Posey v. St. Bernard's Healthcare, Inc., 05-383.

• Decision Date: 02 February 2006
• Docket Number: No. 05-383.,05-383.
• Citation: 226 S.W.3d 757
• Parties: Vickie POSEY and Stan Posey, Individually and as Parents and Personal Representatives of Carrie L. Posey, a Minor, Appellants; v. ST. BERNARD'S HEALTHCARE, INC.; Michael E. Bolt, M.D.; and Jonesboro Surgery Clinic, PLLC, Appellees.
• Court: Arkansas Supreme Court

226 S.W.3d 757

Vickie POSEY and Stan Posey, Individually and as Parents and Personal Representatives of Carrie L. Posey, a Minor, Appellants; v. ST. BERNARD'S HEALTHCARE, INC.; Michael E. Bolt, M.D.; and Jonesboro Surgery Clinic, PLLC, Appellees.

No. 05-383.

Supreme Court of Arkansas.

February 2, 2006.

Wood, Carlton & Ishee, by: Dixie White Ishee; The Cochran Firm, by: Steven Libby, Memphis, for appellants.

Womack, Landis, Phelps, McNeill & McDaniel, by: Lucinda McDaniel and Dustin H. Jones, Jonesboro, for appellees Michael E. Bolt, M.D. and Jonesboro Surgery Clinic, PLLC.

Barrett & Deacon, A Professional Association, by: Andrew H. Dallas, Denzil Price Marshall, Jr., and Paul D. Waddell, Jonesboro, for appellee Bernard's Healthcare, Inc.

DONALD L. CORBIN, Justice.

The instant appeal presents the issue of whether the filing of an amended complaint sufficiently creates a new cause of action where the original complaint was a nullity. On appeal, Appellants Vicky and Stan Posey argue that it was error for the trial court to grant summary judgment and dismiss their cause of action because: (1) their suit was commenced prior to the expiration of the statute of limitations; (2) the service of process complied with the requirements of the rules of civil procedure; (3) Appellees waived any defect in the service of process. The Poseys further argue that any dismissal in this case should have been without prejudice because the statute of limitations had not expired at the time they filed their amended complaint. This case was certified to us from the Arkansas Court of Appeals, as involving issues needing clarification or development of the law; hence, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(b)(5). For the reasons set forth below, we affirm the order of the trial court as to Dr. Bolt and the Jonesboro Surgery Clinic but reverse and remand as to St. Bernard's.

The Poseys filed a medical-malpractice action, Individually and as Parents and Personal Representatives of Carrie Posey, a minor, against Appellees St. Bernard's Healthcare, Inc., Dr. Michael Bolt, and Jonesboro Surgery Clinic, PLLC.¹ The events leading up to the instant suit are set out in their complaint. According to the Poseys, their daughter, Carrie, underwent an outpatient laparoscopic cholecystectomy on November 28, 2001. Dr. Bolt performed the procedure, in which complications occurred causing injury to Carrie's common hepatic bile duct. Carrie was then transferred to St. Bernard's for further treatment and care. On December 5-6, 2001, Dr. Bolt preformed some tests and subsequently attempted to surgically repair the damage to the bile duct. Carrie was then released from Dr. Bolt's care and discharged to her home on December 20, 2001.

On August 10, 2002, Carrie went to the Wynne Medical Clinic after suffering from jaundice for two weeks. She was then transferred back to Dr. Bolt's care, and he admitted her to St. Bernard's. Dr. Bolt again performed surgery and discovered that Carrie had narrowing of the biliary enteric anastomsis. Carrie's condition continued to worsen and, at the request of her parents, she was transferred to Arkansas Children's Hospital on August 17, 2002.

The instant complaint was filed in the Craighead County Circuit Court on November 21, 2003, and signed by Dixie Ishee, an attorney who was not licensed to practice law in Arkansas. Ms. Ishee also failed to apply for pro hac vice status prior to filing the complaint. This complaint and a corresponding summons were served on St. Bernard's and Dr. Bolt in December 2003. Prior to completion of that service, the Poseys filed an amended complaint on November 26, 2003. The facts and allegations of the amended complaint were identical to the original complaint. In fact, the only difference in the amended complaint was that it was signed by Steven Libby, an attorney licensed to practice law in Arkansas. No corresponding summons was issued with the amended complaint, and the Poseys did not serve the amended complaint on St. Bernard's or Dr. Bolt.

St. Bernard's filed an answer denying the allegations set forth in both the original and amended complaints. In its answer, St. Bernard's also asserted the affirmative defense that the statute of limitations had expired on the Poseys' cause of action. Dr. Bolt filed a similar answer, also raising the affirmative defenses set forth in Ark. R. Civ. P. 8(c).

St. Bernard's filed a motion for summary judgment on August 30, 2004. Therein, St. Bernard's averred that neither the Poseys' original complaint nor their amended complaint tolled the statute of limitations. According to St. Bernard's motion, the statute of limitations had expired, and the Poseys' cause of action was now barred; thus, summary judgment was warranted, as no genuine issue of material fact remained to be decided. Dr. Bolt filed a similar motion for summary judgment on August 31, 2004.

The trial court held a hearing on the motions on December 20, 2004. At the hearing, counsel for St. Bernard's admitted that the original complaint was timely filed, but argued that it was a nullity, having been filed by an attorney not licensed to practice law in this State. Counsel further argued that, even though the amended complaint was filed before the statute of limitations expired, the amended complaint did not toll the limitations period because a summons was never issued, and the Poseys failed to complete service of process within the applicable time period. Counsel for Dr. Bolt agreed with St. Bernard's position, and further argued that her client never received a copy of the amended complaint.

Counsel for the Poseys argued that there had been no argument raised regarding insufficiency of service of process and, thus, St. Bernard's and Dr. Bolt waived this issue. She further argued that any dismissal must be without prejudice, because the statute of limitations had not expired at the time the amended complaint was filed.

After considering the arguments of counsel, the trial court announced from the bench that he was going to grant the motions for summary judgment on the basis that service of the amended complaint was not perfected and, thus, the statute of limitations on the Poseys' action had expired. A written order was subsequently entered that same day dismissing the Poseys' cause of action with prejudice. From that order, comes the instant appeal.

We recently reiterated our standard of review for summary judgment in Templeton v. United Parcel Serv. Inc., 364 Ark. 90, 216 S.W.3d 563 (2005), stating:

Summary judgment should be granted only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Riverdale Development Co. v. Ruffin Building Systems Inc., 356 Ark. 90, 146 S.W.3d 852 (2004); Craighead Elec. Coop. Corp. v. Craighead County, 352 Ark. 76, 98 S.W.3d 414 (2003); Cole v. Laws, 349 Ark. 177, 76 S.W.3d 878 (2002). The burden of sustaining a motion for summary judgment is the responsibility of the moving party. Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). Once the moving party has established a prima facie entitlement to summary judgment, the non-moving party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidence presented by the moving party in support of its motion leaves a material fact unanswered. George v. Jefferson Hosp. Ass'n Inc., 337 Ark. 206, 987 S.W.2d 710 (1999). We view the evidence in the light most favorable to the non-moving party, resolving all doubts and inferences against the moving party. Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998).

Id. at 95, 216 S.W.3d at 563 (quoting Jordan v. Diamond Equip. & Supply Co., 362 Ark. 142, 147-48, 207 S.W.3d 525, 529 (2005)).

For their first point on appeal, the Poseys argue that they commenced their cause of action prior to the expiration of the statute of limitations. In support of this argument, they aver that the filing of their amended complaint on November 26, 2003, sufficiently commenced their action, as it constituted the filing of a new lawsuit within the time designated for the filing of a medical-malpractice action under Arkansas law. Both Dr. Bolt and St. Bernard's argue that the Poseys failed to properly commence an action prior to the time the statute of limitations expired and, thus, the suit was time barred.

In Arkansas, a medical-malpractice action must be brought within two years of "the date of the wrongful act complained of and no other time." Ark.Code Ann. § 16-114-203 (1987). The medical malpractice act applies to all causes of action for medical injury arising after April 2, 1979, including wrongful-death and survival actions arising from the death of a patient. See Brewer v. Poole, 362 Ark. 1, 207 S.W.3d 458 (2005). In Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1988), this court recognized the continuous-treatment doctrine, which tolls the two-year statute of limitations for medical-malpractice actions until the medical treatment is discontinued. Therefore, the applicable date for determining the statute of limitations in the instant case is the date that St. Bernard's and Dr. Bolt stopped their treatment of Carrie, which was August 17, 2002. Accordingly, the Poseys had until August 17, 2004, to commence their cause of action against St. Bernard's and Dr. Bolt.

It is undisputed that the Poseys filed their original complaint on November 21, 2003. It is likewise undisputed that the Poseys properly completed service of process of this complaint within the 120-day-time period set forth in Ark. R. Civ. P. 4(i). This complaint, however, was signed by Dixie Ishee, an attorney not licensed to practice law in Arkansas. The fact that this complaint was filed by an attorney not licensed to practice law in this State renders it a nullity. See Preston v....