Brewer v. Poole4/21/2005
Appellants Jeffrey Dean Brewer, Justin Ryan Kelley, James Dwight Kelley, Daniel Joseph Brewer, Kaleigh Madison Brewer, Tommy Wayne Harberson, Treva J. Harberson, Becky Cecil, and Karen Dugan appeal from an order that dismissed their claims for the wrongful death of the deceased, Diann Brewer, against appellees Marvin Poole, M.D., and Joseph P. McCarty, M.D. On appeal, the appellants argue that the circuit court erred in finding that where no personal representative has been appointed, a wrongful-death suit must be filed with all the statutory beneficiaries joined as parties to the suit. They further argue that the circuit court deprived them of a substantial property right by retroactively applying this court's holding in Ramirez v. White County Circuit Court, 343 Ark. 372, 38 S.W.3d 298 (2001), to a cause of action that arose in 1997. Additionally, the appellants contend that the circuit court erred in refusing to allow their third-amended complaint to relate back to the date of the filing of the original complaint. Finally, the appellants argue that the rule requiring all heirs to file suit is not based on sound policy, and they urge this court to reconsider the Ramirez decision.
The court of appeals certified this case to this court. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b)(1), (4), and (5). We find no error and, accordingly, we affirm.
Facts
Diann Brewer died on January 7, 1996, survived by her husband, three sons, a daughter, her parents, and two sisters. No estate was opened and no personal representative was named. In December 1997, Ms. Brewer's husband, children, and parents filed suit against the appellees, alleging wrongful-death due to medical malpractice. Ms. Brewer's two sisters, Becky Cecil and Karen Dugan, were not named as plaintiffs to the suit.
On February 15, 2002, defense counsel sent a Request for Admission of Fact to the plaintiff's attorney, asking for the plaintiffs to admit that the decedent was survived and remained survived by two sisters. The plaintiffs did not respond to the request. However, on March 25, 2002, the plaintiffs filed a third-amended complaint, adding Ms. Cecil and Ms. Dugan as plaintiffs.
On March 27, 2002, separate defendants Dr. Poole and Dr. McCarty filed a joint motion to dismiss the plaintiff's complaint, contending that neither of the decedent's surviving sisters were parties to the original and amended complaints filed prior to March 25, 2002; that Arkansas Code Annotated 16-62-102(b) requires a wrongful-death action to be brought by all of the heirs at law of the deceased person; and that by the time the third-amended complaint was filed naming the two sisters, the statute of limitations barred any action by the plaintiffs. The circuit court granted the motion to dismiss, and this appeal followed.
Standard of Review
When reviewing a circuit court's order granting a motion to dismiss, we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. See Preston v. University of Arkansas for Medical Sciences, 354 Ark. 666, 128 S.W.3d 430 (2003). In testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and all pleadings are to be liberally construed. See id. Further, if there is any reasonable doubt as to the application of the statute of limitations, this court will resolve the question in favor of the complaint standing and against the challenge. State v. Diamond Lakes Oil Co., 347 Ark. 618, 66 S.W.3d 613 (2002).
Wrongful Death Act
Section 16-62-102 provides in part:
(a)(1) Whenever the death
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