Hackelton v. Malloy

221 S.W.3d 353, 364 Ark. 469

• Court: Supreme Court of Arkansas
• Decided: January 5, 2006
• Docket: 04-358
• Status: Published

Opinions

Robert L. Brown, Justice.

Appellant Angelia Hackelton appeals from the order granting summary judgment to appellees Mark J. Malloy, M.D. and Mark J. Malloy, M.D., P.A., (hereinafter “Dr. Malloy”) and the order dismissing appellee Dr. Dennis Yelvington from the litigation. She raises two points on appeal: (1) there was no basis in law for the dismissal of Dr. Malloy from the action; and (2) the trial court erred by dismissing her complaint against Dr. Yelvington for failure to perfect service, because Ms. Hackelton properly filed a motion to extend time to serve Dr. Yelvington within 120 days of adding him as a defendant. We affirm in part and reverse in part and remand.

The facts are alleged in Ms. Hackelton’s complaint. On October 25, 1995, Lois Ray was admitted at the emergency room of the Stuttgart Regional Medical Center (“SRMC”), where she was diagnosed with congestive heart failure by Dr. Malloy. On October 27, 1995, Mrs. Ray was released. On October 28, 1995, Mrs. Ray returned to the SRMC emergency room complaining of severe abdominal pain. She was seen by Dr. Malloy, who released her. On October 29, 1995, Mrs. Ray returned for a third time to the emergency room, and she was again admitted. Dr. Malloy continued to treat Mrs. Ray for “congestive heart failure” at SRMC from October 29, 1995, up to and through November 14, 1995, when Mrs. Ray was transferred to the care of Dr. Yelvington. Mrs. Ray died on November 22, 1995, from an infracted and perforated bowel, a condition which Ms. Hackelton asserts Dr. Malloy and Dr. Yelvington failed to identify, diagnose, and treat.

On October 1, 1997, Ms. Hackelton petitioned to be appointed administrator of the Estate of Lois Ray, her deceased mother. On October 2, 1997, she filed a complaint against Dr. Malloy, Stuttgart Regional Medical Center, and John Does 1-25 for medical malpractice and wrongful death.¹ On October 8, 1997, the probate court entered an order appointing Ms. Hackelton administrator. On October 15, 1997, Ms. Hackelton amended her original complaint to name Jack Wagoner, M.D., and Dr. Yelvington as defendants.² In her amended complaint, she incorporated by reference her original complaint filed on October 2, 1997, under Arkansas Rule of Civil Procedure 10. Ms. Hackelton also cited to Arkansas Rule of Civil Procedure 15 in her amended complaint and stated that she was amending her complaint in accordance with that rule to bring the action against Dr. Wagoner and Dr. Yelvington. On October 20, 1997, Ms. Hackelton filed an addendum to her amended complaint in which she noted that she was changing the style of the case to reflect that Dr. Wagoner and Dr. Yelvington had been added to her complaint as defendants.

On February 23, 1998, the trial court entered an order granting Ms. Hackelton’s motion for extension of time to serve Dr. Wagoner and Dr. Yelvington and extended the time for service and identification to June 19, 1998.³ Ms. Hackelton obtained service on Dr. Yelvington on May 6, 1998. On August 17, 1998, Dr. Yelvington moved to vacate the prior order of the trial court that granted Ms. Hackelton the extension of time to serve him. Dr. Yelvington’s motion also requested that the court dismiss him from the action with prejudice. The trial court denied Dr. Yelvington’s motion and ruled that the request for extension of time was made in accordance with Arkansas Rule of Civil Procedure 4(i).

On January 10, 2003, Dr. Yelvington moved to clarify the trial court’s previous denial of his motion to vacate in which he alleged that Ms. Hackelton’s motion to extend time was filed late in violation of Rule 4(i). On October 30, 2003, the court entered an order granting Dr. Yelvington’s motion for clarification and dismissed Dr. Yelvington from the action with prejudice.

On January 27, 2003, prior to his dismissal from the lawsuit, Dr. Yelvington filed a second motion for summary judgment in which he alleged that Ms. Hackelton did not have standing to bring this action and that her original complaint was a nullity. Before the court ruled on this motion, Dr. Yelvington was dismissed on the basis of lack of timely service. On December 18, 2003, the court entered an order dismissing Dr. Malloy from the action for the same reasons stated in Dr. Yelvington’s standing-to-sue motion, which was Dr. Yelvington’s second motion for summary judgment.⁴ On February 2, 2004, on motion by Ms. Hackelton, the court entered an order granting a nonsuit and dismissing without prejudice all parties not previously dismissed, in accordance with Rule 41 of the Arkansas Rules of Civil Procedure.

I, Dr. Malloy’s Dismissal

Ms. Hackelton first contends that she was the real party in interest under Arkansas Rule of Civil Procedure 17(a) because she was appointed the administrator of her mother’s estate. She asserts that even assuming arguendo that she was a nonexistent plaintiff at the time she filed her original complaint and not yet the real party in interest, she did file an amended complaint thirteen days later in her formal capacity as administrator. She further claims that after she was appointed administrator, she was the only person who had standing to file the wrongful-death suit, and that she did so.

In addition, she urges that Dr. Malloy waived his objection to her standing as the real party in interest by waiting five years and three months after the filing of the original and amended complaints to raise this issue. Because Dr. Malloy’s defense to Ms. Hackelton’s wrongful-death claim before she was appointed administrator is the same defense made to Ms. Hackelton’s claim after her formal appointment as administrator, she asserts that there was clearly no prejudice to Dr. Malloy.

As a third point, Ms. Hackelton argues that our prior case law regarding standing is inapplicable to this case, and the trial court’s reliance on those cases was error. She contends that is because in those cases the statute of limitations had run prior to the entry of the amended pleadings, while in her case at the time she filed her amended complaint and her addendum to the complaint, the statute of limitations had not run. Moreover, she claims that her amended complaint constituted a new action, which was timely filed within the time frame of the statute of limitations. Therefore, the trial court’s decision to dismiss her action because the amended complaint could not “relate back” to the original complaint was erroneous and should be reversed.

Dr. Malloy responds that summary judgment and his dismissal were proper because Ms. Hackelton was not the real party in interest under Rule 17(a) when she filed the original complaint pursuant to Ark. Code Ann. §§ 16-62-101 and 102 (1987). He adds that because Ms. Hackelton was not the real party in interest, she lacked standing to sue, and her original complaint was a nullity. He points out that in Davenport v. Lee, 348 Ark. 148, 72 S.W.3d 85 (2002), this court held that a nonexistent complaint cannot be corrected or salvaged.

Dr. Malloy further contends that he never waived his objection to Ms. Hackelton’s standing to sue. He emphasizes that Dr. Yelvington raised the objection to Ms. Hackelton’s standing before trial. He further claims that Rule 17(a) cannot preserve Ms. Hackelton’s complaint, when her complaint never existed. In this connection, he states that it is illogical to assert that he waived his defense to a void claim.

We first consider the judgment in this case entered by the trial court. Though a motion for summary judgment is referred to in the judgment, the complaint against Dr. Malloy was dismissed due to the expiration of the statute of limitations. Accordingly, we view this matter as an appeal from a grant of a motion to dismiss. Our standard of review in such appeals has recently been stated:

When reviewing a circuit court’s order granting a motion to dismiss, we treat the facts alleged in the complaint as tme and view them in the light most favorable to the plaintiff. See Preston v. University of Arkansas for Medical Sciences, 354 Ark. 666, 128 S.W.3d 430 (2003). In testing the sufficiency of a complaint on a motion to dismiss, ah reasonable inferences must be resolved in favor of the complaint, and ah pleadings are to be liberally construed. See id. Further, if there is any reasonable doubt as to the apphcation of the statute of limitations, this court will resolve the question in favor of the complaint standing and against the challenge. State v. Diamond Lakes Oil Co., 347 Ark. 618, 66 S.W.3d 613 (2002).

Brewer v. Poole, 362 Ark. 1, 7, 207 S.W.3d 458, 461 (2005).

Rule 17(a) of the Arkansas Rules of Civil Procedure reads, in pertinent part, that “[ejvery action shall be prosecuted in the name of the real party in interest.” To determine who is properly classified as the real party in interest in a wrongful-death claim, we look to the applicable statute:

Every action shah be brought by and in the name of the personal representative of the deceased person. If there is no personal representative, then the action shah be brought by the heirs at law of the deceased person.

Ark. Code Ann. § 16-62-102(b) (1987).

In St. Paul Mercury Ins. Co. v. Circuit Court of Craighead County, W. Div., 348 Ark. 197, 73 S.W.3d 584 (2002), all but one of the deceased’s heirs-at-law filed a pro se complaint prior to the expiration of the statute of limitations and claimed medical malpractice. Later, the appointed administrators, who consisted of some of the plaintiffs who had filed the original complaint, filed an amended complaint after the statute-of-limitations period had expired. This court held that the pro se plaintiffs had no standing to sue when they filed the original complaint. Even though the plaintiffs who filed the original complaint and those who filed the amended complaint were substantially the same persons, they were not the same parties and, thus, were not acting in the same capacities. We noted that while they did not have standing to sue when they filed the original pro se complaint, they did have standing when they filed the amended complaint as appointed administrators. But we added, “[u]nfortunately, the statute of limitations had expired in the meantime.” Id. at 205, 73 S.W.3d at 589.

We went on to say in St. Paul Mercury Ins. Co. that “[a]n action for wrongful death brought by a plaintiff in his capacity as an administrator pursuant to Ark. Code Ann. § 16-62-102 involves neither the same action, nor the same plaintiff as in a survival action brought by the same person in his individual capacity pursuant to Ark. Code Ann. § 16-62-101.” Id. We held that because the amended complaint in that case operated to substitute out “all the plaintiffs, and put in their place entirely new plaintiffs, it was not an amendment, but rather was a new suit.” Id. at 206, 73 S.W.3d at 589; see also Rhuland v. Fahr, 356 Ark. 382, 155 S.W.3d 2 (2004), Ark-Homa Foods, Inc. v. Ward, 251 Ark. 662, 664, 473 S.W.2d 910, 911 (1971) (noting that “[i]t is well settled that where an action is brought in-the name of a non-existing plaintiff, an amendment of complaint by substituting the proper .party to the action as plaintiff will be regarded as the institution of a new action as regards the statute of limitations”).

In the case at hand, it is clear that under § 16-62-102(b), Ms. Hackelton did not have standing to sue when she filed the original complaint on October 2, 1997, because she had not yet been appointed the administrator of Mrs. Ray’s estate and was not the sole heir. She was, however, appointed the administrator of the estate six days later. As a consequence, she was deemed to be a new party when she filed the amended complaint seven days later on October 15, 1997. As this court explained in St. Paul Mercury Ins. Co., “individual heirs at law are entirely distinct legal persons from . . . appointed administrators, and thus different parties.” 348 Ark. at 205, 73 S.W.3d at 589. Based on this court’s reasoning in St. Paul Mercury Ins. Co., the filing of an amended complaint by a new party constituted the commencement of a new suit. Because the new suit was initiated prior to the expiration of the statute of limitations period, there was no need for the suit to “relate back” to the original complaint filed on October 2,1997, under Arkansas Rule of Civil Procedure 15(c).

The only question that then remains is whether Ms. Hackelton’s amended complaint can incorporate by reference the contents of her initial complaint, which she did not have standing to bring. We recently addressed a related question in Brewer v. Poole, supra. In Brewer, this court held that where the plaintiff who filed the wrongful death suit did not comply with § 16-62-102(b) due to the lack of all the heirs-at-law as parties to the lawsuit, the original complaint was a nullity. See id. This court then said: “[w]here the original complaint is a nullity, Rules 15 and 17 [of the Arkansas Rules of Civil Procedure] are inapplicable because the original complaint never existed; thus, there is no pleading to amend and nothing to relate back.” Id. at 14, 207 S.W.3d at 466.

Applying Brewer to the instant case, we conclude that the original complaint filed by Hackelton was a nullity because Hackelton did not have standing to file the complaint as she was not the appointed administrator nor was she the sole heir at law at that time. Having said that, in the case before us, unlike Brewer, we have a new lawsuit commenced by a proper party plaintiff within the time period of the statute of limitations which incorporates by reference the allegations made in the original complaint. Furthermore, Rule 10(c) of the Arkansas Rules of Civil Procedure expressly provides that statements in a pleading can be adopted by reference in another pleading. That is precisely what Ms. Hackelton did with her amended complaint. She incorporated statements from her original complaint into her amended complaint by reference and, thus, allowed them to function as allegations in a new suit. This is categorically different from an attempt to amend an original complaint with a new party plaintiff and have that amendment relate back to the original complaint under Rule 15(c) after the statute-of-limitations period has passed. Relation-back, of course, was the issue in Brewer v. Poole, supra.

In short, although for purposes of relation back under Rule 15, the original complaint is a nullity because Ms. Hackelton lacked standing to sue at the time she filed it, the original complaint remains a document setting out allegations satisfying the fact-pleading requirements for a complaint set out in Ark. R. Civ. P. 8(a)(1). The facts pled in the original complaint may be adopted by reference under Ark. R. Civ. P. 10(c) into the timely amended complaint. Rule 15 and relation back under that rule are simply not relevant to adoption by reference under Rule 10. We reverse the trial court’s dismissal of Dr. Malloy and remand for further proceedings.

II. Dismissal of Dr. Yelvington

We turn next to the dismissal of Dr. Yelvington. Ms. Hackelton asserts that Dr. Yelvington was properly made a party in this case on October 20, 1997, when she filed an addendum to her amended complaint that named Dr. Yelvington as a party defendant in the caption of the action. According to her assertions, under Arkansas Rule of Civil Procedure 10(a), “the title of the action shall include the names of all the parties.” She reasons that this court’s case law also supports her argument that in order for a person to be made a party to a lawsuit, his or her name must be included in the caption of the case. Because October 20,1997, was the first time she included Dr. Yelvington as a party in the caption of the case, she claims that this is the date when he was formally made a party to the lawsuit. Hence, she contends that it is from this date that the 120-day period for service in Arkansas Rule of Civil Procedure 4(i) began to run. She further notes that Dr. Yelvington actually admitted this in his September 26, 2002, Motion for Partial Summary Judgment, where he alleged that “[b]y addendum to Amended Complaint, filed of record on October 20, 1997, Dr. Dennis Yelvington was added as a party defendant.” Ms. Hackelton adds that it was not until January of 2003 that Dr. Yelvington changed his position and claimed he was made a party defendant on October 15, 1997.

Dr. Malloy responds that Ms. Hackelton is raising the “caption” argument under Rule 10(a) for the first time on appeal. We agree. After scouring the record in this case, we find no argument based on Rule 10(a) that was made to the trial court relative to Dr. Yelvington. Nor do we find where the “admission” argument about when Dr. Yelvington was added as a party defendant was made to the trial court. It is elementary that this court will not consider arguments made by an appellant for the first time on appeal. Rhuland v. Fahr, 356 Ark. 382, 155 S.W.3d 2 (2004). We will not do so because it is incumbent on the parties to raise arguments initially to the trial court to give that court an opportunity to consider them. Hubbard v. Univ. of Arkansas Med. Sciences, 272 Ark. 500, 616 S.W.2d 10 (1981). Otherwise, this court would be placed in the position of reversing a trial court for reasons never presented to that court. Blaylock v. Strecker, 291 Ark. 340, 724 S.W.2d 470 (1987). We will not do this. Accordingly, we affirm the trial court in the dismissal of Dr. Yelvington from this action.

Affirmed in part. Reversed in part and remanded.

Glaze and Imber, JJ., concur.

1 In her complaint, Ms. Hackelton described the “John Does 1-25” as “representing all persons responsible for providing medical/nursing/health care and treatment to the deceased, or the liability insurance carrier for any defendant immune to direct action.”

2 At various times, Jack Wagoner is referred to as Jack Warner in the pleadings.

3 In her brief, Hackelton states that the time was extended to June 18,1998. Her motion for extension of time, which the court granted, requests, however, that the time be extended to June 19,1998.

4 From a review of the record, it appears that the trial court entered judgment in favor of Dr. Malloy based on the argument in Dr. Yelvington’s second motion for summary judgment. Dr. Malloy apparently did not file a motion incorporating the arguments made in Dr. Yelvington’s second motion for summary judgment, but he previously asked for dismissal in his answer to Ms. Hackelton’s original complaint.