REL:12/21/07
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2007-2008
_________________________
1051371
_________________________
James Ehl and Vincent Pharmacy, Inc.
v.
Mary DiChiara, as personal representative of Margaret
Dickson
Shelby Circuit Court
(CV-03-1256)
PER CURIAM.
PERMISSION TO APPEAL WITHDRAWN; REMANDED.
Cobb, C.J., and See, Lyons,
Parker, and Murdock, JJ., concur.
Bolin, J., dissents.
Woodall,
Stuart,
Smith,
1061371
BOLIN, Justice (dissenting).
James Ehl and Vincent Pharmacy, Inc., appealed, pursuant
to Rule 5, Ala. R. App. P., from an interlocutory order of the
trial court granting the plaintiff's motion for leave to amend
her complaint to substitute Mary DiChiara in place of Barbara
Lacey
as
personal
representative
of
Margaret
Dickson.
I
believe that the amended complaint substituting DiChiara in
place of Lacey does not relate back to the original complaint
and that, therefore, the statute of limitations on the claims
asserted in the complaint has expired. Accordingly, I dissent
from the majority's withdrawal of the permission to appeal.
The trial court, pursuant to Rule 5(a), Ala. R. App. P.,
signed an order certifying the following controlling question
of law:
"Under Alabama law, is the substitution of the
plaintiff allowed (1) when the applicable statute of
limitations expired prior to the request for
substitution; (2) when the original plaintiff did
not have standing to sue in her own name; and (3)
when the original plaintiff did not have a valid
jural relationship with the proposed plaintiff
(i.e., was not her attorney-in-fact) at the time
that suit was filed?"
Margaret Dickson has three daughters: Barbara Lacey, Mary
DiChiara, and Sandra Keen.
According to Lacey, at some time
2
1061371
before August 20, 2001, Dickson executed a power of attorney
naming Lacey as her attorney-in-fact. On August 20, 2001,
Dickson executed a durable power of attorney naming DiChiara
and Keen as her attorneys-in-fact; the document states that
"all previous powers of attorney are revoked." 1 Lacey contends
that she was never notified that her power of attorney had
been revoked.
In October 2002, Dickson was a resident at Hildebrand
Hidden Acres, a nursing home, when Vincent Pharmacy and its
pharmacist
on
prescribed
duty,
for
her.
James
Ehl,
Dickson
"mis-filled"
thus
a
received
medication
a
different
medication than the medication her physician had prescribed,
and, as a result of taking the incorrect medication, Dickson
became hyperglycemic and had to be hospitalized.
On August 4, 2003, Lacey purported to file a complaint
against
Vincent
Pharmacy
and
Ehl
alleging negligence and wantonness.
"Barbara
Lacey,
as
personal
on
behalf
of
Dickson,
The complaint was styled
representative
of
Margaret
Dickson," and the body of the complaint refers to Lacey as the
1
The August 20, 2001, power of attorney provided that
DiChiara and Keen could act jointly or separately as Dickson's
attorneys-in-fact.
3
1061371
personal
Although
representative
Lacey
was
of
her
listed
mother,
as
Margaret
Dickson's
Dickson.
personal
representative, the record reflects that Dickson was alive in
2003 when the complaint was filed and was living when the
briefs on appeal were filed. The body of the complaint refers
to Lacey and Dickson as the plaintiffs.
Lacey amended the complaint on November 5, 2003, and
again on June 25, 2004. Both of these pleadings were styled
"Barbara
Lacey,
as
personal
representative
of
Margaret
Dickson," and the body of the complaint refers to Dickson and
Lacey as the plaintiffs. Vincent Pharmacy and Ehl filed their
answer, and included among their defenses was the defense that
"this action is not properly maintained by Barbara Lacey as
personal representative of Margaret Dickson." On April 23,
2004,
Lacey
filed
a
motion
styled
"Barbara
Lacey,
as
administrator of the Estate of Margaret Dickson." On August 8,
2005, Lacey filed a motion for leave to amend, seeking to
substitute as plaintiff "Margaret Dickson, by and through her
attorney-in-fact, Mary DiChiara," in place of "Barbara Lacey,
as
personal
motion,
Lacey
representative
admits
that
of
Margaret
Dickson
4
lacks
Dickson."
capacity
In
to
the
make
1061371
decisions for herself. The complaint attached to the motion
for leave to amend is styled "Margaret Dickson, by and through
her attorney-in-fact, Mary DiChiara." However, the body of the
complaint
refers
to
Dickson
as
the
plaintiff
and
further
states that "the plaintiff, Barbara Lacey, is over the age of
nineteen (19) years and a resident citizen of the State of
Alabama,
and
Margaret
Dickson."
complaint
is
the
personal
representative
Nowhere
DiChiara
in
the
mentioned,
body
even
of
her
mother,
of
the
amended
though
she
would
presumably be the plaintiff because Dickson lacks capacity and
Lacey is not Dickson's personal representative.
Vincent Pharmacy and Ehl filed a response, objecting to
the substitution on several grounds. Specifically, they argued
that
Rule
classes
of
17(a),
Ala.
individuals
R.
Civ.
–-
"an
P.,
provides
executor,
that
certain
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 bring
suit in their own names to redress the injuries of others;
they
noted
that
Lacey
did
not
fall
within
any
of
these
classes. They argued that Lacey's claimed power of attorney
5
1061371
did not authorize her to file an action on Dickson's behalf
because
attorneys-in-fact
are
not
one
of
the
classes
of
persons in Rule 17 and because no statute expressly allows the
commencement of an action by an attorney-in-fact.
They also
argued that Lacey failed to present a copy of the document
allegedly naming her as Dickson's attorney-in-fact and that,
under the best-evidence rule, Lacey's deposition testimony as
to the existence of the power of attorney would not have been
admissible.
On April 18, 2006, the trial court granted the motion to
amend and ordered that the plaintiff be identified as "Mary
DiChiara in place of Barbara Lacey as personal representative
of Margaret Dickson." I note that it is undisputed that since
2002 Dickson has been unable to make decisions on her own
behalf. I also note that nothing in the record indicates that
there
has
been
any
petition
for
a
protective
proceeding
initiated for the purpose of having a conservator appointed to
manage, as a court-appointed fiduciary, Dickson's estate and
affairs. See § 26-2A-130 et seq., Ala. Code 1975.
Vincent Pharmacy and Ehl contend that Lacey was not the
injured party and, therefore, that she did not have authority
6
1061371
to sue in her own name.
They argue that she did not have
legal capacity to sue on Dickson's behalf because she did not
have a legal relationship with Dickson when she filed the
complaint
on
August
4,
2003,
a
date
subsequent
to
the
revocation of the power of attorney, of which, they say, Lacey
had notice.
Thus, Vincent Pharmacy and Ehl contend that Lacey
could not thereafter substitute the real party in interest
under Rule 17, Ala. R. Civ. P.
DiChiara argues that Lacey had legal standing to sue on
Dickson's behalf when she filed the complaint in August 2003
because Lacey had never received notice that her power of
attorney had been terminated, and under Alabama law notice
must be given in order to terminate a power of attorney.
She
further argues that because Lacey believed she had a legal
relationship with Dickson, it was proper for the trial court
to allow substitution under Rule 17(a), Ala. R. Civ. P., and
that
that
substitution
of
parties
relates
back
for
the
purposes of the statute of limitations based on Miller v.
Jackson Hospital, 776 So. 2d 122 (Ala. 2000).
Rule 17(a), Ala. R. Civ. P., provides:
be
"(a) Real Party in Interest. Every action shall
prosecuted in the name of the real party in
7
1061371
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."
In a plurality opinion in Miller v. Jackson Hospital,
supra, this Court addressed whether an attorney-in-fact was a
real party in interest under Rule 17, Ala. R. Civ. P., and, if
not, whether the real party in interest could be substituted
after the complaint had been filed. In Miller, the patient, on
January 14, 1997, while hospitalized, suffered severe burns
over a large portion of his body.
On February 19, 1997, the
patient executed a durable power of attorney in favor of his
uncle.
On January 11, 1999, the patient's uncle brought a
medical-malpractice action against the hospital and several
physicians.
The uncle described himself in the caption as
"Charles Miller, on behalf of Roy Lee Miller."
The defendants
filed a motion to dismiss on the basis that the uncle was not
8
1061371
the real party in interest as required by Rule 17, Ala. R.
Civ. P.
On August 16, 1999, after the statute of limitations
had expired, the uncle moved to amend the complaint by adding
the patient as a named plaintiff.
The trial court entered a
summary judgment in favor of the defendants, concluding that
the uncle did not have the authority to sue on behalf of the
patient because the power of attorney did not specifically
address the uncle's bringing a personal-injury tort action on
behalf of the patient.
The trial court also held that because
the uncle was not the real party in interest the uncle did not
have standing to file the action on behalf of the patient and,
therefore, that the court never had jurisdiction over the
case.
Because the limitations period
had run before the
complaint was amended to add the patient as the plaintiff, the
court held that there was no valid complaint to which the
amendment could relate back.
The
Miller
Court
disagreed
with
the
trial
court's
conclusion that the power of attorney gave the uncle no power
to bring a personal-injury action on behalf of the patient.
The power of attorney in that case vested the uncle with the
authority
to
"'institute,
prosecute,
9
defend,
compromise,
1061371
arbitrate and dispose of legal, equitable, or administrative
hearings, actions, suits, attachments, arrests, distresses, or
other
proceedings,
or
otherwise
engage
in
litigation
connection with any legal or equitable matters.'"
at 125.
in
776 So. 2d
However, this Court held that the uncle, acting
pursuant to the power of attorney, could not bring the action
on the patient's behalf.
Rule 17(a) provides
that every
action has to be brought in the name of the real party in
interest except that "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 his or
her own name without joining the party for whose benefit the
action is brought.
The uncle's power of attorney did not
place him in any of the classes of persons named in these
exceptions, and no statute expressly allows the commencement
of an action by an attorney-in-fact.
This
Court
in
Miller
went
on
to
address
whether
the
uncle's lack of status as a real party in interest was curable
by amendment.
The defendants had argued that because the
uncle was not the real party in interest he never had standing
10
1061371
to sue and, as a result, the jurisdiction of the court to
adjudicate the patient's claim was never invoked.
This Court
held that the uncle, suing "on behalf of" the patient and
holding a valid and immediately effective durable power of
attorney, maintained a legal relationship with the real party
in interest sufficient to invoke the court's jurisdiction to
the extent necessary to allow Rule 17(a) to operate and allow
the patient to be substituted as the real party in interest.
"'"The
substitution
of
such
parties
after
the
applicable
statute of limitations may have run is not significant when
the change is merely formal and in no way alters the known
facts and issues on which the action is based.
The courts
have freely upheld the filing of an amended complaint under
these circumstances."'" 776 So. 2d at 127 (quoting Advanced
Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 19
(2d Cir. 1997), quoting in turn Staren v. American Nat'l Bank
& Trust Co., 529 F.2d 1257, 1263 (7th Cir. 1976)).
We held
that the complaint in Miller specifically named the patient
alleged to have been injured as a result of the defendants'
negligent acts, and no one presented evidence indicating that
11
1061371
the uncle's filing the complaint in the wrong name had been
deliberate.
I
believe
Miller
is
inapplicable
here
requested substitution is not "merely formal."
because
the
Lacey did not
attempt to sue on Dickson's behalf as her attorney-in-fact,
even under the revoked power of attorney.
the
complaint
Instead,
as
Lacey
Lacey's
described
representative."
suing
herself
"on
as
She did not caption
behalf
of"
Dickson's
Dickson.
"personal
Lacey admitted in her deposition that she
had never been named Dickson's "personal representative" and
that there were no proceedings pending to create an estate for
Dickson.
Lacey
was
Nothing in the original complaint indicates that
attempting
attorney-in-fact.
to
sue
on
Dickson's
behalf
as
her
Additionally, nothing in the two amended
complaints filed by Lacey on November 5, 2003, and June 25,
2004, indicate that Lacey was attempting to sue on Dickson's
behalf as her attorney-in-fact.
It is unclear from the record the exact date Dickson's
prescription was "mis-filled" by Vincent Pharmacy and Ehl and
Dickson ingested the incorrect medicine, although it appears
that the statute of limitations ran sometime in October 2004.
12
1061371
Lacey filed her motion to amend her complaint and substitute
DiChiara as Dickson's "personal representative" on August 8,
2005.
party
Although Rule 17(a) allows for substitution of the real
in
interest,
Lacey
was
not
Dickson's
personal
representative when she filed the complaint; therefore, she
had no legal relationship with Dickson.
trial
court
substituted
DiChiara
for
Furthermore, the
Lacey
as
Dickson's
personal representative when nothing in the record indicates
that DiChiara has in fact been named as Dickson's personal
representative.
Indeed, from the record, it appears that
Dickson is not deceased so as to necessitate the appointment
of a personal representative for her estate.
In
Alabama,
appointed
by
a
deceased person.
a
personal
probate
representative
judge
to
manage
is
the
a
fiduciary
affairs
of
a
It includes an "executor, administrator,
successor personal representative, special administrator, and
persons who perform substantially the same function under the
law governing their status." § 43-8-1(24), Ala. Code 1975.
Lacey was not a personal representative, and questioning her
ability to file an action in that capacity is not merely a
matter
of
semantics.
A
personal
13
representative,
whether
1061371
acting as an executor appointed pursuant to a decedent's will
or
as
an
administrator
appointed
by
a
probate
court
to
administer the estate of a decedent dying intestate, is an
office in and unto itself.
"The office of personal representative, that is,
executor or administrator, is of extreme importance
in Anglo-American law. This is not only because he
had important rights and duties in connection with
the settlement of his decedent's affairs, but also
for the reason that the estate is not recognized as
a legal entity. The representative is not regarded
as
an
agent
for
the
estate
for,
in
legal
contemplation, there is no such principal.
He is
regarded as the owner of the decedent's personal
property though his ownership is not beneficial and
will
be
terminated
upon
completion
of
the
administration. He is also an officer of the court
and as such vested with certain rights and burdened
with certain duties.
Though we often speak of
claims against, or in favor of, the estate these
expressions are apt to be misleading if taken too
literally. The personal representative and not the
estate is the one with whom the courts and third
persons are concerned."
Thomas E. Atkinson, Handbook on the Law of Wills 576 (2d ed.
1953) (footnote omitted) (emphasis added).
As Professor Atkinson stated, a personal representative
holds an office and cannot be considered an agent for the
decedent's estate, assuming that there is a decedent and a
decedent's estate.
It is an office Lacey never held and to
which she was not entitled to appointment, simply because
14
1061371
Dickson is alive.
twice
amended
Yet she listed herself through a complaint
as
Dickson's
personal
representative
and
additionally in a motion as the administrator of Dickson's
estate. As stated above, Lacey is not aided by Miller because
she never attempted through her pleadings to establish a valid
legal relationship between herself and Dickson within the
real-party-in-interest-substitution provision of Rule 17(a),
by having filed this action through a (revoked) power
of
attorney.
Although the parties address the issue of the efficacy of
the
substitution
of
DiChiara
for
Lacey
based
on
whether
Lacey's power of attorney was valid or had been revoked with
notice to Lacey, the disposition of the this permissive appeal
via a certified question from the trial court turns on whether
Lacey had standing to commence the action and whether the
complaint
substituting
DiChiara
can
relate
back
to
the
original complaint when the amended complaint substituting
Dichiara for Lacey states that Dickson is a plaintiff even
though
by
DiChiara
Lacey's
is
complaint.
not
own
admission
mentioned
in
she
the
is
body
incompetent
of
the
and
amended
Although the general rule is that a plaintiff need
15
1061371
not aver capacity to
sue or be sued, now that Lacey has
admitted that Dickson lacked capacity when the complaint was
filed, Dickson should not be referred to as a plaintiff.
Standing goes to the question of this Court's subjectmatter jurisdiction.
State v. Property at 2018 Rainbow Drive,
740 So. 2d 1025 (Ala. 1999).
Because the parties cannot
confer standing by waiver, we are not limited by the issues
presented on appeal when subject-matter jurisdiction is at
stake.
See Etheridge v. State ex rel. Olson, 730 So. 2d 1179,
1181 n. 3 (Ala. 1999)("This Court normally will not reverse a
judgment on a point not argued by the parties.
See Smith v.
Equifax Services, Inc., 537 So. 2d 463 (Ala. 1988).
However,
lack of subject-matter jurisdiction may not be waived by the
parties, and it is the duty of an appellate court to consider
lack of subject-matter jurisdiction ex mero motu.
Ex parte
Smith, 438 So. 2d 766 (Ala. 1983).").
Lacey had no standing to bring an action on Dickson's
behalf because she had no legal relationship with her, and the
trial court never acquired jurisdiction over Dickson's claims.
Accordingly, DiChiara could not be substituted for Lacey "as
[Dickson's]
personal
representative"
16
after
the
statute
of
1061371
limitations had run.
See State v. Property at 2018 Rainbow
Drive, 740 So. 2d at 1028 ("Because '[t]he lack of standing
[is] a jurisdictional defect,' the defect 'cannot be cured
nunc pro tunc back to the date when the original complaint was
filed.'
Tyler House Apartments, Ltd. v. United States, 38
Fed. Cl. 1, 7 (Fed. Cl. 1997).
In other words, a pleading
purporting to amend a complaint, which complaint was filed by
a party without standing, cannot relate back to the filing of
the original complaint, because there is nothing 'back' to
which to relate." (emphasis added)). 2
2
Because
Lacey
filed
the
complaint
as
personal
representative and did not have standing to do so, I have not
addressed whether Lacey had a power of attorney that purported
to give her authority to act on Dickson's behalf, because no
document purporting to give Lacey power of attorney is in the
record, nor do I address the effect of the revocation language
in DiChiara's power of attorney on Lacey's power of attorney.
17
