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Johnson v. Greene Acres Nursing Home Association12/1/2005
Appellant, Billy Dale Johnson, appeals from an order of the Greene County Circuit Court, granting summary judgment in favor of the appellees: Greene Acres Nursing Home, Paragould Nursing & Rehabilitation Center, Dr. Mack Shotts, and Dr. Dwight Williams. The circuit court's order dismissed appellant's complaint, which involved allegations of medical malpractice in the care and treatment of his mother, Gracie Mears, prior to her death. The circuit court determined that appellant was not the executor of the estate at the time the complaint was filed; therefore, the complaint was a nullity. Because no complaint was filed by a person vested with authority to act on behalf of the estate within the two-year statute- of-limitations period, the court granted summary judgment and dismissed the case. We affirm.
We set forth our standard of review of a circuit court's order granting summary judgment in Jordan v. Diamond Equipment & Supply Co., __ Ark. __, __ S.W.3d __ (April 28, 2005), stating:
Summary judgment should be granted only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Riverdale Development Co. v. Ruffin Building Systems Inc., 356 Ark. 90, 146 S.W.3d 852 (2004); Craighead Elec. Coop. Corp. v. Craighead County, 352 Ark. 76, 98 S.W.3d 414 (2003); Cole v. Laws, 349 Ark. 177, 76 S.W.3d 878 (2002). The burden of sustaining a motion for summary judgment is the responsibility of the moving party. Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). Once the moving party has established a prima facie entitlement to summary judgment, the non-moving party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidence presented by the moving party in support of its motion leaves a material fact unanswered. George v. Jefferson Hosp. Ass'n Inc., 337 Ark. 206, 987 S.W.2d 710 (1999). We view the evidence in the light most favorable to the non-moving party, resolving all doubts and inferences against the moving party. Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998).
Jordan, supra.
The following facts in this case are undisputed. Gracie Mears died on November 23, 2001. Her two sons survived her. On March 22, 2002, appellant, one of her sons, was appointed as the executor of her estate. On October 25, 2002, upon appellant's petition, the probate division of the circuit court entered an Order Approving Final Accounting or Waiver of Final Accounting, Distribution and Discharging Executor. In the order, the court stated that
the Executor and his sureties be and the same are hereby released and discharged from their trust herein and any and all liability or accountability thereunder, and the administration of the estate is closed subject to the payment of the claims as filed herein represented to be paid from proceeds of private sale after set off as herein provided. This estate shall remain open pending a determination of potential litigation of personal injury and/or mal-practice claims pending, etc.
On July 8, 2003, appellant filed a petition to re-open the estate in order to file this lawsuit. On July 25, 2003, before an order reappointing him as executor was entered, appellant, in his capacity as the executor of Ms. Mears's estate, filed a complaint against the appellees, alleging that Ms. Mears's death was the result of the individual and combined acts of negligence of the appellees. Each of the appellees filed a motion for summary judgment, arguing that appellant lacked standing to bring the cause of action, as he wa
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