Northstar Anesthesia of Ala., LLC v. Noble

• Citation: 215 So.3d 1044
• Decision Date: 08 July 2016
• Docket Number: 1141158, 1141166, 1141168.
• Parties: NORTHSTAR ANESTHESIA OF ALABAMA, LLC, and Maria Bolyard, CRNA v. Paula B. NOBLE, as personal representative of the Estate of Thomas A. Noble, deceased. Parkway Medical Clinic, Inc., d/b/a Parkway Medical Center v. Paula B. Noble, as personal representative of the Estate of Thomas A. Noble, deceased. Jeffrey Markham, M.D. v. Paula B. Noble, as personal representative of the Estate of Thomas A. Noble, deceased.
• Court: Supreme Court of Alabama

215 So.3d 1044

NORTHSTAR ANESTHESIA OF ALABAMA, LLC, and Maria Bolyard, CRNA

v.Paula B. NOBLE, as personal representative of the Estate of Thomas A. Noble, deceased.

Parkway Medical Clinic, Inc., d/b/a Parkway Medical Center

v.Paula B. Noble, as personal representative of the Estate of Thomas A. Noble, deceased.

Jeffrey Markham, M.D.

v.Paula B. Noble, as personal representative of the Estate of Thomas A. Noble, deceased.

1141158, 1141166, 1141168.

Supreme Court of Alabama.

July 8, 2016.

Norman E. Waldrop, Jr., Tamela E. Esham, S. Gaillard Ladd, Jr., and Timothy A. Heisterhagen of Armbrecht Jackson LLP, Mobile; and Thomas A. Woodall of Sirote & Permutt, PC, Birmingham, for appellants Northstar Anesthesia of Alabama, LLC, and Maria Bolyard, CRNA.

Stanley A. Cash, Martha Leach Thompson, and Emily Slay Walters of Huie, Fernambucq & Stewart, Birmingham, for appellant National Healthcare of Decatur, Inc., d/b/a Parkway Medical Center, identified in the opinion as Parkway Medical Clinic, Inc., d/b/a Parkway Medical Center.

Jasper P. Juliano, Deborah Ann Wakefield, and Adrienne D. Scott of Parsons, Lee & Juliano, P.C., Birmingham, for appellant Jeffrey Markham, M.D.

Justin C. Owen, Dennis E. Goldasich, Jr., and Joshua M. Vick of Goldasich & Associates, LLC, Birmingham, for appellee Paula B. Noble, as personal representative of the estate of Thomas A. Noble, deceased.

PER CURIAM.

Northstar Anesthesia of Alabama, LLC ("Northstar"), and Maria Bolyard, CRNA; Parkway Medical Clinic, Inc., d/b/a Parkway Medical Center ("Parkway"); and Jeffrey Markham, M.D. ("Dr. Markham") (hereinafter collectively referred to as "the appellants"), filed three petitions for a permissive appeal, pursuant to Rule 5, Ala. R.App. P., from the Morgan Circuit Court's orders denying the appellants' motions for a summary judgment in a wrongful-death action brought by Paula B. Noble ("Paula"), as personal representative of the estate of Thomas A. Noble ("Thomas"), deceased, against the appellants.

I. Facts and Procedural History

The facts are undisputed. On November 18, 2011, Thomas died. On January 9, 2012, Paula filed a petition in the Morgan Probate Court ("the probate court") for letters of administration, seeking to be appointed the personal representative of Thomas's estate. On January 18, 2012, the probate court granted Paula's petition and appointed her personal representative of Thomas's estate. On the same day, the probate court also issued letters of administration to Paula.

On August 10, 2012, Paula filed a petition for a consent settlement of Thomas's estate, seeking to close the estate; Paula specifically requested that she be discharged as the personal representative. On August 16, 2012, the probate court granted Paula's petition and, among other things, ordered that "said Personal Representative be discharged and released."

On November 15, 2013, Paula, on behalf of Thomas's heirs at law, after being discharged and released as the personal representative of Thomas's estate, filed a wrongful-death action against the appellants under § 6–5–410, Ala.Code 1975. On November 18, 2013, the two-year limitations period for bringing a wrongful-death action set forth in § 6–5–410(d), Ala.Code 1975, expired: "(d) The [wrongful-death] action must be commenced within two years from and after the death of the testator or intestate."

On December 16, 2013, having become aware of the fact that she lacked the representative capacity to maintain the wrongful-death action because she had been discharged and released as the personal representative of Thomas's estate before she commenced the action, Paula filed a petition to "re-open" Thomas's estate "so that she [could] continue as Personal Representative" for purposes of pursuing the wrongful-death action she filed on November 15, 2013. On the same day, the probate court entered an order in which it "re-appointed" Paula as the personal representative of Thomas's estate and "re-issued" "the Original Letters of Administration" for the purpose of pursuing the wrongful-death litigation.

On December 30, 2013, Parkway filed an answer to Paula's complaint; Parkway did not allege in its answer that Paula lacked the representative capacity to bring the wrongful-death action. On January 17, 2014, Dr. Markham also filed an answer to Paula's complaint; Dr. Markham did not allege in his answer that Paula lacked the representative capacity to bring the wrongful-death action. On June 6, 2014, Northstar and Bolyard filed an answer to Paula's complaint asserting, among other defenses, that Paula lacked the representative capacity to bring the wrongful-death action.

On April 24, 2015, Northstar and Bolyard filed a motion for a summary judgment. Northstar and Bolyard argued that the wrongful-death action brought by Paula is a nullity because Paula was not the personal representative of Thomas's estate at the time she filed the complaint. Northstar and Bolyard further argued that Paula's action is barred because she was not reappointed as personal representative of Thomas's estate until December 16, 2013, which is beyond the two-year limitations period set forth in § 6–5–410(d). Parkway and Dr. Markham also filed motions for a summary judgment asserting the same grounds.

On May 29, 2015, Paula filed a response to the appellants' summary-judgment motions. Paula argued that the wrongful-death action is not a nullity and is not barred by the two-year limitations period in § 6–5–410(d) because, she argued, even though she was not the personal representative at the time she commenced the wrongful-death action, her reappointment as personal representative of Thomas's estate related back to the time of Thomas's death, to the date she filed her original petition for letters of administration, or to the date the probate court originally appointed her as personal representative of Thomas's estate. Paula also argued that Parkway and Dr. Markham "failed to plead any affirmative defense of lack of capacity and ... therefore waived their ability to avail themselves of that affirmative defense."

On June 19, 2015, the circuit court denied the appellants' summary-judgment motions. The circuit court concluded that Paula "was personal representative at the time this wrongful death action was filed because [Paula] was established as personal representative and was never thereafter removed or replaced."

On July 9, 2015, Paula filed an amended complaint setting forth the additional fact that the probate court had reappointed her as personal representative of Thomas's estate. The appellants subsequently filed answers to Paula's amended complaint.

On July 24, 2015, the circuit court granted the appellants permission to appeal the circuit court's denial of their summary-judgment motions pursuant to Rule 5, Ala. R.App. P. The appellants then filed petitions for permission to appeal with this Court, which this Court granted.

II. Standard of Review

" ‘Where, as here, the facts of a case are essentially undisputed, this Court must determine whether the trial court misapplied the law to the undisputed facts, applying a de novo standard of review. Carter v. City of Haleyville, 669 So.2d 812, 815 (Ala.1995). Here, in reviewing the denial of a summary judgment when the facts are undisputed, we review de novo the trial court's interpretation of statutory language and our previous caselaw on a controlling question of law.’ "

Wood v. Wayman, 47 So.3d 1212, 1215 (Ala.2010) (quoting Continental Nat'l Indem. Co. v. Fields, 926 So.2d 1033, 1035 (Ala.2005) ).

III. Discussion

This Court has stated the following with regard to permissive appeals:

"In the petition for a permissive appeal, the party seeking to appeal must include a certification by the trial court that the interlocutory order involves a controlling question of law, and the trial court must include in the certification a statement of the controlling question of law. Rule 5(a), Ala. R.App. P. In conducting our de novo review of the question presented on a permissive appeal, ‘this Court will not expand its review ... beyond the question of law stated by the trial court. Any such expansion would usurp the responsibility entrusted to the trial court by Rule 5(a).’ BE&K, Inc. v. Baker, 875 So.2d 1185, 1189 (Ala.2003)...."

Alabama Powersport Auction, LLC v. Wiese, 143 So.3d 713, 716 (Ala.2013). In the present case, the circuit court certified the following controlling question of law:

"Is a wrongful death complaint filed by a person who had been appointed as the personal representative of the estate of the deceased (‘the estate’) a nullity when (1) the person was appointed personal representative of the estate on January 18, 2012, within two years of the death of the deceased; (2) the estate was closed and the person was discharged and released of her fiduciary duties and fiduciary capacity with regard to probate administration matters by order of the Probate Court on August 16, 2012; (3) no other person was appointed personal representative and no other probate matters were pursued; (4) the person, who had previously been appointed to serve as personal representative of the estate, filed the complaint on November 15, 2013, within two years of the death of the deceased; and (5) the estate was re-opened and letters of administration were re-issued to the person on December 16, 2013, more than two years after the death of the deceased?"

Initially, we note that "a wrongful-death action in Alabama brought pursuant to § 6–5–410, Ala.Code 1975, a cause of action unknown at common law, is purely statutory and that this Court's role is to strictly enforce the wrongful-death statute as written, and intended, by the legislature." Alvarado v. Estate of Kidd, 205 So.3d 1188, 1192 (Ala.2016) (Bolin, J., concurring specially). Section 6–5–410 states, in pertinent part:

"(a) A personal representative may commence an action and recover such damages as the jury may assess in a court of competent jurisdiction within the State of Alabama where provided for

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