Wolford v. St. Paul Fire & Marine Ins. Co.

• Court: Arkansas Supreme Court
• Writing for the Court: THORNTON
• Citation: Wolford v. St. Paul Fire & Marine Ins. Co., 961 S.W.2d 743, 331 Ark. 426 (Ark. 1998)
• Decision Date: 12 February 1998
• Docket Number: No. 97-385,97-385
• Parties: Della Lou WOLFORD, Appellant, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, Appellee.

Page 743

961 S.W.2d 743

331 Ark. 426

Della Lou WOLFORD, Appellant, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, Appellee.

No. 97-385.

Supreme Court of Arkansas.

Feb. 12, 1998.

George Bailey, Little Rock, for appellant.

Paul McNeill, Jonesboro, for appellee.

THORNTON, Justice.

Appellant, Mrs. Della Lou Wolford, brought this medical-malpractice action against her deceased husband's physician, Dr. Nathan Strickland; White River Medical Center and its agents, servants, and employees; and St. Paul Fire and Marine Insurance Company. St. Paul was the liability insurance carrier for the medical facility and for Dr. Strickland. While litigation was pending, Dr. Strickland died. The trial court dismissed the claim against him with prejudice when appellant failed to file a motion for substitution of parties within ninety days following the notice of death. The White River Medical Center was dismissed without prejudice, and the case proceeded to trial against St. Paul on the remaining issue of medical malpractice of the Medical Center's nurses and staff. The trial court ordered a mistrial because of the relationship of a juror to a witness.

In preparation for a new trial, St. Paul made a motion in limine to preclude appellant's expert witness, Dr. Richard Williams, from testifying because he testified as to a national standard of care for nurses and did not demonstrate a familiarity with the standard of nursing care in Batesville, Arkansas, where the Medical Center was located. As Dr. Williams was the only expert-medical witness prepared to testify for appellant at the new trial, St. Paul orally requested that the court allow it to make a motion for summary judgment in the event that its motion in limine to suppress Dr. Williams's testimony was granted. St. Paul argued that summary judgment would be appropriate because appellant would not have a medical expert available to testify in the event of Dr. Williams's disqualification. The trial court granted both motions, and the case was dismissed.

Appellant brings this appeal from the circuit court's decision. For reversal, appellant makes four separate allegations of error: (1) that the trial court erred either in refusing to grant her motion for substitution of the deceased surgeon's estate as a party pursuant to Ark. R. Civ. P. 25(a)(1), or in refusing to extend her period of time under Ark. R. Civ. P. 6(b)(2) for filing the motion for substitution; (2) that the trial court erred in granting the motion to dismiss the claim against Dr. Strickland with prejudice; (3) that the trial court erred in refusing to grant her motion for voluntary dismissal of the claim against Dr. Strickland prior to submission of the case to the court; (4) that the trial court erred in its application of the law in striking the testimony of her only expert medical witness, Dr. Williams, and subsequently granting summary judgment.

We conclude that the trial court did abuse its discretion in determining that appellant's proposed witness, Dr. Williams, was not qualified as an expert to testify as to the standard of nursing care applicable in 1992 in the area around Batesville, Arkansas, and therefore, summary judgment was not appropriate. We conclude that the trial court did not abuse its discretion in dismissing the action against Dr. Strickland because the motion for substitution of parties was not timely filed; however, in accordance with Ark. R. Civ. P. 41(b), we hold that the dismissal should have been without prejudice.

I. Substitution of Parties

First, appellant argues that the trial court's refusal to grant either her motion for an extension of time or her motion for substitution constituted an abuse of its discretion. We disagree and affirm on this point.

A notice of fact of death was filed on January 12, 1995, informing appellant that Dr. Strickland had died on September 22, 1994. On May 3, 1995, Dr. Strickland's counsel filed a motion to dismiss based on the fact that appellant had not filed a timely motion for substitution of parties. Dr. Strickland's counsel alleged that the motion for substitution of parties should have been made within ninety days from the January 12 filing date, and no such motion had been filed. He also noted in the supporting brief that appellant had filed a notice of claim against the estate shortly after the notice of death, and therefore argued that lack of notice of the fact of death should not be an excuse.

On May 8, 1995, appellant filed a motion for substitution of parties, well outside of the ninety-day period provided by Ark. R. Civ. P. 25(a)(1). Appellant's counsel stated in a supporting affidavit that he and defendants' counsel had decided in a telephone conversation that they would choose a mutually convenient time to accomplish several changes "at one time" to make the parties proper. Dr. Strickland's counsel filed his own affidavit, responding to this allegation by saying that, according to his billing records, this conversation took place prior to Dr. Strickland's death and pertained to substituting parties for the medical facility and for the parties who were individual plaintiffs at the time. On May 16, 1995, appellant filed a supplemental motion for substitution of parties and motion for enlargement and extension of time pursuant to Ark. R. Civ. P. 6(b)(2).

On August 15, 1995, the trial court mailed a letter in which it set out its findings. In its letter, the trial court found that appellant did not file the motion for substitution of parties within the time period required under Ark. R. Civ. P. 25, and the court expressed its intention to grant Dr. Strickland's motion to dismiss this case pursuant to Ark. R. Civ. P. 25.

In our review, we look first to our applicable rule of civil procedure. The pertinent portion of Ark. R. Civ. P. 25 reads as follows:

If a party dies and the claim is not thereby extinguished, the Court may order substitution of the proper parties.... Unless the motion for substitution is made not later than ninety (90) days after the death is suggested upon the record by the service upon the parties of a statement of the fact of death, the action may be dismissed as to the deceased party.

Ark. R. Civ. P. 25(a)(1) (emphasis added). It is not disputed by either party that the motion for substitution was made later than ninety days after appellant received notice of Dr. Strickland's death.

Appellant argues correctly that the use of the word "may" in the rule connotes that dismissal is not mandatory. We have stated that "the word 'may' as used in [a] rule implies permissive or discretional, rather than mandatory, action, ..." Lovett v. State, 267 Ark. 912, 914, 591 S.W.2d 683, 684 (Ark.App.1979) (citing Nathan v. State, 235 Ark. 704, 361 S.W.2d 637 [331 Ark. 432] (1962)). Here, likewise, the word "may" in the rule implies that dismissal is not mandatory; however, it is discretionary with the trial court. Accordingly, we cannot say that the trial court abused its discretion in acting expressly within the authority given to it under Rule 25.

Appellant argues in the alternative that the trial court should have granted her request for an enlargement or extension of time pursuant to Ark. R. Civ. P. 6(b). The applicable portion of that rule reads as follows:

Enlargement: When by these rules or by a notice given thereunder or by order of the court an act is required or allowed to be done at or within a specified time, the Court for cause shown may at any time in its discretion: ... (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of mistake, inadvertence, surprise, excusable neglect, or other just cause ....

Ark. R. Civ. P. 6(b)(2) (emphasis added).

In its letter ruling, the trial court said that both sides agreed that the conversation at issue, regarding "cleaning up" the parties and style of the case, occurred prior to the notice of fact of death. The trial court went on to state that the filing of the notice of fact of death should have prompted appellant's counsel to ask appellee's counsel "whether any such agreement was still in effect and why the Defendant Strickland had filed the Notice. No allegation is made that any agreement was made to extend the time for filing a motion to substitute the estate for the deceased defendant."

While appellant's counsel alleges that the intent of the conversation was to perform all the necessary style and party changes at one time, he does not contend that the conversation was meant as an agreement to extend the ninety-day period during which he was required to file a motion to substitute. We agree with the trial court that the notice of fact of death should have been appellant's stimulus to request a clarification. Further, as noted above, the notice of fact of death did prompt appellant's counsel to file a timely claim against Dr. Strickland's estate.

We conclude that appellant's argument does not allege that she was mistaken about the time during which she was required to respond or that the failure to file in a timely manner was the result of surprise, excusable neglect, or other just cause; therefore, we cannot say that the trial court abused its discretion in denying both appellant's motion for substitution and her motion for enlargement or extension of time.

II. Dismissal with Prejudice

Appellant next argues that the trial court abused its discretion in dismissing the cause against defendant Strickland with prejudice. She asserts that Ark. R. Civ. P. 41(b) requires that the dismissal should have been a dismissal without prejudice. We agree, and modify the dismissal to be without prejudice.

After the trial court's August 15, 1995, letter, appellant's counsel sent a letter on August 18, stating that, if the dismissal were to be "with prejudice," he wanted a chance to hold a hearing and to brief the issue first. Then, on August 23, after receiving a copy of appellee's proposed...