Zachary Plunkett v. Cheryl Vosburg, in Her Capacity as Special Administrator of the Estate of Howell Griffin

Cite as 2022 Ark. App. 484
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-21-616

Opinion Delivered November 30, 2022
ZACHARY PLUNKETT
APPELLANT
APPEAL FROM THE SEBASTIAN
V. COUNTY CIRCUIT COURT, FORT
SMITH DISTRICT
CHERYL VOSBURG, IN HER CAPACITY [NO. 66FCV-20-539]
AS SPECIAL ADMINISTRATOR OF THE
ESTATE OF HOWELL GRIFFIN,
DECEASED HONORABLE DIANNA HEWITT
APPELLEE LADD, JUDGE

AFFIRMED

RITA W. GRUBER, Judge

This case arises from a motor-vehicle accident involving appellant Zachary Plunkett

and Howell Griffin, who is deceased. Appellant appeals from an order of the Sebastian

County Circuit Court dismissing his amended complaint against appellee Cheryl Vosburg,

special administrator of the estate of Howell Griffin, on the basis that it was barred by the

statute of limitations. For his sole point on appeal, appellant argues that the circuit court

erred in granting the motion to dismiss because Crenshaw v. Special Administrator of Estate of

Ayers, 2011 Ark. 222, should be overruled. We affirm.

Appellant and Griffin were involved in a motor-vehicle accident on August 4, 2017.

Griffin passed away on February 17, 2018. On July 24, 2020, appellant filed a complaint for

personal injury arising out of the accident and named Griffin as the only defendant.
Appellant sought the appointment of a special administrator after learning of Griffin’s death.

A motion for substitution of parties was filed by Jan Heiss on October 26, stating that she

had been appointed as special administrator of Griffin’s estate by the Sebastian County

Circuit Court. On November 6, 2020, appellant filed an amended complaint for personal

injury against Heiss as special administrator of Griffin’s estate. Heiss filed an answer on

November 25, 2020, raising numerous affirmative defenses, including statute of limitations.

On December 20, Heiss was dismissed as special administrator in the probate case, and

Cheryl Vosburg was appointed. Thereafter, the circuit court entered an order in the present

case dismissing Heiss and amending the caption to reflect Vosburg as the special

administrator of Griffin’s estate.

On January 8, 2021, Vosburg filed a motion to dismiss the amended complaint,

alleging that it was filed outside of the three-year statute of limitations for negligence actions

under Ark. Code Ann. § 16-56-105 (Repl. 2005). The motion alleged that the original

complaint was filed against a deceased individual, which is a nullity under Arkansas law

according to Crenshaw, supra. Appellant responded that he was unaware of Griffin’s death

before the complaint was filed; he petitioned for the appointment of Jan Heiss as special

administrator after learning of Griffin’s death; he filed an amended complaint naming Heiss

as defendant after being appointed special administrator; and Heiss had signed a waiver of

service of summons within the 120-day time period for service of process under Ark. R. Civ.

P. 4(i). Appellant argued that barring him from having his case heard on the merits after

timely filing suit against Griffin, whose death was unknown to him, would result in an

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unconstitutional deprivation of property without due process of law and a violation of equal

protection of the laws and would be inconsistent with amendment 80 to the Arkansas

Constitution. Appellant argued that his amended complaint should relate back to the

original complaint pursuant to Rule 15(c) of the Arkansas Rules of Civil Procedure and

asked the circuit court to overrule Crenshaw.

On September 30, the circuit court granted appellee’s motion to dismiss on the basis

of our supreme court’s ruling in Crenshaw, which held that a plaintiff must sue a living

defendant. The circuit court further found that Crenshaw did not violate appellant’s right to

access the courts, did not result in differential treatment being applied to him compared to

others who were similarly situated, and was not inconsistent with amendment 80 to the

Arkansas Constitution. Appellant timely appealed from this order.

In Hackelton v. Malloy, 364 Ark. 469, 474, 221 S.W.3d 353, 357 (2006), the supreme

court stated the standard of review from an order granting a motion to dismiss based on the

statute of limitations as follows:

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).

(quoting Brewer v. Poole, 362 Ark. 1, 7, 207 S.W.3d 458, 461 (2005)).

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The circuit court granted appellee’s motion to dismiss based on Crenshaw. In

Crenshaw, our supreme court affirmed the order of summary judgment that dismissed

Hunter Crenshaw’s complaint against Steven Ayers with prejudice for failure to commence

the action within the applicable statute of limitations. Crenshaw argued that the circuit court

erred in dismissing the lawsuit because service of his complaint on a special administrator

appointed by the probate court subsequent to the filing of the original complaint related

back to commencement of the original complaint and brought service within the applicable

statute of limitations.

Crenshaw and Ayers were in an automobile accident on May 21, 2007. Ayers died on

May 9, 2009. Crenshaw filed a complaint on May 14, 2010, naming the deceased Ayers as

the sole defendant. On September 3, 2010, Crenshaw filed a complaint naming a special

administrator as a defendant. The special administrator was served on September 7, 2010,

four days before the 120 days under Ark. R. Civ. P. 4 expired. In response to a motion to

dismiss and motion for summary judgment based on statute of limitations, Crenshaw argued

that he was entitled to substitute the special administrator for the deceased Ayers under Ark.

R. Civ. P. 25 or, alternatively, that the complaint filed against the special administrator

related back to the original complaint under Ark. R. Civ. P. 15.

On appeal, Crenshaw argued that naming Ayers was a misnomer. Our supreme court

held that Crenshaw did not make a mistake in naming Ayers as the defendant but intended

to name Ayers and “did so unaware that Ayers was deceased.” Consequently, the court held

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that no legal proceeding was commenced by filing the complaint against the deceased Ayers,

explaining as follows:

The original complaint was void ab initio and a nullity, and as such, it was not
subject to amendment, relation back under Rule 15(c), or substitution of parties
under Rule 25. A complaint naming a deceased person as the defendant constitutes
a defect that fails to invoke the jurisdiction of the court because there must be an
entity in being at the time the complaint is filed. See Storey [v. Smith], 224 Ark. 163,
167, 272 S.W.2d 74, 77. A complaint must be valid to constitute an amendable
pleading. Davenport v. Lee, 348 Ark. 148, 164, 72 S.W.3d 85, 94 (2002). Before Rule
15(c) can apply, there must be a valid pleading to relate back to. St. Paul Mercury Ins.
Co. v. Circuit Court of Craighead County, 348 Ark. 197, 204, 73 S.W.3d 584, 588
(2002). Rule 25 provides for substitution when “a party dies,” which means that the
person must be a party at the time of death. See Ark. R. Civ. P. 25(a). The September
3, 2010 complaint naming the special administrator began an entirely new lawsuit
and, therefore, was subject to the statute of limitations, which Crenshaw
acknowledges had already run on May 21, 2010.

Crenshaw, 2011 Ark. 222, at 6.

Appellant does not disagree with the circuit court’s interpretation of Crenshaw but

argues that Crenshaw should be overruled because it raises constitutional concerns. Appellant

challenges the constitutionality of a bright-line rule that a complaint filed against a deceased

person is a nullity when the plaintiff, like appellant, does not know that a defendant has

died. He argues that the (1) the right to sue for damages is a fundamental property right that

cannot be taken without due process, which requires some minimal notice before the taking

occurs; (2) the supreme court’s holding in Crenshaw interferes with a constitutional right that

is not carried out with the least restrictive means available; and (3) dismissal of appellant’s

case violates Equal Protection guarantees in the United States Constitution. In addition,

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appellant makes a public-policy argument that cases should be decided on the merits and not

technicalities.

It is undisputed that Crenshaw is on all fours with this case. Here, appellant filed a

complaint against Howell and did so unaware that he was deceased. The November 6, 2020

amended complaint naming the special administrator began a new lawsuit that was subject

to the statute of limitations, which had expired on August 4, 2020.

Appellant does not argue that his case is distinguishable from Crenshaw and, in fact,

agrees with the circuit court’s interpretation of Crenshaw. Instead, appellant asks us to

overrule Crenshaw on constitutional and public-policy grounds. We, however, must follow

the precedent set by the supreme court and are powerless to overrule its decisions. Northport

Health Servs. of Ark., LLC v. Chancey, 2022 Ark. App. 103, at 10, 642 S.W.3d 253, 259.

Accordingly, we affirm the circuit court’s dismissal of appellant’s amended complaint.

Affirmed.

KLAPPENBACH and BROWN, JJ., agree.

McCutchen Sexton Napurano, by: Joey McCutchen, Sam Sexton II, and Stephen Napurano,

for appellant.

Jones, Jackson, Moll, McGinnis & Stocks, PLC, by: Randolph C. Jackson and Michael T.

Newman, for appellee.

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