Michael Hensley v. Estate of Brian Reddell, Deceased
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
D.P. MARSHALL JR., JUDGE
DIVISION II
CA07-1291
June 4, 2008
MICHAEL HENSLEY
APPELLANT
ESTATE OF BRIAN REDDELL,
DECEASED
APPELLEE
AN APPEAL FROM FAULKNER
COUNTY CIRCUIT COURT
[No. CV-06-169]
HONORABLE CHARLES CLAWSON, JR.
JUDGE
REVERSED AND REMANDED
This is an appeal from a summary judgment for appellee, Estate of Brian Reddell, the
defendant in a personal-injury suit in Faulkner County Circuit Court brought by appellant,
Michael Hensley, for injuries he suffered in an accident that occurred on Interstate 40 in
Conway on February 28, 2003. Brian Reddell was the owner of, and a passenger in, the
vehicle being driven at that time by Brian Smith. Appellant was also a passenger. As a result
of the accident, both Smith and Reddell were killed. We hold that the circuit court erred in
granting summary judgment to appellee, and, therefore, we reverse and remand.
Appellant filed a petition for appointment of an administrator for Reddell’s estate on
February 26, 2006, and nominated David Davies, an attorney in Conway, as administrator.
That same day, the circuit court’s probate division entered an order appointing Davies as
administrator of the estate. On February 27, 2006, appellant filed his personal injury
complaint against “The Estate of Brian K. Reddell, Deceased.” The summons, however,
listed Davies as the defendant, and he accepted service. In response, appellee denied any
negligence on the part of Reddell and reserved the right to object on the basis of failure to
join a party under Arkansas Rule of Civil Procedure 19.
On May 16, 2007, appellee moved for summary judgment, arguing that the case must
be dismissed because appellant failed to bring the action against the proper party — Davies,
the administrator of Reddell’s estate. Appellee first argued that, even though the order
appointing the administrator had instructed him to make a reasonable and diligent search for
the heirs of the estate, the administrator took no action on behalf of the estate after the
issuance of the letters of administration; Davies was, therefore, a special administrator,1 actually
appointed for the sole purpose of accepting service of the complaint. Appellee then argued
that a suit against the estate of an individual must be filed against the administrator; that,
according to Doepke v. Smith, 248 Ark. 511, 452 S.W.2d 627 (1970), a special administrator
cannot be appointed for the sole purpose of accepting service of process; that the statute of
limitations had expired; and that appellant failed to obtain service on the proper party and,
therefore, the complaint must be dismissed with prejudice. To its motion, appellee attached
copies of the police report, the petition for appointment of an administrator, and the order
appointing Davies.
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Ark. Code Ann. § 28-48-103 (Repl. 2004) provides for the appointment of special
administrators.
2
In response, appellant admitted that the statute of limitations had run; argued that
appellee had waived the real-party-in-interest problem; and asked the court to grant him a
reasonable amount of time to substitute the administrator for the estate if the issue had not
been waived. He also asserted that, although a special administrator cannot be appointed solely
to receive service of process, a general (not a special) administrator had been appointed in this
case. In any event, he argued, even if the court were to vacate Davies’s appointment, Davies’s
acceptance of service was valid according to Ark. Code Ann. § 28-1-115(b) (Repl. 2004).
In reply, appellee argued that the fact that the order implied that Davies’s appointment
was as a general, and not a special, administrator did not alter the fact that it was actually
special in nature because his only action was to accept service of process. Appellee also stated
that Davies had indicated in correspondence with Reddell’s liability insurance carrier that he
was merely a special administrator, citing an attached March 23, 2006 letter from Davies
which stated: “The faxing of this complaint to you this afternoon as well as the mailing of the
complaint to you on Friday, March 24, 2006, will satisfy my responsibility regarding this
matter as the personal representative of the Estate of Brian Reddell.” Appellee also noted an
attached e-mail dated March 24, 2006, between Davies and the insurance representative in
which Davies stated: “I am just the Special Administrator, I am not the appointed attorney
for the Estate. I would contact Keith Coker at 479-968-8662 to find out more about Mr.
Reddell’s family. I apologize that I could not be of more assistance.”
The circuit court entered summary judgment for appellee on September 17, 2007,
incorporating its letter opinion, which stated:
The defendant’s allegations are twofold. First, the suit was not brought in the
name of the real party of interest. Pursuant to Rule 17 of the Arkansas Rules of Civil
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Procedure must be brought against the real party and [sic] interest that being a person
who can discharge the claim, the defendant. Their second line of argument is that Mr.
Davies was a special administrator appointed solely for the purposes of accepting
summons and therefore is not proper under applicable case law.
The plaintiff on the other hand contends that it is form over substance basically.
That the estate was named as a defendant and the summons was issued in the name of
Mr. Davies and therefore his role in the case is there is a sufficient nexus over the
estate for purposes of disposing of this claim. In some correspondence that is attached
to the motion, which is unrefutted, [sic] Mr. Davies as much as admits that he was
appointed for that purpose and disclaims any further responsibility after he delivered
the summons to the insurance carrier. This is clearly not the case based upon the order
which appointed him and required him to take certain steps to notify the heirs and to
continue in his efforts as the administrator. It is clear from the record that he did
nothing further beyond accepting service and forwarding the service and complaint.
It would seem to the Court that the possible responsibilities of the administrator in this
case would go beyond that. There is potentially a cross complaint which could be filed
against the estate of and the administrator of Brian Smith for injuries and wrongful
death suffered by Mr. Reddell or at least contribution for any damages found to be the
result of Mr. Reddell’s actions. However that issue is not before the Court, except to
the extent that it reflects Mr. Davies was appointed solely for the purpose of accepting
summons. Had he notified the heirs they could have consulted him as counsel and/or
sought separate counsel to explore any potential claims that the estate may have. At
this point however that is too late. This conduct clearly runs afoul of the Supreme
Courts ruling in Doepke vs. Smith, 248 Ark. 511 (1970). Therefore, the Court finds
that summary judgment is appropriate and as noted above should be granted.
Appellant then pursued this appeal.
We will 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
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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.
Appellant makes five arguments, three of which can be quickly decided. Appellant first
argues that the circuit court improperly considered documents that are not included in those
items that the court may consider in deciding summary-judgment motions under Ark. R.
Civ. P. 56 (c). He states that the copy of the police report, which was attached to the motion,
and the letter and e-mail message between the estate’s administrator and the insurance
representative, which were attached to appellee’s reply to appellant’s response to the motion,
should not have been considered. In his fourth point, appellant also contends that the letter
and e-mail contained inadmissible hearsay. In his third point, appellant asserts that the trial
court had no authority to essentially transform a general administrator into a special
administrator or to invalidate Davies’s acceptance of process.
We need not, however, address these three arguments. Regardless of whether the
circuit court should have reviewed these documents or had the authority to reach its decision,
it is apparent that appellee failed to establish a prima facie case of entitlement to summary
judgment because the order appointing Davies as administrator reflects the appointment of
a general administrator. Appellant concedes in his second point that a special administrator
cannot be appointed solely for service of process. Nevertheless, he argues, those cases do not
apply in this case because the summons was issued to the administrator and there was no
confusion about who the true defendant was. We agree with appellee and the circuit court
that Davies’s letter and e-mail revealed his intent to perform no duties for the estate other
than to accept service. However, because the order appointing Davies was expressed in
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general terms, the circuit court could not decide that his appointment was actually as a special
administrator without deciding a question of fact. Therefore, this case should not have been
decided by summary judgment.
In his fifth point, appellant argues that the circuit court erred in refusing to let him
substitute Davies as the defendant. We agree. Even if Davies was really a special administrator
whose only task was to accept service of process, Arkansas case law and the rules of civil
procedure did not require dismissal of the complaint. Instead, the proper course would have
been to permit appellant to substitute Davies as the defendant. Clearly, Davies was the proper
party for appellant to sue. Arkansas Code Annotated section 28-48-102(d)(2) (Supp. 2007)
states: “The order appointing the administrator empowers the administrator to act for the
estate, and any act carried out under the authority of the order is valid.” See Steward v. Statler,
371 Ark. 351, __ S.W.3d __ (2007); Ark. Code Ann. § 28-9-203 (Repl. 2004). Davies was
also a necessary party according to Ark. R. Civ. P. 19(a), which states:
A person who is subject to service of process shall be joined as a party in the action if
(1) in his absence complete relief cannot be accorded among those already parties, or,
(2) he claims an interest relating to the subject of the action and is so situated that the
disposition of the action in his absence may (i) as a practical matter, impair or impede
his ability to protect that interest, or, (ii) leave any of the persons already parties subject
to a substantial risk of incurring double, multiple or otherwise inconsistent obligations
by reason of his claimed interest. If he has not been joined, the court shall order that
he be made a party. If he should join as a plaintiff, but refuses to do so, he may be
made a defendant; or, in a proper case, an involuntary plaintiff.
Arkansas Rule of Civil Procedure 15 gave the circuit court authority to permit
appellant to amend his complaint, which would relate back to the original complaint:
(a) Amendments. With the exception of pleading the defenses mentioned in Rule
12(h)(1), a party may amend his pleadings at any time without leave of the court.
Where, however, upon motion of an opposing party, the court determines that
prejudice would result or the disposition of the cause would be unduly delayed
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because of the filing of an amendment, the court may strike such amended pleading
or grant a continuance of the proceeding. A party shall plead in response to an
amended pleading within the time remaining for response to the original pleading or
within 20 days after service of the amended pleading, whichever period is longer,
unless the court otherwise orders.
....
(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.
Thus, Rule 15 (c) permits changing the party against whom a claim is asserted if the
party sought to be brought into the case received such notice of the action that he would not
be prejudiced if brought in and he knew or should have known that, but for mistake, he
would have been made a defendant initially. Davies’s acceptance of the summons on behalf
of the estate clearly satisfied this rule.
Reversed and remanded.
GRIFFEN and HEFFLEY, JJ., agree.
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