Estate of Mona L. Hernandez, Reynaldo Hernandez and Roselea Hernandez v. Marty Clark et al.

ca03-626

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

ESTATE OF MONA L. HERNANDEZ, REYNALDO HERNANDEZ AND ROSELEA HERNANDEZ,

APPELLANTS

V.

MARTY CLARK, et al.,

APPELLEES

CA03-626

JUNE 23, 20004

APPEAL FROM THE BENTON COUNTY CIRCUIT COURT,

NO. CIV97-190-1,

HON. TOMMY J. KEITH, JUDGE

AFFIRMED

                                                                                                           Sam Bird, Judge

This is an appeal from the dismissal of a survival and wrongful-death action based upon the death of Mona Hernandez in an automobile accident on October 6, 1995, in Rogers, Arkansas. In March 1997, Mona's parents, Reynaldo Hernandez and Roselea Hernandez, filed this action against appellees Marty Clark, the other driver; Diamond Star Motors, Inc.; Chrysler Corp., Inc.; and Mitsubishi Motors Corp., a/k/a Mitsubishi Corp. The Hernandezes brought this action under the following names: "Estate of Mona L. Hernandez, Reynaldo Hernandez and Roselea Hernandez, Husband and Wife, as parents, next of kin, and next friend of Mona L. Hernandez." The Benton County Circuit Court dismissed the lawsuit with prejudice on the grounds that appellants lacked standing to sue because there was no appointed personal representative of Mona's estate when the complaint was filed, only two of her four heirs at law had joined as plaintiffs in the complaint, and the three-year

statute of limitations had run. We affirm the circuit court's order of dismissal.  In July 2002, appellees moved to dismiss appellants' complaint with prejudice on the grounds that no personal representative had been appointed for Mona's estate; that the wrongful-death statute requires that all actions be brought by the personal representative or by all of the heirs at law of the deceased; that only two of Mona's four heirs at law were named plaintiffs; and that no valid complaint was filed within the applicable three-year statute of limitations. In support of their motion, appellees attached copies of the small-estate probate file opened for Mona by Reynaldo and appellants' answer to an interrogatory that identified Mona's heirs at law. Appellants' answer to the interrogatory listed Mona's parents and her two sisters, Angela Pantega and Jessica Jacobson. Angela and Jessica were not named as plaintiffs in this action. The petition for probate of small estate filed by Reynaldo with the Benton County Probate Court on October 9, 1996, nominated Reynaldo as the administrator of the estate; however, no personal representative was appointed.1 The affidavit signed by Reynaldo and attached to the petition stated: "No petition for the appointment of a personal representative is pending or has been granted."

In response to the motion to dismiss, appellants stated: "Reynaldo is the personal representative of the Estate of Mona Hernandez. Consequently, Arkansas Code Annotated § 16-62-102 is satisfied.... Reynaldo Hernandez has acted as the de facto personal representative of the Estate of Mona L. Hernandez since October 9, 1996." Appellants also asserted that Reynaldo's appointment was retroactive. As an attachment to their response, appellants filed copies of Reynaldo's July 25, 2002, appointment as the personal representative of Mona's estate and his letters of administration issued by the probate division of the Benton County Circuit Court.

On August 27, 2002, appellants filed an amended complaint that added Reynaldo, as the personal representative of Mona's estate, and added Angela and Jessica as plaintiffs. The amended complaint incorporated the claims in the original complaint and stated:

The Complaint is hereby amended to include Reynaldo Hernandez as the personal representative of the Estate of Mona L. Hernandez. He filed the lawsuit as the de facto personal representative of the Estate of Mona L. Hernandez. However, he has been officially appointed as personal representative of the Estate of Mona L. Hernandez, and he was and is also bringing the suit in his own name as in the original Complaint.

All appellees moved to strike the amended complaint. After a hearing, the trial court granted the motion to dismiss and to strike the amended complaint. This appeal followed.

Pursuant to Ark. R. Civ. P. 12(b), a motion to dismiss is converted into a motion for summary judgment when matters outside the pleadings are presented to and not excluded by the court. Because it is clear that here the circuit court considered matters outside the pleadings, the order should be treated as one for summary judgment. See Ford v. Arkansas Game & Fish Comm'n, 335 Ark. 245, 979 S.W.2d 897 (1998). We approve the granting of a motion for summary judgment only when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admissions on file is such that the nonmoving party is not entitled to a day in court, i.e., when there is not any genuine remaining issue of material fact and the moving party is entitled to judgment as a matter of law. Cumming v. Putnam Realty, Inc., 80 Ark. App. 153, 92 S.W.3d 698 (2002). The burden of proving that there is no genuine issue of material fact is upon the movant, and all proof submitted must be viewed favorably to the party resisting the motion. Id. On appellate review, we determine if summary judgment was proper based on whether the evidence presented by the movant left a material question of fact unanswered. Id.

As for the striking of the amended complaint, we note that the trial court has broad discretion regarding amendment of the pleadings, and the exercise of that discretion will be sustained unless it is manifestly abused. Stephens v. Petrino, 350 Ark. 268, 86 S.W.3d 836 (2002).

Appellants make the following arguments on appeal: (1) the complaint was sufficient to overcome the motion to dismiss because the Hernandezes asserted individual claims for the damage to their vehicle, which was driven by Mona at the time of the accident; (2) a genuine issue of fact concerning the damage to the Hernandezes' vehicle remained for trial; (3) precedent should be overruled, and Reynaldo's appointment as personal representative should be held to have related back to his actions as the de facto personal representative; (4) in cases dealing with a small estate that requires no administration, an exception should be made to the rule that only the personal representative or all of the heirs can pursue a wrongful-death action; (5) the amended complaint related back to the original filing because the Hernandezes' individual claims for damage to their vehicle survived dismissal; (6) the original complaint could be amended to include necessary parties.

The Hernandezes' Claims for Damage to Their Vehicle

We will address appellants' first, second, and fifth arguments together, because they are all based upon appellants' contention that they asserted individual claims for damage to their vehicle in their original complaint and that these claims were unrelated to any defect in parties as to the survival and wrongful-death claims. They argue that the original complaint was not a nullity; that the amended complaint related back to the original complaint; that the personal representative, a necessary party, could be added; and that the statute of limitations did not run.

It is true that appellants sought damages for the destruction of their vehicle in several paragraphs of their complaint. However, according to the abstract and addendum, appellants did not make this argument to the trial court. We will not address issues that were not presented to or ruled on by the trial court. Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997). An appellant's failure to obtain a ruling on an argument is a procedural bar to this court's consideration of that issue on appeal. Rhuland v. Fahr, ___ Ark. ___, ___ S.W.3d ___, 2004 WL 439957 (Mar. 11, 2004); Travelers Cas. & Sur. Co. of Am. v. Arkansas State Highway Comm'n, 353 Ark. 721, 120 S.W.3d 50 (2003); Estate of Byrd v. Tiner, 81 Ark. App. 366, 101 S.W.3d 877 (2003). Therefore, we do not consider these issues.

Arkansas's Survival & Wrongful-Death Statutes

Appellants' third, fourth, and sixth arguments will also be considered together. Although appellants acknowledge the rule that the appointment of a plaintiff as a personal representative after a lawsuit has been filed does not relate back to the filing of the original complaint and does not confer standing on the plaintiff, see McKibben v. Mullis, 79 Ark. App. 382, 90 S.W.3d 442 (2002), which is discussed below, they ask us to overrule McKibben v. Mullis because of the special circumstances presented here. That case, however, was based upon previous decisions of the supreme court, which we are powerless to overrule. McCormick v. State, 74 Ark. App. 349, 48 S.W.3d 549 (2001).

Appellants point out that Reynaldo opened a small estate for Mona in 1996 and argue that he acted as a de facto personal representative at the time of the filing of the original complaint. They also note that the small-estate statute, Ark. Code Ann. § 28-41-101, does not require the appointment of a personal representative if certain conditions are met. Appellants argue that Reynaldo had established standing by the time that this lawsuit was dismissed and ask us to follow the decisions of other states holding that, although a personal representative was not appointed until after he had filed suit, his power to perform acts that benefitted the estate can relate back to the time of the decedent's death. However, the decisions of our supreme court and this court on the subject are so clearly contrary to appellants' position that they do not permit an exception to be made in this case.

In Arkansas, a survival action must be brought by a decedent's "executor or administrator." Ark. Code Ann. § 16-62-101(a)(1) (Supp. 2003). A wrongful-death action must be brought by and in the name of the personal representative of the deceased person. Ark. Code Ann. §§ 16-62-102(b) (Supp. 2003). If there is no personal representative, then the action shall be brought by the heirs at law of the deceased person. Id.; Davenport v. Lee, 348 Ark. 148, 72 S.W.3d 85 (2002). The supreme court has construed the term "heirs at law" as used in this section to mean all of the beneficiaries of the wrongful-death suit. Ramirez v. White County Circuit Court, 343 Ark. 372, 38 S.W.3d 298 (2001). With respect to whether a cause of action is stated, a wrongful-death action is a creation of statute and is in derogation of or at variance with the common law; therefore, the wrongful-death statute must be strictly construed and nothing may be taken as intended that is not clearly expressed. See Rhuland v. Fahr, supra, where, applying the rules of statutory construction, the supreme court held that the language of Ark. Code Ann. § 16-62-102(b) is clear and unambiguous - if there is no personal representative of the deceased person, a wrongful-death action must be brought by all of the heirs at law. Because the wrongful-death action is a creation of statute and exists only in the manner and form prescribed by statute, an action brought by less than all of the heirs of the deceased is a nullity. St. Paul Mercury Ins. Co. v. Circuit Court of Craighead County, 348 Ark. 197, 73 S.W.3d 584 (2002); Sanderson v. McCollum, 82 Ark. App. 111, 112 S.W.3d 363 (2003), McKibben v. Mullis, supra.

In McKibben v. Mullis, we affirmed the circuit court's dismissal of a wrongful-death action brought by the decedent's husband because he had not at that time, as claimed in the complaint, been appointed executor of his wife's estate and, therefore, he lacked standing. We held that the husband's subsequent appointment as executor of the estate did not relate back to the filing of the original complaint, which was a nullity, and explained:

Appellant asserts that when the probate court appointed him executor of his wife's estate on February 13, 2001, it related back to the original complaint. In Davenport v. Lee, 348 Ark. 148, 72 S.W.3d 85 (2002), where non-lawyer estate administrators filed a wrongful-death complaint, our supreme court stated, "[B]ecause the original complaint, as a nullity never existed, ... an amended complaint cannot relate back to something that never existed, nor can a nonexistent complaint be corrected." 348 Ark. at 164, 72 S.W.3d at 94. The Davenport court affirmed the dismissal of the case and the trial court's finding that subsequent pleadings filed by attorneys could not relate back to the original complaint. Likewise, in the present case, the appointment of appellant as executor did not relate back to the filing of the original complaint because the complaint was a nullity.

79 Ark. App. at 386, 90 S.W.3d at 445.

In Sanderson v. McCollum, supra, we affirmed the trial court's dismissal of the appellants' wrongful-death complaint, holding that the pro se complaint brought by the decedent's wife in her individual capacity was a nullity because it was not brought in the names of all of the heirs. We said that the amended complaint brought by the wife on behalf of herself, the heirs, and the estate was also a nullity because she had not been appointed as the personal representative. We also pointed out that we are bound to follow the precedent established by the supreme court.

In Estate of Byrd v. Tiner, supra, we rejected the appellant's argument that the complaint could be amended to add a necessary party, the executrix, to cure the lack of standing of the original plaintiff, the estate:

In February 2001, when the Estate moved to amend its complaint by substituting or adding the name of Nina Coffee, personal representative, as plaintiff, there was no complaint to amend because the original complaint was a nullity. See McKibben v. Mullis, 79 Ark. App. 382, 90 S.W.3d 442 (2002). Furthermore, had the amendment been allowed, it would have constituted the commencement of a new action for which the period of limitations had expired. For these reasons, we hold that the Estate was statutorily barred from bringing this wrongful-death suit and that the trial court did not err in denying the motion to amend the complaint by naming the personal representative of the Estate as plaintiff.

81 Ark. App. at 370, 101 S.W.3d at 890.

The supreme court has recently addressed this subject in Rhuland v. Fahr, supra. In that case, the original complaint, filed December 5, 2000, listed the plaintiffs as "Mildred Atkinson, in her capacity as the wife of James Murl Atkinson, deceased, Jamie Anne Rhuland, Donna Poe, and Penny Fuller in their capacity as natural children of deceased James Murl Atkinson." The decedent died on July 18, 1999. The plaintiffs settled with some defendants and took nonsuits against others by April 1, 2002. On March 21, 2002, an amended complaint was filed. Its style read: "The Estate of James Murl Atkinson, deceased, Jamie Anne Rhuland, as Administratrix and in her capacity as a natural child of the deceased James Murl Atkinson, and Donna Poe and Penny Fuller in their capacity as the natural children of the deceased James Murl Atkinson, and Mildred Atkinson in her capacity as the wife of James Murl Atkinson." A defendant moved to dismiss on the grounds that the plaintiffs lacked standing to file the original complaint; that the filing of the original complaint did not toll the statute of limitations; and that the amended complaint filed after the expiration of the limitations period was barred. The trial court agreed, relying on St. Paul Mercury Insurance Co. v. Circuit Court of Craighead County, supra.

On appeal, the supreme court affirmed, stating:

We find the reasoning of this court in St. Paul to be persuasive in the present case. When Rhuland filed her original complaint she did so in her capacity as an heir, as evidenced by the styling of the complaint. This fact is further proven by Rhuland's attempt to mislead the court in her amended complaint by stating that "since the filing of the original complaint, an estate has been opened," when in reality the estate had been opened prior to the filing of the original complaint. As such, Rhuland, as an heir, is a distinct legal entity from Rhuland, as an administratrix, and Rhuland, as an heir, lacked standing to file this wrongful-death suit. Thus, she was not the real party in interest at the time that she filed the original complaint. In Ramirez, 343 Ark. 372, 38 S.W.3d 298, this court rejected the appellants' argument that we should broadly construe the class of beneficiaries to include persons not specifically named. We likewise reject Rhuland's argument that we read into the original complaint something that simply was not there.

For her second point on appeal, Rhuland argues that the amended complaint she filed after the limitations period expired should relate back to the timely filing of the original complaint, pursuant to Ark. R. Civ. P. 15(c). Fahr counters that Rule 15 is inapplicable, as the original complaint constituted a nullity because it was not filed by the proper plaintiff, thus, there was nothing for the original complaint to relate back to. We agree that Rule 15 is inapplicable in the present case.

Rule 15 provides in relevant part:

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

This court has held that Rule 15 is a procedural rule that controls how a party may amend existing pleadings. Before the rule can apply, however, there must be pleadings to amend. See St. Paul, 348 Ark. 197, 73 S.W.3d 584.

In St. Paul, the court discussed the application of Rule 15, stating:

Rule 15 applies, for example, when an amendment permissibly changes the party against whom the claim is asserted or adds a party after the statute of limitations has run, and it may relate back to the time of filing of the original complaint. Rule 15 makes liberal provision for amendments to pleadings and even allows a plaintiff to amend to add new claims arising out of the conduct alleged in the initial valid complaint. These cases, and the cited case law, all deal with a plaintiff amending an existing valid pleading to state a new cause of action against a defendant or to add a new defendant where proper. Rule 15 simply would not help the appellees in this case because there was no pleading to amend when the Thomases filed their "amended complaint" as administrators.

348 Ark. at 204-05, 73 S.W.3d at 588 (citations omitted).

In St. Paul, this court stated that the amended complaint substituted out the original plaintiffs and substituted in entirely new plaintiffs. According to our decision in that case, this substitution of entirely new plaintiffs resulted in the filing of a newsuit and did not constitute an amendment under Rule 15. Id. (citing Floyd Plant Food Co. v. Moore, 197 Ark. 259, 122 S.W.2d 463 (1938)).

Rhuland v. Fahr, ___ Ark. at ___, ___S.W.3d at ___.

It is, therefore, clear that a complaint that is a nullity cannot be cured by the relation-back doctrine. As the supreme court pointed out in Davenport v. Lee, supra, there is nothing to amend, and nothing to which an amendment can relate back, when a complaint is a nullity:

Having determined that the original pro se complaint was a nullity, it is unnecessary for us to analyze Appellants' arguments that Ark. R. Civ. P. 15 or 17 should be applied to salvage their cause of action. These rules cannot apply, because the original complaint, as a nullity never existed, and thus, an amended complaint cannot relate back to something that never existed, nor can a nonexistent complaint be corrected.

348 Ark. at 164, 72 S.W.3d at 94.

Following these decisions, as we must, we hold that the circuit court correctly dismissed this lawsuit.

Affirmed.

Gladwin and Griffen, JJ., agree.

1 Arkansas Code Annotated section 28-41-101 (Repl. 2004) does not require that a personal representative be appointed in the administration of certain small estates.