Crenshaw v. The Special Adm'R of the EState Ken Ayers
| Decision Date | 19 May 2011 |
| Docket Number | No. 11-8,11-8 |
| Parties | HUNTER CRENSHAW APPELLANT v. THE SPECIAL ADMINISTRATOR OF THE ESTATE OF STEVEN KEN AYERS, DECEASED APPELLEE |
| Court | Arkansas Supreme Court |
AFFIRMED.
Hunter Crenshaw appeals a September 14, 2010 order entering summary judgment that dismissed with prejudice his lawsuit against Steven Ayers for failure to commence the lawsuit within the applicable statute of limitations. Crenshaw asserts that the circuit court erred in dismissing his lawsuit because service of his complaint on a special administrator appointed by the probate court subsequent to filing the original complaint related back to the commencement of the original complaint and brought service of the complaint within the applicable statute of limitations. He also asserts that his complaint was timely under the Arkansas nonclaim statute, Arkansas Code Annotated section 28-50-101 (Supp. 2009). We affirm the decision of the circuit court. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(b)(5).
On May 21, 2007, Crenshaw and Ayers were involved in an automobile accident. Ayers subsequently died on May 9, 2009. Crenshaw filed a complaint on May 14, 2010, naming the deceased Ayers as the sole defendant. A summons was issued naming "Steven Ken Ayers" on this same date but was never returned. On June 24, 2010, Crenshaw filed an amended complaint again naming Ayers as the sole defendant and adding a claim for punitive damages. An answer and motion to dismiss were filed on June 25, 2010, stating, "Comes Steven Ken Ayers ('defendant'), by and through his attorneys, and for his answer and motion to dismiss," and asserting a lack of jurisdiction and defective service of process. On August 18, 2010, Crenshaw filed a motion for extension of time to serve the complaint asserting that he had learned of Ayers's death, that he had determined that no probate estate had been opened, and that he needed additional time to obtain appointment of a special administrator so that service could be effected. Thereafter, on September 2, 2010, an amended answer and a motion to dismiss were filed on behalf of Ayers, again naming him as the defendant but adding "who predeceased the filing of this action." The answer asserted the defense of limitations. On this same date, a motion for summary judgment on behalf of Ayers was filed, again noting that Ayers had predeceased the filing of the action. The motion for summary judgment asserted that the original complaint was a nullity, that because the original complaint was a nullity, there could be no substitution of parties, and that, therefore, the statute of limitations extinguished the claim.
On September 3, 2010, Crenshaw filed a complaint naming a special administrator as defendant. The special administrator was served on September 7, 2010, four days before the120 days under Rule 4 expired. Crenshaw filed a response to the motion to dismiss and motion for summary judgment arguing that he was entitled to substitute the administrator for the deceased Ayers under Arkansas Rule of Civil Procedure 25, or, in the alternative, that the complaint filed against the administrator related back to the original complaint under Arkansas Rule of Civil Procedure 15. He additionally argued that he was entitled to proceed under the Arkansas nonclaim statute. The circuit court denied the motion for extension of time to serve the complaint and granted the motion for summary judgment.
A trial court may grant summary judgment when it is apparent that no genuine issues of material fact exist requiring litigation and that the moving party is entitled to judgment as a matter of law. Repking v. Lokey, 2010 Ark. 356, at 4,___S.W.3d___. Once the moving party establishes a prima facie entitlement to summary judgment, the burden of proof shifts to the opposing party, and the opposing party must demonstrate the existence of a material issue of fact. Id.,___S.W.3d at___. Upon reviewing the undisputed facts, the trial court should deny summary judgment if, under the evidence, reasonable minds might reach different conclusions from the same undisputed facts. Id.,___S.W.3d at___. On appeal, this court determines whether the evidentiary items presented by the moving party leave a material question of fact unanswered. Id.,___S.W.3d at___. The evidence is viewed in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. at 4-5,___S.W.3d at___. Further, this review is not limited to the pleadings but also includes the affidavits and other documents filed by the parties. Id.,___S.W.3d at___.
Crenshaw raises six issues on appeal. He argues (1) that Ayers could not be a proper party below and could not file an answer and responsive pleadings because he was dead, (2) that service was effective because a complaint was served on the special administrator within 120 days of filing the original complaint, (3) that naming Ayers was a misnomer and he was entitled to substitute the special administrator under Rule 25 because Ayers was a deceased party, (4) that naming the deceased Ayers as a party was a misnomer entitling him to substitute the special administrator as the correct party, (5) that his complaint naming the special administrator relates back to his original complaint under Arkansas Rule of Civil Procedure 15(c), and (6) that the lawsuit was timely under the nonclaim statute.
Crenshaw's assertion that the deceased Ayers was not a proper party below is raised for the first time on appeal. On appeal, our jurisdiction is limited to reviewing those issues upon which there is a decision reflected in an order or a decree from a lower court. See Gwin v. Daniels, 357 Ark. 623, 626, 184 S.W.3d 28, 30 (2004). In the present case, there is no order or decree deciding this issue, and on that basis, we must decline to consider it.
We next consider the viability of Crenshaw's original complaint, upon which, with the exception of the nonclaim issue, all of his remaining arguments rely. Crenshaw asserts that naming the deceased Steven Ayers as a party was a misnomer. A misnomer is a mistake in naming a party. Nucor Corp. v. Kilman, 358 Ark. 107, 132, 186 S.W.3d 720, 736 (2004) (quoting Black's Law Dictionary 1015 (7th ed. 1999)). Where the mistake in naming the party is so substantial or material as to indicate a different entity, it is fatal. See Shotzman v. Berumen, 363 Ark. 215, 225, 213 S.W.3d 13, 17-18 (2005). Crenshaw meant to name Steven Ayersand did so. There is no evidence to show that in filing the original complaint, Crenshaw intended to name the estate or a representative of Ayers's estate. Ayers and the estate of Ayers are separate and distinct entities. Arkansas Rule of Civil Procedure 4(b) requires that the summons contain the names of the parties and be directed to the defendant. This court has consistently held that compliance with Rule 4(b) "must be exact." Shotzman, 363 Ark. at 227, 213 S.W.3d at 19. Without valid service of process, the circuit court never acquires jurisdiction. Id., 213 S.W.3d at 19.
In Storey v. Smith, 224 Ark. 163, 272 S.W.2d 74 (1954) this court considered a summons issued in the name of a nonexistent defendant and stated that, "[w]e have no Arkansas case bearing upon the effect of a summons issued for service upon a nonexistent defendant." Storey, 224 Ark. at 165, 272 S.W.2d at 76. The court concluded that "no legal proceeding actually existed; nor can it exist until the identity of the defendant is known or comes into being." Storey, 224 Ark. at 167, 272 S.W.2d at 77....
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