Brown v. Pine Bluff Nursing Home12/2/2004
In January of 1998, Ed Thomas was admitted to the Pine Bluff Nursing and Rehabilitation Center ("the nursing home"). Thomas was a seventy-two-year-old man who had been diagnosed with dementia and declared incapacitated. On January 24, 1998, Thomas wandered away from the nursing home; tragically, he was never found. On September 14, 2000, Thomas's daughter and guardian, appellant Edna Thomas Brown, filed a negligence suit against the nursing home, naming Pine Bluff Nursing Home and Stan Townsend, a part owner of the company that owned the nursing home. The complaint was served on Townsend; he and the nursing home answered, and discovery commenced. However, Brown voluntarily dismissed that suit on July 19, 2001.
On July 8, 2002, less than twelve months later, Brown filed a second complaint against Pine Bluff Nursing Home and Stan Townsend, wherein she again alleged that the nursing home "negligently cared for Ed Thomas in such a manner as to be the proximate cause of his probable death." On November 4, 2002, Brown filed a motion to extend the time for service of process, claiming the nursing home's agent for service had changed addresses. The trial court granted Brown an extension order, which was entered on November 5, 2002. Nonetheless, the nursing home was never served with a summons. However, counsel for the nursing home and Townsend became aware of the suit as a result of a letter mailed to the nursing home's administrator, Deborah York, who was not a registered agent for service. Nonetheless, the nursing home and Townsend filed an answer on December 2, 2002, and a motion for summary judgment on April 10, 2003. Both the nursing home and Townsend alleged that Brown had never properly served the complaint on either party; therefore, they argued, Brown's second lawsuit should be dismissed with prejudice.
On May 1, 2003, more than five years after Ed Thomas's disappearance, the Jefferson County Probate Court declared him to be deceased, pursuant to Ark. Code Ann. § 16-40-105; the court appointed Brown as personal representative of Thomas's estate. On May 9, 2003, Brown filed an amended complaint again alleging negligence; in addition, she alleged for the first time a wrongful death claim under Ark. Code Ann. § 16-62-102. This time, Brown's complaint was properly served, and on May 16, 2003, the nursing home filed a motion to dismiss the amended complaint, reiterating the failure-of-service contentions raised in its previous motion for summary judgment.
In her response to the nursing home's motion to dismiss, Brown argued that, since the filing of the nursing home's motion for summary judgment, the facts had changed. In particular, she pointed out that, due to the probate court's declaration that Thomas was dead, she had a wrongful death claim that had not previously existed. Brown also noted that her complaint in the first suit contained neither a wrongful death claim nor a statutory survival claim, and that neither cause of action could have been pled prior to the declaration of Thomas's death. Because the May 9, 2003, amended complaint involved allegations of fact that occurred after the July 8, 2002, complaint was filed, she claimed, the amended complaint should properly be classified as a supplementary pleading under Ark. R. Civ. P. 15(d), as opposed to an amended pleading under Ark. R. Civ. P. 15(a). In addition, Brown argued that no wrongful death cause of action accrued until May 1, 2003, when the trial court declared Thomas dead; therefore, she contended, in the event the court decided to grant the nursing home's motion to dismiss, such dismissal should be without prejudice under Ark. R. Civ. P. 41(a). In a supplemental response, Brown further argued that, under Ark.
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