St. Paul Mercury Insurance v. Circuit Court

73 S.W.3d 584, 348 Ark. 197, 2002 Ark. LEXIS 200

• Court: Supreme Court of Arkansas
• Decided: April 11, 2002
• Docket: 01-1311
• Status: Published

Opinions

Jim Hannah, Justice.

St. Paul Mercury Insurance CornDany seeks a writ of prohibition to stop the Craighead County Circuit Court from hearing a medical-malpractice action. Because a writ of prohibition is sought, jurisdiction lies in this court pursuant to Ark. R. Sup. Ct. 1-2(a)(3). The petition asserts that the trial court is wholly without jurisdiction.

St. Paul brought a motion to dismiss that included exhibits and reference to matters outside the pleadings. This converted the motion to a motion for summary judgment as provided for under Ark. R. Civ. P. 12(b). The motion was denied by the trial court. Therefore, absent a writ from this court, the case will proceed below.

The petition for a writ of prohibition is granted. The trial court erred in concluding that the amended complaint filed in May 2001 related back to the original pro se complaint. Because the amended complaint does not relate back to the original pro se complaint, the action is barred by the statute of limitations on medical-malpractice claims.

At the time that the pro se complaint was filed by the deceased’s parents and some of the other heirs at law, the probate , court had already appointed an administrator. Under Ark. Code Ann. § 16-62-101 (Supp. 2001), only the administrator could file a survival action. She did not do so. The pro se plaintiffs were without standing, and their complaint was a nullity. Additionally, even if the complaint were not a nullity, the filing of the amended complaint in May 2001 substituted entirely new plaintiffs and, therefore, constituted a new suit subject to the two-year statute of limitations. The action is barred by the statute of limitations.

Facts

On February 26, 1999, Timothy Thomas was taken to St. Bernard’s Hospital where he was treated for stab wounds and died that same day. On July 19, 1999, Timothy’s daughter, Stephanie Thomas Hart, was appointed special administrator of his estate. On February 23, 2001, a pro se complaint alleging medical malpractice was filed by Timothy’s parents and his other heirs-at-law with the exception of Ms. Hart. On February 26, 2001, the limitations period on any malpractice action expired. On March 13, 2001, St. Bernard’s filed a motion to dismiss based in part on a lack of standing. On April 24, 2001, Timothy’s parents were substituted for Stephanie as special administrators. On May 9, 2001, Timothy’s parents filed an “amended complaint” as plaintiff special administrators. On June 5, 2001, St. Bernard’s filed a motion to dismiss based upon the statute of limitations. The motion was denied, and this petition followed.

Writ of Prohibition

St. Paul’s filed a motion to dismiss. Matters outside the pleadings were considered. Exhibits were attached to the motion. As such, it is considered a motion for summary judgment as provided for under Ark. R. Civ. P. 12(b). However, as with a motion to dismiss, the denial of a motion for summary judgment is not appealable. Brinker v. Forrest City School District, 344 Ark. 171, 40 S.W.3d 265 (2001). See also, Nucor Holding Corp. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996).

Therefore, St. Paul seeks a writ of prohibition to stop the trial court from proceeding. In State v. Circuit Court of Lincoln County, 336 Ark. 122, 125, 984 S.W.2d 412, 414 (1999), this court stated:

A writ of prohibition is extraordinary relief which is appropriate only when the trial court is wholly without jurisdiction. Henderson Specialties, Inc. v. Boone County Circuit Court, 334 Ark. 111, 971 S.W.2d 234 (1998); Nucor Holding Co. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996). The writ is appropriate only when there is no other remedy, such as an appeal, available. Henderson Specialties, Inc. v. Boone County Circuit Court, supra; West Memphis Sch. Dist. No. 4 v. Circuit Court, 316 Ark. 290, 871 S.W.2d 368 (1994) (quoting National Sec. Fire & Cas. Co. v. Poskey, 309 Ark. 206, 828 S.W.2d 836 (1992)). When deciding whether prohibition will lie, we confine our review to the pleadings in the case. The Wise Company, Inc. v. Clay Circuit, 315 Ark. 333, 869 S.W.2d 6(1993).

See also, Willis v. Circuit Court of Phillips County, 342 Ark. 128, 27 S.W.3d 372 (2000); Pike v. Benton Circuit Court, 340 Ark. 311, 10 S.W.3d 447, 448 (2000). Jurisdiction is the power of the court to hear and determine the subject matter in controversy between the parties. Circuit Court of Lincoln County, 336 Ark. at 125.

Prohibition is a proper remedy when the jurisdiction of the trial court depends upon a legal rather than a factual question. Western Waste Indus. v. Purifoy, 326 Ark. 256, 930 S.W.2d 348 (1996); Fausett and Co. v. Bogard, 285 Ark. 124, 685 S.W.2d 153 (1985); Titsworth v. Mayfield, Judge, 241 Ark. 641, 409 S.W.2d 500 (1966). When jurisdiction depends on the establishment of facts or turns on facts which are in dispute, the issue is one correctly determined by the trial court. Steve Standridge Ins., Inc. v. Langston, 321 Ark. 331, 900 S.W.2d 955 (1995).

The issue before the trial court was the interpretation of Ark. Code Ann. § 16-62-101, and the applicability of Ark. R. Civ. P. 15 and 17. Therefore, this was a legal question. So, if there is no jurisdiction, the only way petitioners can obtain review by this court is by way of a petition for a writ of prohibition. Therefore, a petition for a writ of prohibition is a proper method to obtain review of jurisdiction by this court. Ramirez v. White County, 343 Ark. 372, 38 S.W.3d 298 (2001).

The Amended Complaint

In Arkansas, a medical-malpractice action must be brought within two years of “the date of the wrongful act complained of and no other time.” Ark. Code Ann. § 16-114-203 (Supp. 2001). The medical malpractice act applies to all causes of action for medical injury arising after April 2, 1979, including wrongful-death and survival actions arising from the death of a patient. See Pastchol v. St. Paul Fire & Marine Ins. 326 Ark. 140, 929 S.W.2d 713 (1996).

In this case, all treatment was provided on February 26, 1999. On February 23, 2001, a pro se complaint was filed, which was filed within the two-year limitations period. On May 9, 2001, an “amended complaint” was filed by new plaintiffs. This second complaint was not filed within the two-year limitations period. Thus, the “amended complaint” can not be valid if it does not relate back to the pro se complaint.

The pro se complaint was filed by Timothy’s two sisters and his parents, who constituted part, but not all, of Timothy’s heirs at law. On February 23, 2001, when the pro se complaint was filed, an estate had already been opened for Timothy. As noted, Stephanie Hart had been previously appointed administrator on July 19, 1999.

The pro se complaint asserted damages based upon injuries suffered by Timothy prior to his death. Thus, a survival action is asserted. A survival action is a statutory action, which may be brought after the person’s death by his or her executor or administrator. Ark. Code Ann. § 16-62-101. See also, First Commercial Bank v. United States of America, 727 F. Supp. 1300 (E.D. Ark. 1990). Because the survival action, just as a wrongful-death action, is a creation of statute, it only exists in the manner and form prescribed by the statute. Ramirez, supra. It is in derogation of the common law and must be strictly construed, and nothing may be taken as intended that is not clearly expressed. Id. The right to amend a complaint in circumstances such as we are dealing with is substantive, and not procedural, and the right to recover under the statute is dependent upon the complaining party bringing himself within the terms of the statute, as construed by this court. Ark. Code Ann. § 16-62-101; Ramirez, supra. Thus, the survival action could only be brought by .Ms. Hart.

The conclusion we are compelled to reach is that the pro se complaint was a nullity. Had the motion to dismiss been heard before the amended complaint was filed, the complaint should have been dismissed based upon a lack of standing. Ramirez, supra. The pro se complaint was not permitted under the statute. Ark. Code Ann. § 16-62-101. Thus, there was no complaint to amend in May 2001.

The trial court relied on the relation back doctrine, which is a reference to Ark. R. Civ. P. 15(c). Rule 15 provides that “a party may amend his pleadings. . . .” However, Rule 15 is a procedural rule that controls how a party may amend existing pleadings. Before the rule can apply, there must be pleadings to amend.

Rule 15 applies, for example, when an amendment permissibly changes the party against whom the claim is asserted or adds a party after the statute of limitations has run, and it may relate back to the time of filing of the original complaint. Southwestern Bell Tel. Co. v. Blastech, 313 Ark. 202, 852 S.W.2d 813 (1993). Rule 15 makes liberal provision for amendments to pleadings and even allows a plaintiff to amend to add new claims arising out of the conduct alleged in the initial valid complaint. Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985). These cases, and the cited case law, all deal with a plaintiff amending an existing valid pleading to state a new cause of action against a defendant or to add a new defendant where proper. Rule 15 simply would not help the appellees in this case because there was no pleading to amend when the Thomases filed their “amended complaint” as administrators.

The pro se plaintiffs were without standing. This court has stated that where the plaintiff has no standing, but prevails anyway, the prejudice to the defendant is obvious. Daughhetee v. Shipley, 282 Ark. 596, 669 S.W.2d 886 (1984). A survival action is a statutory action, and pursuant to the statute, only an administrator or executor could bring suit. Ark. Code Ann. § 16-62-101. The pro se plaintiffs were, therefore, without standing.

The trial court found that the two sets of plaintiffs were substantially the same parties. They were the same persons, but they were not the same parties. They had no standing when they filed the pro se complaint, and they did when they filed the amended complaint as appointed administrators. Unfortunately, the statute of limitations had expired in the meantime. The Thomases as individual heirs at law are entirely distinct legal persons from the Thomases in their later capacity as appointed administrators, and thus different parties. An 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. Murrell v. Springdale Me. Hosp., 330 Ark. 121, 952 S.W.2d 153 (1997).

Arkansas Rules of Civil Procedure 15(c) cannot be used to somehow relate the administrators’ suit back to the pro se suit. This rule permits the amendment of a pleading to “relate back” to the date of the original pleading. Its purpose is not to permit the relation back of an entirely separate lawsuit as appellants attempt in this case. Elzea v. Perry, 340 Ark. 588, 12 S.W.3d 213 (2000). The amended complaint substituted out the plaintiffs, and substituted in entirely new plaintiffs. Where the amended complaint substituted out all the plaintiffs, and put in their place entirely new plaintiffs, it was not an amendment, but rather was a new suit. Floyd Plant Food Co. v. Moore, 197 Ark. 259, 122 S.W.2d 463 (1938).

In concluding the trial court erred, we are not unaware that the amended complaint asserted a cause of action for wrongful death and that this is a remedial statute that should be interpreted liberally with a view toward accomplishing its purposes. Chatelain v. Kelly, 322 Ark. 517, 910 S.W.2d 215 (1995). However, with respect to whether such a cause of action is stated, the action is one that is of statutory creation, and is in derogation or at variance with the common law, and therefore, we construe the statute strictly. Nothing is to be taken as intended that is not clearly expressed. Lawhorn Farm Serv. v. Brown, 335 Ark. 272, 984 S.W.2d 1 (1998).

The pro se plaintiffs could not bring the action. In Arkansas, only a real party in interest may bring a cause of action. Ark. R. Civ. P. 17. See also, TB of Blytheville v. Little Rock Sign & Emblem, 328 Ark. 688, 946 S.W.2d 930 (1997). The real party in interest is considered to be the person or corporation who can discharge the claim on which the allegation is based, not necessarily the person ultimately entitled to the benefit of any recovery. Forrest Const. v. Milam, 345 Ark. 1, 43 S.W.3d 140 (2001). However, Rule 17 specifically notes that an administrator, however, may bring suit for the benefit of another without joining a party for whose benefit the action is being brought. The real parties in interest were the heirs at law; however, under the statute, the administrator had to file.suit and did not do so.

Because the pro se complaint was not permitted under the survival statute, there was no complaint to amend in May. Also, as already discussed, the amended complaint was the filing of a new lawsuit. The attempted substitution of the only parties that could maintain the action in place of parties that could not, was in the nature of the filing of a new action. Floyd Plant Food Co., supra. The new action in May 2001 was barred by the statute of limitations. Ark. Code Ann. § 16-114-203.

The writ of prohibition is granted.

Imber, J., concurring. Glaze, J., not participating.