Jason Forrester, Administrator of the Estate of Tawnya Lynn Forrester v. Jacquelyn White, M.D.
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
JOHN B. ROBBINS, JUDGE
DIVISION III
CA 0713
FEBRUARY 6, 2008
JASON FORRESTER, Administrator of
the Estate of Tawnya Lynn Forrester
APPELLANT
APPEAL FROM THE FAULKNER
COUNTY CIRCUIT COURT
[NO. CV04190]
V.
HONORABLE DAVID LEE
REYNOLDS, JUDGE
JACQUELYN WHITE, M.D.
APPELLEE
REVERSED AND REMANDED
This is a medical malpractice case. Appellant Jason Forrester, as administrator of the
estate of Tawnya Lynn Forrester, appeals from an order dismissing his complaint against
appellee Jacquelyn White, M.D. We reverse and remand.
Mrs. Forrester died on March 23, 2001. On October 10, 2002, Mr. Forrester, the
husband of the deceased, filed a petition for appointment as administrator of her estate. On
October 23, 2002, the trial court entered an order appointing Mr. Forrester, which recites in
pertinent part:
It is therefore by the Court CONSIDERED and ORDERED that Jason Forrester is
hereby appointed as the Administrator of the Estate of Tawyna [sic] Forrester and he
shall be allowed to serve without bond; that Letters Testamentary shall be issued to
said Administrator upon filing of his Acceptance of Appointment; and that any notice
required by Law may be made through the ordinary mail to the last known address of
the person to whom notice is required.
On March 5, 2003, Mr. Forrester filed his original complaint against Dr. White,
alleging that Dr. White failed to properly diagnose, treat, and admit Mrs. Forrester to the
hospital for pneumonia ultimately resulting in her death. On July 9, 2003, appellant’s
original complaint was nonsuited and dismissed without prejudice. On March 1, 2004,
Mr. Forrester filed his second complaint, continuing to allege medical negligence against
Dr. White.
On January 26, 2005, Mr. Forrester filed his acceptance of appointment as personal
representative, and on that same day the clerk of court issued letters of administration. The
letters of administration provide that Mr. Forrester “is hereby authorized to act as such
personal representative for and in behalf of the estate and to take possession of the estate’s
property as authorized by law.” Mr. Forrester later amended his second complaint by filing
an amended petition on August 23, 2006.
On August 29, 2006, Dr. White filed a motion to dismiss appellant’s second
complaint. In her motion, Dr. White asserted that both of appellant’s complaints were
nullities because they were filed prior to the issuance of letters of administration. Further,
Dr. White asserted that dismissal of appellant’s complaint should be with prejudice because
the applicable twoyear statute of limitations had expired, and alternatively because it was
the second dismissal of appellant’s action requiring dismissal with prejudice under Ark. R.
Civ. P. 41(b).
On September 12, 2006, Mr. Forrester filed a response to Dr. White’s motion to
dismiss, and Dr. White filed a reply in support of her motion on September 13, 2006. On
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September 14, 2006, a hearing was held on Dr. White’s motion to dismiss. At the conclusion
of the hearing, the trial court announced that the motion to dismiss would be granted because
“the personal representative in this case, Jason Forrester, did not have authority or capacity
to sue at the time this lawsuit was filed because he had not accepted the letters nor had the
letters been issued.” The trial court entered an order dismissing Mr. Forrester’s complaint
with prejudice on September 15, 2006, and Mr. Forrester now appeals from that order.
For reversal of the trial court’s order, Mr. Forrester argues that the October 23, 2002,
order appointing him administrator vested him with the authority to act on behalf of the
estate. He contends that the letters of administration were merely evidence of his authority,
and were not required to grant the authority. Mr. Forrester asserts that the purpose of letters
of administration is only to provide notice to those dealing with a personal representative of
his capacity to act. We agree.
The 2007 General Assembly enacted Act 438, which amended the statutory provisions
pertaining to the issuance of letters of administration. That legislation is codified at Ark.
Code Ann. § 2848102(d) (Supp. 2007), and provides:
(d)(1)(A) Letters of administration are not necessary to empower the person
appointed to act for the estate.
(B) Letters of administration are for the purpose of notifying third parties that
the appointment of an administrator has been made.
(2) 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.
This Act became effective on July 31, 2007, more than ten months after entry of the
September 15, 2006, order dismissing Mr. Forrester’s complaint.
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In Steward v. Statler, Ark. , S.W.3d (Nov. 1, 2007), our supreme court was
presented with the question of whether Act 438 applies retroactively or only prospectively.
In holding that Act 438 applies retroactively, the supreme court wrote:
Statutes which do not create, enlarge, diminish, or destroy contractual or vested
rights, but relate only to remedies or modes of procedure, are not within the general
rule against retrospective operation. In other words, statutes effecting changes in civil
procedure or remedy may have valid retrospective application, and remedial
legislation may, without violating constitutional guarantees, be construed to apply to
suits on causes of action which arose prior to the effective date of the statute.
In this case, it is clear to this court that Act 438 of 2007 does not disturb a
vested right or create a new obligation. Before Act 438, a personal representative
already had the right to bring a wrongfuldeath action against a defendant. Act 438
of 2007 simply provides that the personal representative has the right to bring the
action at the time the order appointing the personal representative is entered, not
merely at the time the letters of administration are entered. Therefore, we conclude
that Act 438 is procedural and was meant to be applied retroactively.
(citations omitted.) In Steward, supra, the supreme court relied on Act 438 in reversing an
order dismissing appellants’ complaint, where the complaint was filed after appellants were
appointed as special coadministrators of the estate, but before the letters of special
administration were issued by the clerk. The supreme court held that the appointment as co
administrators gave the appellants the power to file the complaint. As in the case at bar, the
dismissal order in Steward was entered before Act 438 became effective.
Subsequent to the supreme court’s decision in Steward, supra, we had occasion to
address this same issue. See Banks v. Wilkin, Ark. App. , S.W.3d (Jan. 23, 2008).
We held that the order appointing the personal representative, not the letters of
administration, empowered the administrator to file the wrongful death action.
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Consequently, in light of Act 438, our supreme court’s holding in Steward, supra, and
our decision in Banks, supra, Mr. Forrester was empowered to act when the trial court
entered the October 23, 2002, order appointing him as administrator. The letters of
administration were not necessary to vest Mr. Forrester with the authority to sue, and
thus each of his complaints was validly filed. Therefore, the trial court’s order granting
Dr. White’s motion to dismiss must be reversed.
Reversed and remanded.
GRIFFEN and MARSHALL, JJ., agree.
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