"A" ex rel. F.P.J. v. Davis

86 So. 3d 394, 2011 WL 6275143, 2011 Ala. Civ. App. LEXIS 385
CourtCourt of Civil Appeals of Alabama
DecidedDecember 16, 2011
Docket2100832
StatusPublished

This text of 86 So. 3d 394 ("A" ex rel. F.P.J. v. Davis) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
"A" ex rel. F.P.J. v. Davis, 86 So. 3d 394, 2011 WL 6275143, 2011 Ala. Civ. App. LEXIS 385 (Ala. Ct. App. 2011).

Opinion

MOORE, Judge.

Minor Child “A,” by and through her mother F.P.J., appeals from a summary judgment entered by the Mobile Circuit Court (“the trial court”). We dismiss the appeal.

On October 22, 2010, F.P.J., appearing pro se, filed a complaint in the trial court, naming “Minor Child ‘A’ ” as the plaintiff and “USA Womens’ and Children Hospital” (“the hospital”) as the defendant. The complaint alleged that Minor Child “A” (“the child”) had suffered damages as a [395]*395result of the negligence of the nurses who had treated the child during a stay at the hospital. Specifically, the complaint alleged that the child was seeking $1,000,000 in damages “for negligent medical malpractice, endangering an infant, causing [the child] trauma, emotional hurt, disfigurement, defamation of character, slander, pain and suffering, breach of confidential medical documentation, harassment, abuse, embarrassment, and mistaken gender and all other injuries so may be discovered.”

The hospital filed a motion to dismiss on November 5, 2010, based on the doctrine of sovereign immunity. On November 19, 2010, F.P.J. filed a motion requesting that her claims not be dismissed and asserting that the child possessed individual claims against the nurses. On December 16, 2010, F.P.J. filed a motion seeking to file an amended complaint; the trial court granted that motion on January 28, 2011. On February 2, 2011, F.P.J. filed an amended complaint, naming as defendants “Dr. Smith,” “RN Amy Davis,” and “RN Hale.” On February 11, 2011, the trial court entered an order granting the hospital’s motion to dismiss; in another order entered that same date, the trial court indicated that, although proper service had been made upon Amy Davis, proper service had not been perfected as to the other individual defendants named in F.PJ.’s amended complaint.

On March 4, 2011, Shelia Hale and Amy Davis filed separate motions to extend their time to answer the complaint; the trial court granted both motions on that same date. On March 28, 2011, Davis filed a motion to dismiss or, in the alternative, a motion for a summary judgment. On March 29, 2011, Hale filed a motion to dismiss or, in the alternative, a motion for a summary judgment. On April 30, 2011, the trial court entered a summary judgment in favor of Davis and Hale. F.P.J. filed a document entitled a “reply” in the trial court on June 2, 2011; that document was treated by the trial court as a notice of appeal to this court. This court transferred the appeal to the Alabama Supreme Court for lack of jurisdiction; that court subsequently transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

On appeal, F.P.J., acting pro se as the representative of the child, argues that the trial court erred by entering a summary judgment in favor of Davis and Hale.

In Chambers v. Tibbs, 980 So.2d 1010 (Ala.Civ.App.2007), Hermie Chambers (“the father”) and his wife, Delores Chambers (“the mother”), appealed from an adverse decision of the Barbour Circuit Court in an action brought by them pro se, in which they asserted claims on their own behalf and on behalf of their child. This court dismissed the portion of the appeal brought on behalf of their child and stated, in pertinent part:

“The father and the mother cite Rule 17(c), Ala. R. Civ. P., to support the proposition that they should be allowed to represent their child’s interests in this action despite the fact that they are not licenced attorneys; however, that argument is unpersuasive. Rule 17(c) provides in part that ‘[wjhenever a minor has a representative, such as a general guardian or like fiduciary, the representative may sue in the name of the minor.’ This phrase is similar to a phrase in Rule 17(c), of the Federal Rules of Civil Procedure. When interpreting Rule 17(c), Fed.R.Civ.P., the United States Court of Appeals for the Eleventh Circuit stated that Rule 17(c) ‘permits authorized representatives, including parents, to sue on behalf of minors, but does not confer any right upon such representatives to serve as legal counsel.’ Devine v. Indian River County [396]*396Sch. Bd., 121 F.3d 576, 581 (11th Cir.1997) (citing Osei-Afriyie v. Medical Coll. of Pennsylvania, 937 F.2d 876, 882-83 (3d Cir.1991); Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir.1990); and Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir.1986)); see also Tindall v. Poultney High Sch. Dist., 414 F.3d 281, 284 (2d Cir.2005) (‘[i]t is thus a well-established general rule in this Circuit that a parent not admitted to the bar cannot bring an action pro se in federal court on behalf of his or her child’). We similarly conclude that Rule 17(c), Ala. R. Civ. P., does not confer upon a representative of a minor a right to practice law on behalf of that minor.
“Further, although there does not appear to be an Alabama case directly on point, in Ex parte Ghafary, 738 So.2d 778 (Ala.1998)[,] our Supreme Court addressed the issue whether the nonattor-ney executrix of an estate could represent the estate in an action. In that case our Supreme Court examined both Article I, § 10, of the Constitution of Alabama of 1901, which establishes the right of a person to represent himself before any tribunal in the state, and § 34-3-6, Ala.Code 1975, which restricts those persons who have authority to practice law to those persons who ‘are regularly licensed.’ The Supreme Court concluded in Ex parte Ghafary that the right of a person to represent himself under Article I, § 10, did not ‘extend to the representation of interests other than those of the pro se litigant.’ Id. at 779. Additionally, the Supreme Court determined that § 34-3-6 (a) ‘prohibits a nonattorney executor or personal representative from representing an estate before a court of law.’ Id. at 781. That conclusion was reiterated in Godwin v. State ex rel. McKnight, 784 So.2d 1014 (Ala.2000), in which our Supreme Court noted, ‘[a]lthough the law allows Mr. Godwin to file complaints pro se, it does not allow him to file a complaint on behalf of anyone else, even an estate of which he is the executor.’ Id. at 1015.
“Other states have specifically held that a nonattorney parent may not represent his or her child in an action. E.g., Byers-Watts v. Parker, 199 Ariz. 466, 469, 18 P.3d 1265, 1268 (Ariz.Ct.App.2001) (concluding that a nonattor-ney mother acting as the guardian ad litem for her child may not act as an attorney to represent her child); Chisholm v. Rueckhaus, 124 N.M. 255, 256, 948 P.2d 707, 708 (N.M.Ct.App.1997) (similarly concluding that a nonattorney parent may not act as an attorney to represent his or her child). In a case in which the parents of a child, acting on behalf of their child, attempted to appeal a trial court’s judgment without the aid of counsel, the Appellate Court of Connecticut stated:
“ ‘The plaintiffs parents brought this action solely in a representative capacity as next friends. As we have noted, they did not raise any claims of their own.

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Related

Harris v. Apfel
209 F.3d 413 (Fifth Circuit, 2000)
Morgan v. Potter
157 U.S. 195 (Supreme Court, 1895)
Chisholm v. Rueckhaus
1997 NMCA 112 (New Mexico Court of Appeals, 1997)
Stage Door Development, Inc. v. Broadcast Music, Inc.
698 So. 2d 787 (Court of Civil Appeals of Alabama, 1997)
Chambers v. Tibbs
980 So. 2d 1010 (Court of Civil Appeals of Alabama, 2007)
Godwin v. State Ex Rel. McKnight
784 So. 2d 1014 (Supreme Court of Alabama, 2000)
Ex Parte Ghafary
738 So. 2d 778 (Supreme Court of Alabama, 1999)
Byers-Watts v. Parker
18 P.3d 1265 (Court of Appeals of Arizona, 2001)
Williams v. Cleaveland
56 A. 850 (Supreme Court of Connecticut, 1904)
Lowe v. City of Shelton
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Meeker v. Kercher
782 F.2d 153 (Tenth Circuit, 1986)

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Bluebook (online)
86 So. 3d 394, 2011 WL 6275143, 2011 Ala. Civ. App. LEXIS 385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/a-ex-rel-fpj-v-davis-alacivapp-2011.