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Wooley v. Planter's Cotton Oil Mill6/1/2005
Appellant Ann Wooley appeals the order of the Jefferson County Circuit Court dismissing her wrongful-death and survival action against appellee Continental Eagle Corporation as not having been properly revived within one year as provided by Ark. Code Ann. §§ 16-62-108 and 109 (1987). She also brings up for review the summary judgments in favor of appellees Planters Cotton Oil Mill, Inc. ("Planters"), and Cotton Handlers Manufacturing, Inc. ("Cotton Handlers"). We find no error and affirm.
The facts are not in dispute. In August 1999, the decedent, Raymond Wooley, was on the premises of Planters as an independent contractor to perform electrical work on Planters's machinery. In order to work on the machinery, decedent placed his ladder next to the machine and climbed to the top of the machine. Decedent fell approximately twenty-five feet and sustained severe head injuries. On January 16, 2003, he died as a result of these injuries. Wooley, in her capacity as the decedent's wife and next friend, originally filed suit against Planters for decedent's personal injuries prior to his death. The complaint was subsequently amended to include allegations of negligence against Cotton Handlers, a contractor performing work at the site at the time of the decedent's accident, and allegations of negligent design, strict liability, and breach of warranty against Continental, the manufacturer of the machine decedent was attempting to repair.
After the trial court granted the motions for summary judgment filed by Planters and Cotton Handlers in separate orders entered on September 4, 2002, the case continued against Continental. Decedent died on January 16, 2003. On August 14, 2003, Wooley amended her complaint to state that she had been appointed administratrix of the decedent's estate and to assert an additional cause of action for the decedent's wrongful death. Continental generally denied the allegations and asserted the affirmative defenses of lack of jurisdiction (both personal and subject-matter), insufficiency of process and service of process, and improper venue.
On March 24, 2004, Continental filed a "Motion to Strike and to Dismiss," alleging that the action abated upon the decedent's death and that Wooley failed to revive the action within one year as required by Ark. Code Ann. §§ 16-62-108 and 109 (1987). As an exhibit to the motion, Continental attached the affidavit of Earnest Edwards, its vice president of engineering, stating that decedent died on January 16, 2003, and that Continental had not been served with an order reviving the action. On April 8, 2004, Wooley filed a "Motion for Revivor," asserting that Continental had impliedly consented, or waived any objection, to the revivor by continuing to defend the action without objection and by failing to raise the issue in its answer to the amendment to the complaint following decedent's death. Continental filed a "Response and Objection to Plaintiff's Motion for Revivor."
The trial court entered an order finding that Wooley failed to revive the action within one year of the decedent's death, that Continental did not consent to the revival of the action, and that all claims arising out of the decedent's accident should be dismissed with prejudice. Wooley filed a motion seeking reconsideration of the dismissal based on Continental's implicitly consenting, or being estopped from objecting, to the revivor. The trial court denied the motion. This appeal followed.
Wooley raises three points on appeal: that the trial court erred in granting summary judgment to Planters; that the trial court erred in granting summary judgment to Cotton Handlers; and that the trial court erred in granting Continental's motion to
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