Smith v. Rebsamen Medical Center, Inc.

387 S.W.3d 193, 2011 Ark. App. 722, 2011 WL 5974261, 2011 Ark. App. LEXIS 786
CourtCourt of Appeals of Arkansas
DecidedNovember 30, 2011
DocketNo. CA 11-257
StatusPublished
Cited by1 cases

This text of 387 S.W.3d 193 (Smith v. Rebsamen Medical Center, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Rebsamen Medical Center, Inc., 387 S.W.3d 193, 2011 Ark. App. 722, 2011 WL 5974261, 2011 Ark. App. LEXIS 786 (Ark. Ct. App. 2011).

Opinion

ROBERT J. GLADWIN, Judge.

h The Pulaski County Circuit Court dismissed the medical-malpractice case filed by appellants, Kenneth Smith, Jr., and Geraldean Smith, as co-special administrators of the estate of Mark Anthony Smith, by granting summary judgment on November 10, 2010, to appellees Rebsamen Medical Center and the other medical providers included as defendants in the lawsuit.1 Appellants argue on appeal that the circuit court erred by disregarding the nunc pro |2tunc order filed in a separate probate action. We agree and reverse the circuit court’s summary-judgment order.

Appellants moved in probate court to be appointed co-special administrators of the estate of Mark Anthony Smith, and the order appointing them was signed on May 26, 2010. However, the order was not file-marked in the clerk’s office until May 28, 2010. In the meantime, appellants filed their medical-malpractice case against ap-pellees in circuit court on May 26, 2010, with the mistaken information that the order appointing them co-special administrators had previously been filed in the probate case.

When appellees moved for summary judgment on August 9, 2010, they argued that appellants lacked standing to have filed the lawsuit against them because the order appointing appellants as co-administrators of the decedent’s estate in the probate matter was filed two days after the malpractice suit was filed. Further, they argued that appellants were forever barred from bringing suit against them because the applicable two-year statute of limitations had run. On August 12, 2010, appellees filed a motion for order nunc pro tunc in the probate case. The probate court granted the order, deeming that the order appointing co-special administrators was filed as of 9:00 a.m., May 26, 2010, which precedes the filing of the malpractice complaint.

Appellants responded to appellees’ motion for summary judgment in the malpractice case, arguing that the nunc pro tunc order removed the basis for appellees’ summary-judgment motion. Appellees refuted appellants’ arguments, mainly claiming that the nunc pro |atunc order prejudiced their rights as innocent third parties. The circuit court agreed with appellees and granted summary judgment, dismissing the cause of action for medical negligence against all of the defendants with prejudice. After an order was entered on December 6, 2010, dismissing any claims left open after the summary-judgment order was filed, a timely notice of appeal was filed, and this appeal followed.

Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Bridges v. Shields, 2011 Ark. 450, 385 S.W.3d 176. The question for this court to decide is whether the circuit court ruled correctly on the question of law presented.

In paragraph 6 of its summary-judgment order, the circuit court ruled:

On the date the Complaint was filed in this matter the plaintiffs had no legal standing to bring this action. The Complaint was a nullity. See, Hackleton [Hackelton ] v. Malloy, 364 Ark. 469[, 221 S.W.3d 353] (2006). Lack of standing cannot be cured utilizing any “relation back” provisions of the Arkansas Rules of Civil Procedure for any cause of action for which the limitations period had expired at the time of entry of the August 12, 2010 nunc pro tunc Order.

The law referring to “relation back” is contained in Rule 15(c)(1)-(2) of the Arkansas Rules of Civil Procedure (2011), and states as follows:

An amendment of a pleading relates back to the date of the original pleading when:
(1) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or
(2) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (1) is satisfied and, within the period provided by Rule 4(i) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.

The Arkansas Supreme Court stated in Francis v. Protective Life Ins. Co., 371 Ark. 285, 265 S.W.3d 117 (2007), that

Arkansas Rule of Civil Procedure 60 and case law extending back over 150 years give circuit courts the authority to correct a clerical mistake in an order at any time with a nunc pro tunc order, used to “make the record speak now what was actually done then.” See Ark. R. Civ. P. 60 (2007); Lord v. Mazzanti, 339 Ark. 25, 2 S.W.3d 76 (1999); Bridwell v. Davis, 206 Ark. 445, 447, 175 S.W.2d 992, 994 (1943). A circuit court is permitted to enter a nunc pro tunc order when the record is being made to reflect that which occurred but was not recorded due to a misprision of the clerk. Rossi v. Rossi, 319 Ark. 373, 892 S.W.2d 246 (1995). This court has defined a true clerical error, one that may be corrected by nunc pro tunc order, as “essentially one that arises not from an exercise of the court’s judicial discretion but from a mistake on the part of its officers (or perhaps someone else).” Luckes v. Luckes, 262 Ark. 770, 772, 561 S.W.2d 300, 302 (1978).

Id. at 293, 265 S.W.3d at 123.

Appellants argue that, even had the nunc pro tunc order been improper under Rule 60, appellees herein had no authority to challenge that order in the malpractice case. Appellants claim that the nunc pro tunc order was inappropriately disregarded when the malpractice case was dismissed. They cite Edwards v. Nelson, 372 Ark. 300, 275 S.W.3d 158 (2008), as disposi-tive of the issue.

In Edwards, the Arkansas Supreme Court held that the trial court, in a wrongful-death action brought on behalf of a patient’s estate, lacked jurisdiction to decide the validity of a probate order appointing the patient’s son as administrator of the estate. Id. at 304, 275 S.W.3d at 162. Further, the trial court could not dismiss the wrongful-death action on the ground that the son was ineligible to serve as administrator and lacked the authority to file the | wrongful-death action. Id. Appellants contend that appellees herein engaged in the same impermissible collateral attack on the probate order. We agree. When the trial court entertained the collateral attack in the malpractice case, the authority of the probate order was usurped.

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Related

Smith v. Rebsamen Medical Center, Inc.
2012 Ark. 441 (Supreme Court of Arkansas, 2012)

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387 S.W.3d 193, 2011 Ark. App. 722, 2011 WL 5974261, 2011 Ark. App. LEXIS 786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-rebsamen-medical-center-inc-arkctapp-2011.