Davenport v. Lee, M.D., 00-696

• Decision Date: 04 April 2001
• Docket Number: 00-696
• Citation: 40 S.W.3d 346
• Parties: Ron and Ramona DAVENPORT, as the Administrators of the Estate of Linda Kay Moore, Deceased, or, in the Alternative, Ron and Ramona Davenport, Individually and as Heirs at Law of Linda Kay Moore, Deceased, on Behalf of Themselves and All Other Heirs at Law of the Deceased, or All Who Are Entitled to Legal Redress for the Death of Linda Kay Moore, Deceased v. Tyrone LEE, M.D.; Conway Regional Medical Center; Craig Cummins, M.D.; and James Throneberry, M.D. CA 00-696 Court of Appeals of Arkansas Division IV
• Court: Arkansas Court of Appeals

Ron and Ramona DAVENPORT, as the Administrators of the Estate of Linda Kay Moore, Deceased, or, in the Alternative, Ron and Ramona Davenport, Individually and as Heirs at Law of Linda Kay Moore, Deceased, on Behalf of Themselves and All Other Heirs at Law of the Deceased, or All Who Are Entitled to Legal Redress for the Death of Linda Kay Moore, Deceased v Tyrone LEE, M.D.; Conway Regional Medical Center; Craig Cummins, M.D.; and James Throneberry, M.D.

CA 00-696

Court of Appeals of Arkansas Division IV

April 4, 2001

Appeal from Faulkner Circuit Court; David Reynolds, Judge; reversed and remanded.

1. Executors & administrators -- persons who are not licensed attorneys cannot practice law in matters relating to trusteeship -- appellants were not authorized to proceed pro se on behalf of estate. -- A person who is not a licensed attorney and who is acting as an administrator, executor, or guardian cannot practice law in matters relating to his trusteeship on the theory that he is practicing for himself; hence, appellants were not authorized to proceed pro se on behalf of the estate in question.

2. Executors & administrators -- wrongful-death action -- appellant could not proceed individually where personal representative appointed. -- The Arkansas wrongful-death statute requires that "every action shall be brought by and in the name of the personal representative of the deceased person" and that "[i]f there is no personal representative, then the action shall be brought by the heirs at law of the deceased person" [Ark. Code Ann. § 16-62-102(c) (1993); although appellant was a statutory beneficiary pursuant to Ark. Code Ann. § 16-62-102(d), she could not proceed individually where a personal representative had been appointed.

3. Pleading -- filing by person not entitled to practice law in state -- not nullity. -- The appellate court held that a pleading filed by a person not entitled to practice law in the state is a not a nullity.

4. Pleading -- filing by person not entitled to practice law in state -- initial complaint not nullity for purposes of tolling statute of limitations but instead amendable defect. -- Where appellees could demonstrate no prejudice regarding the filing of appellants' pro se negligence and wrongful-death action as the complaint was both timely filed and served along with the amendment apprising appellees of the identity of appellants' counsel; where the decedent was survived by several children whose rights in the action were at stake; and where dismissal of the action was unduly harsh, the appellate court held that the initial complaint was not a nullity for purposes of the tolling of the statute of limitations, but was instead an amendable defect; reversed and remanded.

Charles Phillip Boyd, Jr., and Christopher D. Anderson, for appellants.

Wright, Lindsey & Jennings, LLP, by: Patricia Sievers Harris, Elisa Masterson White, and Jane M. Weisenfels, for appellees Tyrone Lee, M.D., and Conway Regional Medical Center.

Armstrong Allen, PLLC, by: Ken Cook and E.B. Chiles, IV, for appellee Craig Cummins, M.D.

Anderson, Murphy & Hopkins, LLP, by: Overton S. Anderson and Scott D. Provencher, for appellee James Throneberry, M.D.

Andree Layton Roaf, Judge.

Ron and Ramona Davenport were appointed administrators of the estate of Linda Kay Moore, Ramona Davenport's sister. Subsequently, the Davenports filed a pro se negligence/wrongful death action against the appellee medical providers five days before the expiration of the two-year statute of limitations. The complaint alleged that the appellees' negligent medical treatment was the cause of Ms. Moore's death. The circuit court granted the appellees' motions to dismiss, based on a finding that personal representatives who are not licensed attorneys are not acting individually, and may not file a wrongful death or survivorship action on behalf of either the estate or the wrongful death statutory beneficiaries. The trial court found that the Davenports' complaint was consequently a nullity, and that an entry of appearance and amended complaint later filed by their attorney did not relate back to the initial filing so as to toll the running of the statute of limitations. On appeal, the Davenports raise seven points for reversal. With regard to the sixth point raised by the Davenports, we agree that the trial court erred in finding that the complaint filed by them was a nullity, and reverse and remand.

Ron Davenport and Ramona Davenport are the administrators of the estate of the decedent, Linda Kay Moore. Ramona Davenport is Ms. Moore's sister, and Ramona and Ron are husband and wife. Ms. Moore was also survived by three children. Appellees are Drs. Tyrone Lee, Craig Cummins, Greg Lewis, Gil Johnson, and James Throneberry, Conway Regional Medical Center (hereinafter "CRMC"), and/or John Doe A-Z, and they are the medical personnel and the hospital that treated Ms. Moore.

On February 11, 1997, Ms. Moore went to the CRMC emergency room suffering from pneumonia. On February 15, 1997, prior to a scheduled surgery for her condition, she was intubated, and she died only minutes later. The Faulkner County Probate Court appointed the Davenports as the administrators of Ms. Moore's estate. The Davenports filed a complaint pro se as administrators of the estate or alternatively, individually, and as the heirs at law of the decedent, and on behalf of other heirs at law or all who are entitled to legal redress for the decedent's death, in the Faulkner County Circuit Court on February 10, 1999. The Boyd Law Firm filed an entry of appearance and an addendum to the complaint modifying a defendant's name on May 29, 1999. The Boyd Law Firm then had the summons, complaint, and the addendum to the complaint timely served on all appellees.

Over the course of this case, five amended complaints were filed, and the appellees all filed motions to dismiss. An order was entered by the circuit court on November 24, 1999, dismissing all claims with prejudice, stating in pertinent part that, as personal representatives of the estate, Ramona and Ron Davenport could not file a valid complaint for wrongful death or survivorship if neither of them is an attorney, that they were not acting individually, and that the subsequent amended pleadings filed by their attorneys do not relate back to the initial filing under the circumstances of this case. The Davenports filed a motion for reconsideration on November 26, 1999. The trial court entered two orders on January 25, 2000, denying that motion and striking the Davenport's fifth amended complaint filed after the trial court had announced its decision to dismiss the action.

The Davenports raise seven points for reversal, some of which are interrelated. They contend that the trial court erred in: 1) failing to deny the motions to dismiss filed by Craig Cummins, M.D., Tyrone Lee, M.D., and Conway Regional Medical Center because they failed to raise their motions to dismiss in their initial pleadings as required by Ark. R. Civ. P. 12(b); 2) determining that this action was commenced without an attorney acting on behalf of the estate of Linda Kay Moore; 3) alternatively, failing to find that the administrators of the estate were vested with the rights of the decedent and were not "trustees" for the estate; 4) dismissing with prejudice the individual complaint of Ramona Davenport, an administrator of the estate who is also an heir, where she alleged both her individual and representative capacity; 5) alternatively, if the original complaint was ineffectual due to technical defect, failing to apply Ark. R. Civ. P. 17 to allow cure of any defect to permit the real party in interest to appear and/or ratify the filing of the complaint; 6) determining that the complaint filed by Ron and Ramona Davenport was a nullity; and 7) failing to find that the appellees' fraudulent concealment tolled the two-year limitations period.

We have concluded that the trial court erred in holding that the Davenports' pro se complaint was a nullity. Consequently, we need not address the other six arguments raised by the Davenports except as they relate to the discussion of this point or overlap with this issue. This is an issue of first impression in Arkansas. The supreme court in Arkansas Bar...