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                SUPREME COURT OF ARKANSAS
                                       No.   CV-13-847

MARY BERRYHILL                                    Opinion Delivered   April 17, 2014
                               APPELLANT
                                                  APPEAL FROM THE HOT SPRING
V.                                                COUNTY CIRCUIT COURT
                                                  [NO. 30CV-11-219-1]

FRANCES SYNATZSKE, DECEASED,                      HONORABLE CHRIS E WILLIAMS,
BRYAN HUFFMAN, AS SPECIAL                         JUDGE
ADMINISTRATOR OF THE ESTATE
OF FRANCES SYNATZSKE, AND                         REVERSED AND REMANDED;
JOHN DOES 1-70                                    COURT OF APPEALS’ OPINION
                     APPELLEES                    VACATED.


                         KAREN R. BAKER, Associate Justice


       This appeal stems from a car accident between appellant, Mary Berryhill, and appellee,

Frances Synatzske, that occurred on November 18, 2008. On September 21, 2011, Berryhill

sued Synatzske alleging that Synatzske was responsible for the accident. In the same

complaint, Berryhill also sued seventy John Does, including a John Doe that was designated

to represent the estate of any defendant who predeceases the service of the complaint. On

October 6, 2011, an answer was filed and stated that Synatzske had died and that an estate

should be opened and served, and also alleged that the complaint should be dismissed for

insufficiency of process and insufficiency of service of process.

       On November 14, 2011, three days after the expiration of the statute of limitations,

appellee, Bryan Huffman, filed a petition for appointment as special administrator of

Synatzske’s estate. On November 28, 2011, the circuit court appointed Huffman as special
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administrator of the estate (hereinafter the estate). On December 22, 2011, the circuit court

granted Berryhill’s motion to extend the time of service until May 16, 2012.

       On April 3, 2012, approximately two months prior to the expiration of the statute of

limitations, Berryhill filed an amended complaint naming the estate as a party. The estate

answered and raised affirmative defenses of the statute of limitations, insufficiency of process,

and insufficiency of service of process.

       On July 5, 2012, the estate filed a motion for summary judgment asserting that the

original complaint was a nullity because Synatzske had died prior to the filing of the original

complaint, and therefore, it could not be transformed into a valid suit by amending the

complaint after the statute of limitations had passed. The estate further argued that Ark. Code

Ann. § 16-56-125 could not be used to toll the statute of limitations because the statute only

applied in circumstances in which the tortfeasor was unknown, and asserted that in this case

Berryhill knew the identity of the tortfeasor.

       Berryhill responded that her complaint named Synatzske, as well as her estate, as a John

Doe defendant pursuant to Ark. Code Ann. § 16-56-125 (Repl. 2005), in the event Synatzske

died prior to filing the complaint. Berryhill further asserted that her complaint was proper

because it was unknown at the time of the filing of the complaint whether Synatzske or her

estate was the tortfeasor. Accordingly, Berryhill argued that the original complaint was not

a nullity, and that she had timely substituted Huffman as a party and served him prior to the

deadline passing. Finally, Berryhill argued that the amended complaint naming Huffman

related back to the filing of the original complaint, which was prior to the running of the


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statute of limitations.

       After a hearing, the circuit court granted the estate’s motion for summary judgment

on September 13, 2012, finding that Berryhill had failed to timely file her amended complaint

naming the estate prior to the running of the statute of limitations. The circuit court further

found that the statute of limitations was not tolled by the filing of the original complaint

pursuant to Ark. Code Ann. § 16-56-125 because Berryhill knew the tortfeasor, but failed to

amend her original complaint prior to the expiration of the statute of limitations.

       Berryhill appealed the decision to the court of appeals, which affirmed the circuit

court’s decision. Berryhill v. Synatzske, 2013 Ark. App. 483. Berryhill then petitioned this

court for review, which we granted. Berryhill presents one issue on appeal: the circuit court

erred in granting the estate’s motion for summary judgment.

       Upon granting a petition for review, this court considers the appeal as though it had

been originally filed in this court. Pack v. Little Rock Convention Ctr. & Visitors Bureau, 2013

Ark. 186, ___ S.W.3d ___. This case comes to us from an order of summary judgment. A

trial court may grant summary judgment only 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. Crockett v. C.A.G. Invs., Inc., 2011 Ark. 208, 381 S.W.3d 793. On appeal,

this court determines if summary judgment was appropriate based on whether the evidentiary

items presented by the moving party leave a material question of fact unanswered. Bryan v.

City of Cotter, 2009 Ark. 172, 303 S.W.3d 64. Summary judgment is also appropriate when

the trial court finds that the allegations, taken as true, fail to state a cause of action. Cottrell


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v. Cottrell, 332 Ark. 352, 965 S.W.2d 129 (1998). We view the evidence in the light most

favorable to the party against whom the motion was filed, resolving all doubts and inferences

against the moving party. Harrisburg Sch. Dist. No. 6 v. Neal, 2011 Ark. 233, 381 S.W.3d

811.

                                I. Ark. Code Ann. § 16-56-125

       With these standards identified, we now turn to the issue presented, which is whether

the circuit court erred in granting Synatzske’s motion for summary judgment. The issue

requires us to interpret Ark. Code Ann. § 16-56-125. We review issues of statutory

interpretation de novo because it is for this court to decide what a statute means. Cooper

Realty Invs., Inc. v. Ark. Contractors Licensing Bd., 355 Ark. 156, 134 S.W.3d 1 (2003). While

we are not bound by the circuit court’s ruling, we will accept that court’s interpretation of

a statute unless it is shown that the court erred. Id.

       Turning to our review of the statute before us, “[t]he first rule in considering the

meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary

meaning and usually accepted meaning in common language.” Potter v. City of Tontitown, 371

Ark. 200, 209, 264 S.W.3d 473, 481 (2007). “The basic rule of statutory construction is to

give effect to the intent of the legislature.” Dep’t of Human Servs. & Child Welfare Agency

Review Bd. v. Howard, 367 Ark. 55, 62, 238 S.W.3d 1, 6 (2006). Additionally, in construing

any statute, we place it beside other statutes relevant to the subject matter in question and

ascribe meaning and effect to be derived from the whole. Lawhon Farm Servs. v. Brown, 335

Ark. 272, 984 S.W.2d 1 (1998). Statutes relating to the same subject must be construed


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together and in harmony, if possible. Jester v. State, 367 Ark. 249, 239 S.W.3d 484 (2006).

       The relevant statute, Ark. Code Ann. § 16-56-125 “Unknown Tortfeasors,” provides:

       (a) For the purposes of tolling the statute of limitations, any person, firm, or
       corporation may file a complaint stating his or her cause of action in the appropriate
       court of this state, whenever the identity of the tortfeasor is unknown.

       (b)(1) The name of the unknown tortfeasor shall be designated by the pseudo-name
       John Doe or, if there is more than one (1) tortfeasor, John Doe 1, John Doe 2, John
       Doe 3, etc.

       (2) Upon determining the identity of the tortfeasor, the complaint shall be amended
       by substituting the real name for the pseudo-name.

       (c) It shall be necessary for the plaintiff or plaintiff’s attorney to file with the complaint
       an affidavit that the identity of the tortfeasor is unknown before this section shall
       apply.

       Thus, the statute allows a complaint to be filed when the identity of the tortfeasor is

unknown to the plaintiff.

       Additionally, Rule 15(c) of the Arkansas Rules of Civil Procedure (2013) permits a

party to file an amended pleading that relates back to the original filing under certain

circumstances. Rule 15(c)(2) provides:

       (c) Relation Back of Amendments. An amendment of a pleading relates back to the
       date of the original pleading when:

              (1) the claim or defense asserted in the amended pleading arose out of the
              conduct, transaction, or occurrence set forth or attempted to be set forth in the
              original pleading, or

              (2) the amendment changes the party or the naming of the party against whom
              a claim is asserted if the foregoing provision (1) is satisfied and, within the
              period provided by Rule 4(i) for service of the summons and complaint, the
              party to be brought in by amendment (A) has received such notice of the
              institution of the action that the party will not be prejudiced in maintaining a
              defense on the merits, and (B) knew or should have known that, but for a

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              mistake concerning the identity of the proper party, the action would have
              been brought against the party.

       Berryhill asserts that because the identity of the tortfeasor, the estate, was unknown

to her at the time she filed her original complaint, Ark. Code Ann. § 16-56-125 was

applicable to her case and tolled the statute of limitations.

       Synatzske responds that Ark. Code Ann. § 16-56-125 is not applicable to Berryhill’s

case because this case is not one of mistaken identity, and Berryhill made a strategic decision

not to name Synatzske’s estate and did not exercise due diligence.

       At issue is whether Ark. Code Ann. § 16-56-125 applies to Berryhill’s case and tolls

the statute of limitations on the filing of her original complaint. In applying our rules of

statutory interpretation, we must give the words their ordinary and usually accepted meaning,

and the identity of the tortfeasor must have been unknown to Berryhill. Black’s Law

Dictionary defines “tortfeasor” as “one who commits a tort; a wrongdoer.” Black’s Law

Dictionary (9th ed. 2009).

       Turning to the facts of Berryhill’s case, the tortfeasors are Synatzske and Synatzske’s

estate. Synatzske and her estate are two separate and distinct defendants. See Crenshaw v.

Special Adm’r of Estate of Ayers, 2011 Ark. 222. At the time the original complaint was filed,

September 21, 2011, it is undisputed that it was unknown to Berryhill that Synatzske had

died. Likewise, it was unknown to Berryhill whether an estate may have existed. Further,

it was unknown to Berryhill whether a personal administrator of the estate had been

appointed. However, although Berryhill was not aware of Synatzske’s death, Berryhill’s

complaint also named Synatzske’s estate as a John Doe defendant pursuant to Ark. Code

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Ann. § 16-56-125. At the time Berryhill named the estate as a John Doe defendant, she did

not and could not have known the identity of a personal representative as one had not yet

been appointed. See Storey v. Smith, 224 Ark. 163, 272 S.W.2d 74 (1954) (A complaint that

merely names an unidentified personal representative prior to the appointment of a

representative is void.).

       In reviewing the facts in this particular case, we hold that the circuit court erred by

finding that the tortfeasor was not unknown pursuant to Ark. Code Ann. § 16-56-125.1 The

record demonstrates that the identity of the tortfeasor, Synatzske’s estate, was unknown to

Berryhill. Accordingly, Ark. Code Ann. § 16-56-125 is applicable to Berryhill’s case and

tolled the statute of limitations.

       Additionally, we turn to Rule 15(c) because, before a real party can be substituted for

a John Doe defendant in the original complaint, such pleadings must still meet the

requirements of Rule 15(c). Here, the four prongs have been met: the claim clearly arose

out of the same conduct set forth in the original pleadings; Synatzske’s estate had notice of

the initiation of the action and would not have been prejudiced in maintaining a defense on


       1
         The estate urges us to affirm the circuit court based on Crenshaw v. Special Adm’r of
Estate of Ayers, 2011 Ark. 222. We held in Crenshaw that “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.” Id. at 6. We
further held that there was no evidence to show that in filing the original complaint,
Crenshaw intended to name the estate or a representative of Ayers’s estate. However,
Crenshaw is distinguishable from Berryhill’s case. The record in the present case demonstrates
that Berryhill certainly intended to name the estate or representative of the estate in the
original complaint by naming the John Doe defendants. The record also demonstrates that
Berryhill’s counsel repeatedly corresponded with defense counsel in an attempt to identify
the proper venue to petition for appointment of a special administrator.

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the merits; Synatzske’s estate should have known that but for a mistake concerning the

identity of the estate or the personal representative, that the action would have been filed

against the personal representative; and finally, the service requirement was met, as the

original complaint was served within 120 days of the filing.

       Accordingly, because there is a valid pleading to relate back to, the real party, the

estate or Huffman, can be substituted in the original complaint. We note that “[t]he purpose

of Rule 15(c) is to avoid dismissals on technical grounds where the new defendant received

notice of the litigation before the statute of limitations expired. See [William David

Newbern], Rule 15(c) of the Federal and Arkansas Rules of Civil Procedure: Amending Pleadings

after the Statute of Limitations Has Run, 1984 Ark. L. Notes 5.” Harvill v. Cmty. Methodist

Hosp. Ass’n, 302 Ark. 39, 41–42, 786 S.W.2d 577, 579 (1990).

       Therefore, based on our discussion above and our standard of review, we hold that

the circuit court erred in granting the estate’s motion for summary judgment, and we reverse

and remand the matter to circuit court for proceedings consistent with this opinion.

       Reversed and remanded; court of appeals’ opinion vacated.

       HANNAH, C.J., and CORBIN and DANIELSON, JJ., dissent.

       PAUL E. DANIELSON, Justice, dissenting. I respectfully dissent, as I would affirm

the circuit court’s findings that Berryhill failed to timely file her amended complaint naming

the estate prior to the statute of limitations and that the statute of limitations was not tolled

pursuant to Ark. Code Ann. § 16-56-125. I recognize the majority’s motivation to be

equitable, but do not agree that it is the correct interpretation of the law. Additionally, I fear


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that the majority opinion redefines “tortfeasor” to include any liable party and the potential

ramifications that could have.

       It is undisputed that Berryhill’s original complaint named Synatzske and numerous

John Doe defendants and that Synatzske had predeceased the filing of that complaint. This

court has specifically held that no legal proceeding is commenced when a complaint is filed

against a deceased defendant. See Crenshaw v. Special Adm’r of Estate of Ayers, 2011 Ark. 222.

We explained:

       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. A complaint must be valid to constitute an
       amendable pleading. Before Rule 15(c) can apply, there must be a valid pleading to
       relate back to. Rule 25 provides for substitution when “a party dies,” which means
       that the person must be a party at the time of death.

Crenshaw, 2011 Ark. at 6 (internal citations omitted).

       While there is dicta in Crenshaw making mention that there had been no evidence in

that case to show that in filing the original complaint, Crenshaw intended to name the estate

or the representative, we did not make any conclusions as to whether such evidence would

have changed the court’s holding. To do so would have been advisory, and it is well settled

that this court does not issue advisory opinions. See DIRECTV, Inc. v. Murray, 2012 Ark.

366, ___ S.W.3d ___. Because Synatzske was deceased at the time the original complaint

was filed, the complaint was void ab initio, a nullity, and, therefore, not an amendable

pleading.

       The majority opinion declares that “the tortfeasors are Synatzske and Synatzske’s

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estate.”   However, Synatzske’s estate was not the tortfeasor here.           As the majority

acknowledges, a tortfeasor is “one who commits a tort; a wrongdoer.” Black’s Law Dictionary

1527 (9th ed. 2009). There is no question that Berryhill knew that the alleged tortfeasor

involved in the accident was Synatzske.         Her alleged wrongdoer was Synatzske, not

Synatzske’s estate. Synatzske and the estate of Synatzske are separate and distinct entities. See

Crewnshaw, supra. The John Doe statute clearly applies only in cases where the tortfeasor is

unknown. It is not a fact in the instant case that the tortfeasor was unknown.

       Rather, at the time that Berryhill filed the complaint, she suspected that Synatzsek was

deceased. Therefore, she named a John Doe to represent a possible estate. Berryhill was

officially put on notice that Synatzsek was indeed deceased when an answer was filed on

October 6, 2011, over a month before the statute of limitations was to expire. While the

record might indicate that Berryhill’s counsel corresponded with defense counsel in an

attempt to identify the proper venue to petition for appointment of a special administrator,

the process to have a special administrator appointed is not a complex one. Berryhill

seemingly relied on her original complaint, which named John Doe defendants. However,

as previously noted, there were no unknown tortfeasors in the instant case and the John Doe

statute simply did not apply. It is for this reason that I believe the circuit court’s order of

summary judgment should be affirmed, and I dissent.

       HANNAH, C.J., and CORBIN, J., join.
       Whetstone and Odum, by: Kevin Odum; and Baker, Schulze & Murphy, by: J.G. “Gerry”
Schulze, for appellant.
       The Huckabay Law Firm, by: D. Michael Huckabay, Jr., and Kathryn B. Knisely, for
appellees.


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