Tatro v. Langston
| Decision Date | 19 May 1997 |
| Docket Number | No. 97-54,97-54 |
| Citation | 944 S.W.2d 118,328 Ark. 548 |
| Parties | Bobbie TATRO, As Personal Representative of the Estate of Arlen D. Tatro, Deceased, Petitioner, v. Honorable Don LANGSTON, Circuit Judge, Respondent. |
| Court | Arkansas Supreme Court |
E. Diane Graham, Rebecca D. Hattabaugh, Fort Smith, for Appellant.
Stephen H. Meeh, Fort Smith, for Appellee.
On April 3, 1991, Arlen D. Tatro was driving his vehicle when it collided with John Bankord's. Tatro died the same day as a result of the accident and Bankord sustained injuries due to the collision. Arlen's widow, Bobbie, opened Arlen's estate on May 10, 1991, and was appointed administratrix. The estate's notice was published on May 17, 1991. All claims against the estate were paid, and on January 22, 1992, the probate court ordered Arlen's estate closed, discharged Bobbie, and released her surety.
Bankord had filed no claim in Tatro's estate. Instead, on April 4, 1994, and ostensibly within the three-year statute of limitations for negligence claims, Bankord and his wife filed suit in circuit court against Bobbie Tatro, naming her the personal representative of Arlen's estate. Bobbie answered, denying she was any longer the personal representative of Arlen's estate and specifically denying all other allegations in Bankord's complaint. The Bankords dismissed their complaint without prejudice on April 11, 1995, but they reinstituted their suit on April 9, 1996, to which Bobbie again denied being the personal representative of Arlen's estate.
Bobbie subsequently filed a motion for summary judgment, alleging that the three-year statute of limitations had expired before the Bankords filed suit, and that under Ark.Code Ann. § 28-53-119 (1987) the Bankords were obliged, but failed, to reopen Tatro's estate in order to pursue their claims. 1 The Bankords, on the other hand, relied upon Ark.Code Ann. § 28-50-101(a) and (f) (Supp.1995), and argued that Tatro's estate continued in legal existence and remained subject to suit in tort even in the absence of initiating the procedure for reopening the estate. Those statutory provisions in § 28-50-101 provide as follows:
(a) STATUTE OF NONCLAIM. Except as provided in §§ 28-50-102 and 28-50-110, all claims against a decedent's estate ... shall be forever barred as against the estate, the personal representative, or the heirs and devisees of the decedent, unless verified to the personal representative or filed with the court within three (3) months after the date of the first publication of notice to creditors. However, claims for injury or death caused by the negligence of the decedent shall be filed within six (6) months from the date of first publication of the notice, or they shall be forever barred and precluded from any benefit in the estate.
* * * * * *
(f) CERTAIN TORT CLAIMS NOT AFFECTED. Notwithstanding the foregoing provisions relating to the time for filing claims against an estate, or any other provisions of this code, a tort claim or tort action against the estate of a deceased tortfeasor, to the extent of any recovery which will be satisfied from liability insurance or from uninsured motorist insurance coverage and which will not use, consume, or deplete any assets of the decedent's estate, may be brought within the limitation period otherwise provided for the tort action. No recovery against the tortfeasor's estate shall use, consume, diminish, or deplete the assets of the decedent's estate, and any recovery shall not affect the distribution of the assets of the estate to the heirs, next of kin, legatees, or devisees of the deceased tortfeasor unless a claim is filed in the manner and within the time provided by this code for filing claims against the estate. (Emphasis added.)
Because Arlen Tatro had liability insurance coverage at the time of the April 3, 1991 accident and Bobbie would be merely a nominal party on behalf of her deceased husband's estate, the Bankords submitted below, and now on appeal that their suit is authorized under provision (f) above.
The circuit court agreed with the Bankords and denied Bobbie's summary judgment motion. Bobbie then filed her petition for writ of prohibition with us, asserting the circuit court's ruling was wrong and it was without jurisdiction to proceed. We disagree.
We are first met with the settled rule that prohibition will not lie unless the trial court is clearly without jurisdiction or has acted without authority and the petitioner is unquestionably entitled to such relief. Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (1993). The purpose of the writ is to prevent a court from exercising a power not authorized by law when there is no other adequate remedy by appeal or otherwise. Moreover, it is never issued to prohibit an inferior court from erroneously exercising its jurisdiction, but only where the inferior tribunal is wholly without jurisdiction, or is proposing or threatening to act in excess of its jurisdiction. Id.
In Vermeer Mfg. Co. v. Steel, Judge, 263 Ark. 323, 564 S.W.2d 518 (1978), this court held that, while it was denying the petitioner's request for writ of prohibition, it was still proper for petitioner to seek prohibition because the three-year statute of limitations for wrongful death was jurisdictional. However, this court in a product liability case, Forrest City Machine Works, Inc. v. Erwin, 304 Ark. 321, 802 S.W.2d 140 (1991), limited the Vermeer decision by stating the following:
Here, petitioner has failed to establish that the trial court was without jurisdiction. Statutes of limitation constitute an affirmative defense, see ARCP Rule 8(c), but they are generally not jurisdictional. Those that are jurisdictional are tied to the right itself, and not just the remedy. See, e.g., Vermeer Mfg. Co. v. Steel, 263 Ark. 323, 564 S.W.2d 518 (1978) (). Petitioner has not presented us with a case holding that the applicable statute of limitations for product liability cases is jurisdictional. Prohibition is not available as a remedy if the statute of limitation...
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