Patricia Brown, Individually and as Administratrix of the Estate of Michael Steven Brown, Deceased v. National Health Care of Pocahontas, Inc., d/b/a Randolph County Medical Center, Tina Hall, Mary Craig, Rose Throesch, Dr. Jeff Hall, John Doe #1, and John Doe #2
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DIVISION IV
PATRICIA BROWN, INDIVIDUALLY
AND AS ADMINISTRATRIX OF THE
ESTATE OF MICHAEL STEVEN
BROWN, DECEASED
APPELLANT
V.
NATIONAL HEALTH CARE OF
POCAHONTAS, INC., d/b/a RANDOLPH
COUNTY MEDICAL CENTER, TINA
HALL, MARY CRAIG, ROSE
THROESCH, DR. JEFF HALL, JOHN
DOE #1, AND JOHN DOE #2
APPELLEES
CA07-583
APRIL 16, 2008
APPEAL FROM THE RANDOLPH
COUNTY CIRCUIT COURT
[NO. CV-05-128]
HON. HAROLD S. ERWIN, JUDGE
AFFIRMED IN PART; REVERSED
AND REMANDED IN PART
Appellant Patricia Brown, individually and as special administratrix of the estate of her
husband, Michael Steven Brown, appeals from an order of the circuit court that granted
appellees’ motions for summary judgment and dismissed her complaint as barred by the
applicable statute of limitations. We reverse the court’s order of dismissal with respect to
appellee National Healthcare of Pocahontas, Inc., d/b/a Randolph County Medical Center
(hereinafter “Randolph County Medical Center” or “Randolph”). However, because no
complaint was filed against appellees Tina Hall, Mary Craig, Rose Throesch, and Dr. Jeff Hall
by a person vested with authority to act on behalf of the estate within the two-year statute-oflimitations period, we affirm with respect to these appellees.
Michael Steven Brown died on February 15, 2002, while a patient at Randolph
County Medical Center. On April 11, 2003, appellant filed a petition for appointment as
special administrator of Michael’s estate, which was granted, and an order appointing special
administratrix was filed that same day. The order stated in pertinent part as follows:
Patricia Brown be and is hereby appointed special administratrix of the estate
of Michael Steven Brown, deceased, for a period and term of six months
during which time she is empowered to and shall perform the following
specific duties and acts: Pursue potential medical negligence, tort and insurance
claims arising out of the incident that Michael Steven Brown was involved in
on February 15, 2002; and upon termination of the duties set forth herein
above or upon completion of the term of her appointment hereunder,
whichever shall first occur, she shall immediately make a full and complete
report of her actions and the condition and affairs of estate to this court . . ..
On June 10, 2003, appellant filed a complaint against Randolph County Medical
Center, alleging a cause of action for medical malpractice relating to the care provided by
Randolph to Michael Steven Brown. On February 12, 2004, appellant filed a second
amended and supplemental complaint again naming Randolph as a defendant, and adding
Tina Hall, Mary Craig, and Rose Throesch as additional defendants. On February 13, 2004,
appellant filed a third amended and supplemental complaint adding Dr. Jeff Hall, John Doe
#1, and John Doe #2 as additional defendants. On December 6, 2004, appellant obtained
a voluntary nonsuit against all of the defendants.
Almost a year later, on November 17, 2005, appellant obtained an order extending the
authority of her appointment as special administratrix “with the authority to pursue a
wrongful death action, until such time as the civil suit is brought to a final conclusion.”
Letters of administration were issued. That same day, appellant filed a complaint against the
same defendants that she had named in her second and third amended and supplemental
complaints.
All of the defendants moved for summary judgment claiming, first, that appellant did
not have standing to file her complaint because she did not have executed letters of
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administration at the time the initial complaint was filed on June 10, 2003, and, second, that
the statute of limitations ran before she refiled her complaint on November 17, 2005. In her
response, appellant claimed that letters of administration were not required for her to file a
complaint because the order of appointment had been entered when she filed her complaint.
She also asserted that the statute of limitations did not bar her lawsuit because Ark. Code Ann.
§ 16-62-102(c)(2) allows a wrongful-death action to be brought within one year from the
date of a nonsuit without regard to the date of death of the person alleged to have been
wrongfully killed. On February 27, 2007, the circuit court granted all of the defendants’
motions for summary judgment and dismissed appellant’s complaint.
Appellant contends that the circuit court erred in granting summary judgment for two
reasons. First, she asserts that she was not required to have executed letters of administration
in order to file her complaint. Second, she contends that the complaint was not barred by the
statute of limitations.
With regard to appellant’s first point, appellee Randolph County Medical Center
concedes in its response that, in light of the supreme court’s decision in Steward v. Statler, ___
Ark. ___, ___ S.W.3d ___ (Nov. 1, 2007), appellant was not required to have executed
letters of administration in order to file a complaint against Randolph on June 10, 2003,
because the order appointing appellant administratrix was entered before the complaint was
filed, was effective at the time the complaint was filed, and empowered her to act for the
estate without the necessity of letters of administration. The 2007 General Assembly enacted
Act 438, which amended the statutory provisions pertaining to the issuance of letters of
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administration. The amendment provides that the order appointing the administrator
empowers the administrator to act and that letters of administration “are not necessary to
empower the person appointed to act for the estate.” Ark. Code Ann. § 28-48-102(d)(Supp.
2007). In Steward, the supreme court held that Act 438 was procedural and was intended to
be applied retroactively. See also Banks v. Wilkin, ___ Ark. App. ___, ___ S.W.3d ___ (Jan.
23, 2008).
Randolph also concedes that appellant’s complaint against it was not barred by the
statute of limitations. The parties agree that the statute of limitations for appellant’s causes of
action against the appellees was two years. See St. Paul Mercury Ins. Co. v. Circuit Court of
Craighead County, 348 Ark. 197, 73 S.W.3d 584 (2002) (holding that the two-year statute of
limitations period for medical-malpractice actions set forth in Ark. Code Ann. § 16-114-203
applies to all causes of action for medical injury, including wrongful-death actions).
Appellant’s initial complaint against Randolph was filed on June 10, 2003, well within the
two-year statute of limitations. The complaint was nonsuited on December 6, 2004.
Randolph concedes that, under the savings statute, Ark. Code Ann. § 16-62-102(c)(2),
appellant had one year from the date of the nonsuit to refile her complaint against Randolph.
Appellant did this by refiling her complaint on November 17, 2005. Accordingly, the circuit
court erred in dismissing appellant’s complaint against it, and therefore we reverse and remand
the circuit court’s order with respect to appellant’s claims against Randolph.
The remaining appellees—Tina Hall, Mary Craig, Rose Throesch, and Dr.
Hall—contend that the circuit court’s order dismissing the complaint against them was correct
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because the statute of limitations ran as to the claims against them. They argue that, at the
time of the filing of the amended complaints adding them as defendants on February 12 and
13, 2004, appellant had no authority to file suit on behalf of the estate.
The wrongful-death code does not create an individual right in a beneficiary to bring
suit and, where no personal representative has been appointed, a wrongful-death suit must be
filed with all of the heirs at law of the deceased joined as parties to the suit. Ark. Code Ann.
§ 16-62-102(b) (Supp. 2005); see also Davenport v. Lee, 348 Ark. 148, 72 S.W.3d 85 (2002).
There is no argument here that all of the heirs at law were parties to this suit. Therefore, the
question is whether appellant was the personal representative of her husband’s estate at the
time she filed her complaints against the remaining appellees.
Pursuant to Ark. Code Ann. § 28-48-103, a court may appoint a special administrator
“for a specified time, to perform duties respecting specific property or to perform particular
acts, as stated in the order of appointment.” In this case, the order appointing appellant on
April 11, 2003, as special administratrix specifically stated that the term was for six months;
thus, her term expired on October 11, 2003, before she filed complaints against all of the
appellees except for Randolph. The supreme court has made it clear that, unless a person is
the personal representative or executor of the estate at the time of filing, he has no standing
to file a complaint on behalf of the estate and any complaint filed is a nullity. See Johnson v.
Greene Acres Nursing Home Ass’n, 364 Ark. 306, 219 S.W.3d 138 (2005). Because her
complaint was a nullity, her nonsuit on December 6, 2004, did not dismiss these complaints;
it dismissed only the properly filed complaint against Randolph.
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Appellant filed a petition for extension of appointment, which was granted on
November 17, 2005. That same day, appellant filed another complaint against all of the
appellees. This complaint was filed more than two years after the death of Michael Steven
Brown, which occurred on February 15, 2002.1 Because the first complaints filed against the
remaining appellees (other than Randolph) were nullities, the November 17, 2005 complaint
is the first complaint filed against them by a properly appointed personal representative. No
savings statute applies. The two-year statute-of-limitations period expired on February 15,
2004. Thus, appellant’s complaint against the remaining appellees is barred by the statute of
limitations. Accordingly, we affirm the circuit court’s order granting summary judgment and
dismissing the complaints against these appellees.
Affirmed in part; reversed and remanded in part.
GLOVER and MILLER, JJ., agree.
As mentioned above, Randolph concedes that, as to it, the complaint was timely
because of the savings statute, Ark. Code Ann. § 16-62-102(c)(2).
1
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