Repko v. Our Lady of Lourdes Med. Ctr., Inc.

• Decision Date: 13 August 2020
• Docket Number: DOCKET NO. A-2181-19T1
• Citation: 237 A.3d 956,464 N.J.Super. 570
• Parties: Carolyn REPKO, Plaintiff-Respondent, v. OUR LADY OF LOURDES MEDICAL CENTER, INC., Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

464 N.J.Super. 570

237 A.3d 956

Carolyn REPKO, Plaintiff-Respondent,

v.OUR LADY OF LOURDES MEDICAL CENTER, INC., Defendant-Appellant.

DOCKET NO. A-2181-19T1

Superior Court of New Jersey, Appellate Division.

Argued telephonically April 21, 2020

Decided August 13, 2020

Michael William Horner argued the cause for appellant (White and Williams LLP, attorneys; James Daniel Burger and Michael William Horner, on the brief).

Stephen Wayne Guice argued the cause for respondent.

Before Judges Fisher, Accurso and Gilson.

The opinion of the court was delivered by

ACCURSO, J.A.D.

We granted defendant Our Lady of Lourdes Medical Center, Inc. leave to appeal orders denying its motion to dismiss the complaint filed in the name of plaintiff Carolyn Repko ten months after her death and granting the motion of her estate to amend the complaint to substitute itself as plaintiff after the running of the statute of limitations. Because a complaint by a dead person is a nullity, leaving nothing for an amended complaint to "relate back" to under Rule 4:9-3, we reverse.

Because the timeline is everything in this case, we start there. In the course of picking up her son-in-law after surgery in September 2016, the decedent, Carolyn Repko, fell on the front steps at Lourdes, fracturing her nose and receiving a cut over her eye, as well as several other injuries. Three days later, she retained counsel to file suit on her behalf.

Repko died from unrelated causes in December 2017, fifteen months after her fall. Repko's counsel filed suit in her name in September 2018, shortly before the running of the statute of limitations, not knowing she had died nine months earlier. After Repko's counsel granted Lourdes an extension, it filed an answer in November 2018 and promptly served discovery. When Repko did not respond to her counsel's letters, counsel searched public records in February 2019, and discovered Repko had died over a year before.

Counsel wrote to Repko's son in March and April 2019, eventually securing his agreement to continue the case. In September 2019, three years after the accident and twenty-one months after Repko's death, her son sent counsel a death certificate and Letters Testamentary. Repko's will had been admitted to probate in March 2018 and Letters Testamentary issued to her son at that time.

Counsel advised Lourdes of Repko's death in September 2019 and sought consent to amend the complaint. Lourdes refused, maintaining the complaint was a nullity because Repko was already many months dead when it was filed.

Repko's counsel, now representing her estate, moved to amend the complaint in October 2019. Lourdes cross-moved to dismiss the action. The judge acknowledged that a dead person has no legal standing to bring a lawsuit, but ruled the decedent's estate was entitled to "an equitable tolling of the statute until the plaintiff's counsel finds out about the death and moves to amend the complaint." The judge noted that if Repko had died "an hour after filing," Rule 4:9-3 would permit the amendment to relate back, yet "if death occurs an hour before filing," not allowing the amended pleading to relate back would mean "that's the end of the case." Ruling the result should not "depend[ ] upon those types of fortuities," the judge granted the estate's motion to amend the complaint and denied Lourdes' motion to dismiss the action.

Because the question presented, whether decedent's estate could avoid the running of the statute of limitations by having its amended complaint relate back to the complaint filed in the decedent's name nine months after her death, is solely a question of law, our review is de novo. See Mejia v. Quest Diagnostics, Inc., 241 N.J. 360, 370-71, 228 A.3d 456 (2020).

In our view, this issue is simply one of standing, succinctly defined by the Connecticut Supreme Court as "the legal right to set judicial machinery in motion." Eder Bros. v. Wine Merchs. of Connecticut, Inc., 275 Conn. 363, 880 A.2d 138, 143 (2005) (quoting Gay & Lesbian Law Students Ass'n v. Bd. of Trs., 236 Conn. 453, 673 A.2d 484, 491 (1996) ); N.J. Citizen Action v. Riviera Motel Corp., 296 N.J. Super. 402, 409, 686 A.2d 1265 (App. Div. 1997) ("Standing refers to the plaintiff's ability or entitlement to maintain an action before the court."). Plaintiff necessarily concedes that a dead person cannot sue in our courts and cannot continue a suit filed prior to death. See N.J.S.A. 2A:15-3 ; R. 4:34-1(b); Smith v. Cynfax Corp., 261 N.J. Super. 378, 383, 618 A.2d 937 (Law Div. 1992). As Vice Chancellor Bigelow noted seventy-five years ago, "[a]n earthly court has no jurisdiction over the dead. Only the living can litigate here."

In re Admiral Sampson Bldg. & Loan Ass'n, 136 N.J. Eq. 292, 293, 41 A.2d 378 (Ch. 1945).

While plaintiff contends that Rule 4:9-3, the relation-back rule, applies to plaintiffs, as well as defendants, a point we agree with, see Siligato v. State, 268 N.J. Super. 21, 28-29, 632 A.2d 837 (App. Div. 1993), that begs the real question here: whether the estate's claim can relate back to a complaint wholly ineffective "to set judicial machinery in motion." When the plaintiff who attempted to set that judicial machinery in motion had been dead nearly a year, we do not think it can.

Although this precise question appears to be one of first impression in New Jersey, precedent supplies ample guidance for our decision. As our Supreme Court has explained, standing is "a threshold justiciability requirement." Watkins v. Resorts Int'l Hotel & Casino, 124 N.J. 398, 424, 591 A.2d 592 (1991). "It neither depends on nor determines the merits of a plaintiff's claim." Id. at 417, 591 A.2d 592. Unlike subject-matter jurisdiction, which focuses on a court's legal authority to decide a controversy, Gilbert v. Gladden, 87 N.J. 275, 280-81, 432 A.2d 1351 (1981), standing's focus is on the plaintiff's ability to invoke that authority, In re Adoption of Baby T, 160 N.J. 332, 340, 734 A.2d 304 (1999). "A lack of standing by a plaintiff precludes a court from entertaining any of the substantive issues presented for determination." Ibid.

Because plaintiff's death prevented her from suing in her own behalf, the complaint filed in her name by her counsel was a nullity.¹ As we have explained elsewhere, the existence of a juridical entity capable of suit is not merely a matter of form.² "In any suit, ... the plaintiff must subject itself to orders enforceable against itself, as well as availing itself of favorable orders. Without the presence of a plaintiff capable of both suing and being sued, relief cannot be afforded." Options v. Lawson, 287 N.J. Super. 209, 221, 670 A.2d 1081 (App. Div. 1996).

Given the complaint Repko's counsel filed nine months after her death was ineffective "to set [the] judicial machinery in motion," Eder Bros., 880 A.2d at 143, there was nothing for the estate's complaint to "relate back" to. The "relation-back" rule cannot cure the failure to file a valid complaint in the first instance. See Williams v. Bradshaw, 459 F.3d 846, 848-49 (8th Cir. 2006) (applying state law to determine the plaintiff was not the proper party to bring wrongful a death action and therefore the district court did not err in denying the motion for leave to amend the complaint because the "complaint amount[ed] to a nullity [and accordingly] it cannot serve as the foundation for an amendment: Since the original complaint was without legal effect, there was nothing to amend."); Jones ex rel. Jones v. Corr. Med. Servs., Inc., 401 F.3d 950, 952 (8th Cir. 2005) (where complaint was filed by someone unauthorized to practice law, court affirmed district court finding that the complaint was a nullity and therefore could not be amended); see also Davenport v. Lee, 348 Ark. 148, 72 S.W.3d 85, 94 (2002) ("[B]ecause the original complaint, as a nullity never existed, ... an amended complaint cannot relate back to something that never existed, nor can a nonexistent complaint be corrected.").

In addition to following on the law of standing, that result is consistent with the legislative scheme designed to preserve the cause of action for the decedent's estate under the Survivor's Act. Repko's right to recover personally for the injuries she suffered in her fall at Lourdes ended at her death. See Alfone v. Sarno, 87 N.J. 99, 108, 432 A.2d 857 (1981). Unlike at common law, however, when "[t]he death of the plaintiff gave his representative no remedy against the tortfeasor," Smith v. Whitaker, 160 N.J. 221, 233, 734 A.2d 243 (1999), Repko's unfiled claim against Lourdes was not lost. Our Survivor's Act, N.J.S.A. 2A:15-3, permitted her executor, suing on behalf of her estate, to recover the damages his "testator ... would have had if [s]he was living."

As we have recently explained, "a claim brought under the Survivor Act need not be based on tortious conduct that results in death." Warren v. Muenzen, 448 N.J. Super. 52, 63, 150 A.3d 940 (App. Div. 2016). "[T]he Survivor's Act preserves to the decedent's estate any personal cause of action that decedent would have had if he or she had survived." Smith, 160 N.J. at 233, 734 A.2d 243.

Accordingly, Repko's estate still had a viable claim against Lourdes at Repko's death. Although not a factor here because the two-year statute of limitations under N.J.S.A. 2A:14-2(a), did not expire until nine months after Repko died, N.J.S.A. 2A:14-23.1, adopted by the Legislature in 1977, operates to toll any statute of limitations on a claim belonging to a decedent for up to six months following death for the "salutary purpose of providing executors and administrators with a limited period of time after death to evaluate potential claims available to the estate." Warren, 448 N.J. Super. at 67-68, 150 A.3d 940.

The remedy adopted by the Legislature to preserve a decedent's claim against a tortfeasor in the Survivor's Act addresses the fortuity the trial judge recognized of grounding a person's "right to recover for an injury to his person...