOR APPELLEE, JOSEPH
WERNER, JR., M.D.:
Daniel G. Brown