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NIX v. ST. EDWARD MERCY MEDICAL CENTER11/16/2000
On February 20, 1998, appellant Dean Floyd Nix filed a medical-malpractice action individually and as his wife's guardian against appellees, St. Edward Mercy Medical Center, T.C. Kelly, M.D., Cooper Clinic, P.A., and John Does 1-4, for medical injuries allegedly sustained in February 1996 by his wife, Gloria Rose Nix. Approximately four months after the complaint was filed, Mrs. Nix died on June 28, 1998, pendente lite. Thirteen months later, appellees filed a motion to strike the abated action from the trial court's docket pursuant to Ark. Code Ann. sections 16-62-108 and 16-62-109 (revival-of-action statutes). Citing the supersession rule, appellant argued that Ark.R.Civ.P. 25 superseded the statutes because the statutes and the court's rule concerning substitution of parties conflicted. See Arkansas Court Rules at 723 (2000). Pursuant to Rule 25, Nix contended that, at most, dismissal without prejudice was warranted.
During a hearing on November 1, 1999, the trial court reasoned that the supersession rule did not apply because section 16-62-108 imposed a substantive limitation on revival that could not be superseded by the procedural Rule 25. Thus, the trial court determined that the action had abated and was no longer capable of being revived pursuant to section 16-62-108. The court further concluded that Nix's claim for loss of consortium had abated because it was derivative of his wife's claim. In reaching its decision, the court noted that, although Nix filed the action individually and
as his wife's guardian, Gloria Nix was the "real party in interest." Moreover, there was no suggestion of death on the record and no application for an order to revive the action. Reluctantly, the trial court dismissed appellant's action with prejudice in accordance with section 16-62-109. The instant appeal followed.
Our jurisdiction is authorized pursuant to Ark. R. Sup. Ct. 1-2(d)(2) and 1-2(b)(1), (5), and (6) (2000). The Court of Appeals certified this case for us to consider a significant issue of first impression and one needing clarification of the law. Appellant's sole point on appeal challenges the trial court's conclusion that Ark. Code Ann. sections 16-62-108 and 16-62-109 (1987) are not superseded by Ark.R.Civ.P. 25. We find no merit in appellant's arguments, and we affirm the trial court's order dismissing appellant's complaint with prejudice.
Sections 16-62-108,16-62-109, and Ark.R.Civ.P. 25
Arkansas Code Annotated section 16-62-108 requires a plaintiff's representative or successor to revive an action within one year from the time the order might first have been made, unless the defendant consents. Section 16-62-109 directs the court to strike an action from the docket if it appears "by affidavit that either party to an action has been dead, or, where he sues or is sued as a personal representative, that his powers have ceased for a period so long that the action cannot be revived in the names of his representatives or successor without the consent of both parties." Significantly, a resulting dismissal is with prejudice. Here, the parties agree that appellant failed to revive the action pursuant to section 16-62-108. However, the parties disagree as to whether Ark.R.Civ.P. 25 permits appellant to substitute himself as a party beyond the statutory limitation and achieve a dismissal without prejudice.
In support of his position, appellant cites our supersession rule, which provides that:
All laws in conflict with the Arkansas Rules of Civil Procedure, Rules of Appellate Procedure and Rules for Inferior Courts shall be deemed superseded as of the effective dates of these rules.
Arkansas Court Rules at 723 (20
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