Pollard v. H.C. P'ship

• Decision Date: 13 March 2020
• Docket Number: 1180795
• Citation: 309 So.3d 1189
• Parties: Fannie M. POLLARD, as personal representative of the Estate of Ed Young, deceased v. H.C. PARTNERSHIP d/b/a Hill Crest Behavioral Health Services
• Court: Alabama Supreme Court

309 So.3d 1189

Fannie M. POLLARD, as personal representative of the Estate of Ed Young, deceased

v.H.C. PARTNERSHIP d/b/a Hill Crest Behavioral Health Services

1180795

Supreme Court of Alabama.

March 13, 2020

Rehearing Denied May 22, 2020

Barry W. Walker of Walker Law, Birmingham, for appellant.

Martha L. Thompson and Irving W. Jones, Jr., of Balch & Bingham, LLP, Birmingham, for appellee.

BOLIN, Justice.

The estate of Ed Young, deceased, by and through its personal representative, Fannie M. Pollard, appeals from a summary judgment entered in favor of H.C. Partnership d/b/a Hill Crest Behavioral Health Services ("Hill Crest") in a wrongful-death action alleging medical malpractice. We reverse the judgment of the trial court and remand the case.

Facts and Procedural History

On May 7, 2017, the estate of Ed Young sued Hill Crest alleging that Hill Crest caused Young's death on May 9, 2015, by improperly administering the antipsychotic drugs Haldol

and Thorazine to Young as a chemical restraint without taking a proper medical history and evaluating him. The style of the complaint indicated that it was filed by the "Estate of Ed Young and Fannie M. Pollard as personal representative of the Estate of Ed Young." On May 8, 2017, the probate court appointed Fannie M. Pollard as administrator of Young's estate. On May 9, 2017, the two-year limitations period under Alabama's wrongful-death act expired. See § 6-5-410(d), Ala. Code 1975.

On June 15, 2017, the estate filed an amended complaint, adding additional claims against Hill Crest. The amended complaint listed as plaintiffs the estate and Pollard as the personal representative of the estate. The parties then engaged in discovery.

On January 3, 2019, Hill Crest filed a summary-judgment motion arguing that Pollard was not the personal representative of Young's estate when the complaint was filed on May 7, 2017, and that, therefore, she lacked the capacity to bring suit. It further argued that the relation-back doctrine did not apply because the May 7, 2017, complaint was a nullity and there was no properly filed underlying action to which Pollard's subsequent appointment as personal representative could relate.

Pollard responded that she had been properly appointed before the limitations period expired. She argued that Hill Crest's argument was based solely on "relation back" under Rule 15(c), Ala. R. Civ. P., when, instead, Rule 17(a), Ala. R. Civ. P., regarding the "real party in interest," applied.

On March 14, 2019, the trial court held a hearing on the motion. On May 31, 2019, the trial court entered a summary judgment in favor of Hill Crest. The trial court's order provided, in part:

"On May 7, 2015, Ed Young was transported from the VA Hospital to Hill Crest Hospital, being admitted into the Adult Unit. Later, he was transferred to the Psychiatric Intensive Care Unit. On May 8, 2015, it was noted that the patient was unresponsive and taken to Trinity Medical Center. He died a natural death on May 9, 2015.

"Some two years later, on May 7, 2017, Fannie Mae Pollard, the mother-in-law of the decedent's brother, initiated this action bringing allegations under the Alabama Medical Liability Act against Hill Crest. On May 8, 2017, she applied for and was granted Letters of Administration by the Probate Court of Jefferson County. The Defendant Hill Crest filed its answer on June 15, 2017.

"At issue in this case is whether this cause of action is a nullity due to the fact that it was filed before Letters of Administration were issued to Ms. Pollard. On the one hand, the Defendant contends that summary judgment should be granted because this matter is a nullity; and, on the other hand, the Plaintiff contends, inter alia, that Pollard was the properly appointed administrator because Letters of Administration were issued before the expiration of the statute of limitations.

"....

"It is clear that Pollard became the personal representative of the Estate of Ed Young when Letters of Administration were issued by the Probate Court on May 8, 2017. It is equally clear that this action was commenced before Pollard garnered the aforementioned letters.

Alabama Code [1975,] § 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 in subsection (e), and not elsewhere, for the wrongful act, omission, or negligence of any person, or corporation, his or her or their servants or agents, whereby the death of the testator or intestate was caused, provided the testator or intestate could have commenced an action for the wrongful act, omission, or negligence if it had not caused death.’

"The Alabama Supreme Court in Waters v. Hipp, 600 So. 2d 981, 982 (Ala. 1992), explained that a wrongful death action is statutory and ‘[one] who sues under this section without having been appointed executor or administrator does not qualify under this section as its personal representative, and the suit is a nullity.’ Citing Downtown Nursing Homes, Inc. v. Pool, 375 So. 2d 465 (Ala. 1979), cert denied, 445 U.S. 930, 100 S.Ct. 1318, 63 L.Ed.2d 763 (1980).

"The Alabama Supreme Court has consistently held that only the appointed administrator or executor of a decedent's estate can maintain a wrongful death action and if there is no administrator or executor appointed at the time an action is filed, such action is a legal nullity. See Watson v. University of Alabama Health Services Foundation, 263 So. 3d 1030 (Ala. 2018), Ex parte Hubbard Properties, Inc., 205 So. 3d 1211 (Ala. 2016), Northstar Anesthesia v. Noble, 215 So. 3d 1044 (Ala. 2016), Ex parte Bio-Medical Applications of Alabama, Inc., 216 So. 3d 420 (Ala. 2016).

"Letters of Administration as well as Waivers of Heirs, and other forms such as the renunciation of the County Administrator and the Bond were drafted on the Plaintiff's behalf on May 2, 3, and 4; however, those documents were not filed until May 8, 2017, after the Complaint had been filed.

"The Plaintiff contends that the amendment filed on June 15, 2017, relates back to the original complaint filed on May 7, 2017. The Plaintiff further contends that because Ms. Pollard was issued Letters of Administration before the statute expired, ... the Defendant['s] Motion for Summary Judgment should be defeated. To support her claim, the Plaintiff heavily relies on Ellis v. Hilburn, 688 So. 2d 236 (Ala. 1997), which held that an amendment to a complaint attempting to name a proper personal representative ‘related back’ to the filing of the original complaint because the acts of the prior improperly appointed personal representative was not void, but merely voidable.

"However, the Court finds that any purported amendment to substitute the personal representative as the proper plaintiff must fail, because a person who is not properly appointed as personal representative cannot bring a wrongful death lawsuit. See Wood v. Wayman , 47 So. 3d 1212, 1218-19 (Ala. 2012) ; Downtown Nursing Home, Inc. v. Poole, 375 So. 2d 465, 466 (Ala. 1979) ; Brown v. Mounger, 541 So. 2d 463, 464 (Ala. 1989). Thus, the Complaint filed on May 7, 2017, was of no legal effect. Even though Ms. Pollard filed for Letters of Administration on May 8, 2017, there was no proper underlying action to which Ms. Pollard's appointment as the personal representative could relate back. As the original complaint filed is a legal nullity, there was no viable suit to which any subsequent activity, including amendments, could relate back. The better practice would have been for the Plaintiff to refile the Complaint before May 9, 2017, after she had been appointed the personal representative but before the statute of limitations expired.

"The two-year time period in which to file a wrongful death action found within Alabama Code [1975,] § 6-5-410 [,] is a statute of creation rather than a statute of limitations, meaning the two year limitation is an integral part of the substantive cause of action. Pollard took no affirmative measures to refile the Complaint prior to the statute of limitations expiring after she had been appointed the personal representative.

"Based on the foregoing, it is therefore ORDERED, ADJUDGED, and DECREED that there being no genuine issue of material fact, the Defendant[ ] [is] entitled to judgment as a matter of law. Therefore, the Defendant['s] Motion for Summary Judgment is hereby GRANTED. Any and all claims asserted by the Plaintiff against the Defendant[s] are hereby DISMISSED, with prejudice."

(Capitalization in original.) Pollard timely appealed.

Standard of Review

"This Court's review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So. 2d 72, 74 (Ala. 2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law."

Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038 (Ala. 2004).

Arguments

Pollard notes that she was duly appointed as a personal representative of Ed Young's estate before the statute of limitations expired. She argues that Rule 17(a), Ala. R. Civ. P., and caselaw support her argument that a personal representative appointed before the limitations period lapses has the power to ratify the original lawsuit, which Pollard did when she filed the amended complaint weeks later. She further argues that the trial court erred because it failed to make a distinction between the fact that she was appointed administrator before the limitations period expired, whereas all the cases relied on by the trial court involved an appointment of a personal representative after the limitations period had run and did not rely on Rule 17(a).

Hill Crest argues that Alabama's wrongful-death act requires that a personal representative commence a...