Doris O. Johnson v. D. Mark McCoy, M.D., et al.

Annotate this Case
ca03-990

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

DORIS O. JOHNSON

APPELLANT

V.

D. MARK MCCOY, M.D., ET AL.

APPELLEES

CA03-990

April 28, 2004

APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT

[NO. CIV-01-149]

HON. GARY RAY COTTRELL,

JUDGE

AFFIRMED

John Mauzy Pittman, Judge

Appellant, decedent's widow, filed a complaint for wrongful death alleging medical malpractice on the part of appellees. The complaint was not filed on behalf of all of the decedent's heirs at law, and appellant was not appointed as special administrator of decedent's estate until several days after her complaint was filed. Appellees subsequently filed a motion for summary judgment asserting that the trial court lacked jurisdiction and that the suit was time-barred because appellant failed either to obtain appointment as special administrator before filing the suit, or to join the other heirs-at-law in the suit within the applicable statute of limitations. The trial court granted the motion for summary judgment, and this appeal followed. We affirm.

Arkansas Code Annotated ยง 16-62-102(b) (Supp. 2003) requires that every wrongful-death action shall be brought by the personal representative of the deceased or, if there is no personal representative, by the heirs at law of the deceased. The Arkansas Supreme Court has held that, if there is no personal representative of the deceased person, and if there is more than one heir at law, then a single heir at law lacks standing to bring the action. Ramirez v. White County Circuit Court, 343 Ark. 372, 38 S.W.3d 298 (2001). A complaint brought by a single heir is a nullity and cannot be cured by the relation-back of an amendment. St. Paul Mercury Ins. Co. v. Circuit Court of Craighead County, 348 Ark. 197, 73 S.W.3d 584 (2002).

Appellant recognizes these holdings but argues that the supreme court was mistaken in its construction of the statute. Appellant gives no novel or persuasive reason for a change in this established rule and, because we are powerless to overrule the decisions of the Arkansas Supreme Court, we must affirm. See McCormick v. State, 74 Ark. App. 349, 48 S.W.3d 549 (2001); Brewer v. State, 68 Ark. App. 216, 6 S.W.3d 124 (1999).

Affirmed.

Stroud, C.J., and Griffen, J., agree.