                                  Cite as 2015 Ark. 422

               SUPREME COURT OF ARKANSAS
                                     No.   CV-15-177

RANDI SILKMAN, AS                               Opinion Delivered   November 12, 2015
ADMINISTRATOR OF THE ESTATE
OF VERA KOLESAR, DECEASED,                      APPEAL FROM THE SALINE
AND ON BEHALF OF THE                            COUNTY CIRCUIT COURT
WRONGFUL DEATH BENEFICIARIES                    [NO. CV-10-997-2]
OF VERA KOLESAR
                    APPELLANT                   HONORABLE GARY M. ARNOLD,
                                                JUDGE
V.
                                                AFFIRMED.

EVANGELICAL LUTHERAN GOOD
SAMARITAN SOCIETY;
EVANGELICAL LUTHERAN GOOD
SAMARITAN SOCIETY, D/B/A
GOOD SAMARITAN CAMPUS HOT
SPRINGS; GOOD SAMARITAN
SOCIETY INSURANCE, LTD.;
CORRINE WHITE, IN HER
CAPACITY AS ADMINISTRATOR OF
GOOD SAMARITAN SOCIETY–HOT
SPRINGS VILLAGE; JOHN DOE I;
JOHN DOE II; JOHN DOE III; JOHN
DOE IV; AND JOHN DOE V
                       APPELLEES


                          ROBIN F. WYNNE, Associate Justice


      Randi Silkman, as administrator of the estate of Vera Kolesar, deceased, and on behalf

of the wrongful-death beneficiaries of Vera Kolesar, has appealed from a grant of summary

judgment by the Saline County Circuit Court in favor of appellees, Evangelical Lutheran

Good Samaritan Society; Evangelical Lutheran Good Samaritan Society d/b/a Good
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Samaritan Campus Hot Springs; Good Samaritan Society Insurance, Ltd.; Corrine White, in

her capacity as administrator of Good Samaritan Society–Hot Springs Village; and John Does

I–V. The circuit court, in granting the motion, found that the first properly filed complaint

in this case had been filed prior to the complaint at issue and had been removed to federal

court. The circuit court also dismissed the complaint under the doctrine of forum non

conveniens. We previously decided an appeal in this same case in Evangelical Lutheran Good

Samaritan Society v. Kolesar, 2014 Ark. 279. As this is a second, or subsequent, appeal filed

with this court, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(7) (2015).

We affirm the order of the circuit court.

        On December 2, 2010, Robert Kolesar, Sr., Vera Kolesar’s husband, filed a medical-

malpractice action against appellees as attorney-in-fact for Mrs. Kolesar.1 The case was

removed to federal court and subsequently remanded to state court. In May 2011, appellees

filed a motion to compel arbitration and for dismissal. That motion was denied by the circuit

court, and the denial was affirmed by this court in our earlier decision, which was issued in

2014.

        On June 7, 2011, appellant filed an amended and substituted complaint that added an

insurance company as a defendant. During a hearing on the motion to compel arbitration on

November 3, 2011, Mr. Kolesar testified that he did not have a power of attorney over Mrs.

Kolesar when the complaint was filed in December 2010. Appellees made an oral motion


        1
        Mrs. Kolesar died on May 2, 2014. Mrs. Silkman successfully moved to be substituted
as the plaintiff in the suit.


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during the hearing to withdraw the complaint on the ground that Mr. Kolesar did not have

a valid power of attorney when the 2010 complaint was filed. Appellant filed an amendment

to the complaint on November 7, 2011, that had attached to it a power of attorney over Vera

Kolesar in favor of Robert Kolesar, Jr. Appellant withdrew that power of attorney and

attached one executed by Mrs. Kolesar in favor of Mr. Kolesar, Sr., to an “Amendment to

Complaint” filed on November 29, 2011, that incorporated the “original complaint” by

reference. Prior to this, on November 21, 2011, appellant filed a new complaint essentially

identical to the amended and substituted complaint in the Saline County Circuit Court. That

complaint was subsequently removed to federal court, and the federal court stayed that action

in December 2012 pending the outcome of the motion for summary judgment at issue here.

       Appellees filed a motion for summary judgment on December 29, 2011, in which they

argued that Mr. Kolesar lacked standing to sue, and the complaint should be dismissed as a

matter of law. In the response to the motion, appellant alleged that the May 19, 2011 power

of attorney and the November 29, 2011 amendment to the complaint should be considered

“ratification, joinder, or substitution” under Arkansas Rule of Civil Procedure 17(a).2 At the

       2
           Arkansas Rule of Civil Procedure 17(a) (2015) states:

       Every action shall be prosecuted in the name of the real party in interest. An executor,
       administrator, guardian, bailee, trustee of an express trust, a party with whom or in
       whose name a contract has been made for the benefit of another, or a party authorized
       by statute may sue in that person’s own name without joining the party for whose
       benefit the action is brought. No action shall be dismissed on the ground that it is not
       prosecuted in the name of the real party in interest until a reasonable time has been
       allowed after objection for ratification of commencement of the action by, or joinder
       or substitution of, the real party in interest; and such ratification, joinder, or
       substitution shall have the same effect as if the action had been commenced in the
       name of the real party in interest.


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May 18, 2012 hearing on the motion for summary judgment, appellees argued additionally

that the complaint should be dismissed under the doctrine of forum non conveniens. The circuit

court entered an order on November 17, 2014, in which it found that the November 21,

2011 complaint was the first validly filed action in this case, found that the doctrine of forum

non conveniens supported granting the motion, granted the motion, and dismissed the

complaint without prejudice. This appeal followed.

       The law is well settled regarding the standard of review used by this court in reviewing

a grant of summary judgment. Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179. A trial

court will 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. Id. The burden of proof shifts to the opposing party once the moving party establishes

a prima facie entitlement to summary judgment; the opposing party must demonstrate the

existence of a material issue of fact. Id. After reviewing the evidence, the trial court should

deny summary judgment if, under the evidence, reasonable minds could reach different

conclusions from the same undisputed facts. Id.

       Appellant’s first argument on appeal is that the June 2011 complaint or the November

7, 2011 amendment constitute the first-filed action in this case and, as both were filed prior

to the November 21, 2011 complaint, the trial court erred in finding that the November 21,

2011 complaint was the first validly filed action. However, appellant never raised this

argument before the trial court. It is axiomatic that this court will not consider arguments

raised for the first time on appeal. Brown v. Lee, 2012 Ark. 417, at 7, 424 S.W.3d 817, 821.




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Before the trial court, appellant argued that the November 29, 2011 complaint, combined

with the May 19, 2011 power of attorney, served to satisfy Arkansas Rule of Civil Procedure

17(a), thereby making the December 2010 complaint a validly filed action. Not once did

appellant argue, as she does on appeal, that the first validly filed action was either the June

2011 amended and substituted complaint or the November 7, 2011 amendment to the

complaint. Because of this, the argument will not be considered by this court on appeal.

       Appellant’s next argument is that the trial court erred by dismissing the complaint

under the doctrine of forum non conveniens. Pursuant to Arkansas Code Annotated section 16-

4-101(D) (Repl. 2010), “[w]hen the court finds that in the interest of substantial justice the

action should be heard in another forum, the court may stay or dismiss the action in whole

or in part on any condition that may be just.” The application of forum non conveniens lies

within the sound discretion of the trial court. See Country Pride Foods Ltd. v. Medina &

Medina, 279 Ark. 75, 648 S.W.2d 485 (1983). Only if this discretion is abused will the

reviewing court reverse. Id.

       We hold that the trial court did not abuse its discretion in this case by electing to

dismiss the complaint under the doctrine of forum non conveniens. A trial court commits an

abuse of discretion when it improvidently exercises its discretion, for example, when

discretion is exercised thoughtlessly and without due consideration. Poff v. Brown, 374 Ark.

453, 288 S.W.3d 620 (2008). Here, the trial court weighed the interests of the parties, as well

as the procedural posture of the complaint, and concluded that it was best for the complaint

currently in federal court to proceed.      The trial court did not exercise its discretion




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thoughtlessly or without due consideration.

      Affirmed.

      Ludwig Law Firm, by: Gene Ludwig; and
      David Hodges, for appellant.

      Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: R.T. Beard III, and Megan
D. Hargraves, for appellees.




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