Estate of Byrd v. Tiner

Decision Date09 April 2003
Docket NumberNo. CA 02-439.,CA 02-439.
Citation101 S.W.3d 887
PartiesThe ESTATE OF Daisy BYRD v. Lohnes Tommy TINER.
CourtArkansas Court of Appeals

David A. Hodges, Little Rock, for appellant.

Tiner & Spruell, by: Raymond L. Spruell, Jr., Harrisburg, for appellee.

SAM BIRD, Judge.

The Estate of Daisy Byrd appeals the dismissal of its wrongful-death claim against Tommy Tiner. Appellant raises two points of appeal: (1) that Tiner waived his defense that the suit was not brought in the name of the real-party-in-interest, and (2) that the trial court erred in prohibiting the Estate from amending its complaint by substituting the name of the personal representative in the place of the Estate of Daisy Byrd. We find the second point dispositive and hold that the trial court did not err in prohibiting the amendment of the complaint. We affirm the dismissal of the case.

Daisy Byrd died after she was in an automobile accident on January 5, 1998. Her will was admitted to probate on March 20, 1998, and Nina Coffee was appointed as personal representative of her estate. On June 2, 1998, a wrongful-death action was filed in the name of "Estate of Daisy Byrd, Deceased," against Tommy Tiner, alleging that Byrd's death resulted from her car being struck when Tiner's negligence caused his car to cross the center line. The complaint contained no language to indicate that it was being brought by or in the name of the personal representative of Byrd's estate; it bore only the signature of counsel on behalf of "Estate of Daisy Byrd, Deceased, Plaintiff." On June 17, 1998, Tiner filed his answer, asserting among other things the defense that the plaintiff had failed to state facts upon which relief could be granted and had failed to join necessary parties in the action. On September 12, 2000, an order was entered setting the case for jury trial on February 12, 2001.

On February 9, 2001, Tiner filed a motion to dismiss, alleging that the Estate of Daisy Byrd was not the proper party to bring the wrongful-death action under Ark.Code Ann. § 16-62-102 (Supp.2001); that the purported plaintiff was neither a personal representative nor an heir-at-law, and was a non-entity; and that suit by a new or substituted party was barred by limitations. At a hearing on the motion to dismiss, Tiner argued that the Estate was not the proper party to bring the wrongful-death suit and that substitution of parties was barred by limitations that had run on January 4, 2001. Arguing that Tiner had waived these contentions in his answer to the suit and that his motion to dismiss was not timely filed because he had been on notice of the trial since September 12, 2000, the Estate moved to amend, substitute, or add the name Nina Coffee, Executrix of the Estate. The court orally granted Tiner's motion to dismiss, agreeing that the suit was barred by limitations because the personal representative had not filed suit within the three-year period for filing wrongful-death actions. The Estate then filed both a motion to amend its complaint and a motion for reconsideration. The trial court denied these motions and entered an order of dismissal.

A wrongful-death action must he brought by and in the name of the personal representative of the deceased person; if there is no personal representative, the action shall be brought by the heirs at law of the deceased person. Ark.Code Ann. 16-62-102(b) (Supp.2001). Every action authorized by the statute must he commenced within three years after the death of the person alleged to have been wrongfully killed. Ark.Code Ann. § 16-62-102(c)(Supp.2001). Because the wrongfuldeath action is a creation of statute, it exists only in the manner and form prescribed by the statute; it is in derogation of the common law and must be strictly construed, and nothing may be taken as intended that is not clearly expressed. St. Paul Mercury Ins. Co. v. Circuit Court of Craighead County, 348 Ark. 197, 73 S.W.3d 584 (2002).

The Estate argues that the amended complaint should have been allowed under Ark. R. Civ. P. 15 and 17. Rule 15(a), with the exception of certain defenses, allows a party to amend its pleadings unless, upon motion of an opposing party, the court determines that prejudice would result or the disposition of the cause would be unduly delayed because of the filing of an amendment. Under Rule 15(c), amendment of a pleading in certain instances relates back to the date of the original pleading. Rule 17 prohibits dismissal of an action on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for joinder or substitution of the real party in interest. These rules, however, are not applicable in the case we now decide.

Where an action is brought in the name of a nonexistent plaintiff, any amendment of the complaint by substituting the proper party to the action as plaintiff institutes a new action as regards the statute of limitations. Ark-Homo Foods v. Claude C. Ward, Jr. 251 Ark. 662, 473 S.W.2d 910 (1971)...

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  • Brewer v. Poole
    • United States
    • Arkansas Supreme Court
    • 21 Abril 2005
    ... ... No estate was opened and no personal representative was named. In December 1997, Ms. Brewer's husband, ... See Davenport, supra; Estate of Daisy Byrd" v. Tiner, supra [81 Ark.App. 366, 101 S.W.3d 887] ...          Andrews, supra ...  \xC2" ... ...
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    • U.S. District Court — Western District of Arkansas
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    ... ... §§ 16-62-101, 102); see also Rhuland v. Fahr, 356 Ark. 382, 155 S.W.3d 2 (2004); Estate of Byrd v. Tiner, 81 Ark.App. 366, 101 S.W.3d 887 (Ark.App.2003). In these cases, the original ... ...
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