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Brown v. Pine Bluff Nursing Home12/2/2004
Code Ann. § 16-56-116 (Supp. 2003), the statute of limitations should be tolled due to Thomas's mental incompetence.
After a hearing, the trial court granted the nursing home's summary-judgment motion on September 19, 2003, finding that it and Townsend were not properly served within the extended time for service. In addition, the court found that Brown's wrongful death claim was barred by the three-year statute of limitations, see Ark. Code Ann. § 16-62-102(c)(1) (1987 & Supp. 2003), because the wrongful death claim was derivative of the initial complaint alleging negligence. The court also rejected Brown's savings-statute argument, ruling that the savings statute applied only to common-law actions, and did not toll the statute of limitations for a wrongful death claim. Therefore, the court dismissed Brown's amended complaint with prejudice.
On appeal, Brown argues that the trial court erred in holding that her wrongful death action was barred; she also contends that Thomas's incompetence tolled the statute of limitations. The parties agree that this appeal presents purely questions of law, and that the appropriate standard of review is therefore de novo. See Sanford v. Sanford,355 Ark. 274, 127 S.W.3d 486 (2003) (a trial court's conclusion on a question of law is given no deference on appeal); Murphy v. City of West Memphis, 352 Ark. 315, 101 S.W.3d 221 (2003); City of Lowell v. M & N Mobile Home Park, Inc., 323 Ark. 332, 916 S.W.2d 95 (1996).
We must affirm the trial court's decision because Brown's wrongful death claim was derivative of her negligence action, and the negligence action was subject to dismissal with prejudice. It is undisputed that Brown's July 8, 2002, complaint contained the same negligence allegations set out in her first suit, which she voluntarily nonsuited. However, Brown never properly served the July 8, 2002, complaint alleging negligence within the extended time for service, which would have been on or before February 3, 2003. Therefore, Rule 4(i) of the Arkansas Rules of Civil Procedure mandates dismissal of the negligence claim, and, because it was a second dismissal, Ark. R. Civ. P. 41(b) dictates that the dismissal operates as an adjudication of the merits, making the dismissal with prejudice.
Because the negligence action was dismissed with prejudice, the dismissal amounted to a final judgment. See Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003) ("Pursuant to Rule 41(b), the second dismissal was an adjudication on the merits"); Curry v. Hanna, 228 Ark. 280, 283, 307 S.W.2d 77, 80 (1957) ("The rule appears to be well established that a `dismissal with prejudice' is equivalent to a final judgment insofar as the application of the doctrine of res judicata is concerned"); Seaboard Finance Co. v. Wright, 223 Ark. 351, 266 S.W.2d 70 (1954) (a dismissal with prejudice is a "final adjudication on the merits" for purposes of res judicata).
The negligence alleged in Brown's complaints also formed the underlying cause of the wrongful death action alleged in her May 9, 2003, amended complaint. However, this court has held, as recently as this year, 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. See Estate of Hull v. Union Pacific R.R., 355 Ark. 547, 141 S.W.3d 356 (2004); see also Simmons First National Bank v. Abbott, 288 Ark. 304, 705 S.W.2d 3 (1986). In Estate of Hull, there was an accident involving a train and a car in March of 1996; Sharon Hull's guardian entered into a settlement with the railroad. As part of the settlement, the guardian executed a re
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