Lead Opinion
Northstar Anesthesia of Alabama, LLC (“Northstar”), and Maria Bolyard, CRNA; Parkway Medical Clinic, Inc., d/b/a Parkway Medical Center (“Parkway”); and Jeffrey Markham, M.D. (“Dr. Markham”) (hereinafter collectively referred to as “the appellants”), filed three petitions for a permissive appeal, pursuant to Rule 5, Ala. R.App. P., from the Morgan Circuit Court’s orders denying the appellants’ motions for a summary judgment in a wrongful-death action brought by Paula B. Noble (“Paula”), as personal representative of the estate of Thomas A. Noble (“Thomas”), deceased, against the appellants.
I. Facts and Procedural History
The facts are undisputed. On November 18, 2011, Thomas died. On January 9,
On August 10, 2012, Paula filed a petition for a consent settlement of Thomas’s estate, seeking to close the estate; Paula specifically requested that she be discharged as the personal representative. On August 16, 2012, the probate court granted Paula’s petition and, among other things, ordered that “said Personal Representative be discharged and released.” •
On November 15, 2013, Paula, on behalf of Thomas’s heirs at law, after being discharged and released as the personal representative of Thomas’s estate, filed a wrongful-death action against the appellants under § 6-5-410, Ala.Code 1975. On November 18, 2013, the two-year limitations period for bringing a wrongful-death action set forth in § 6-5-410(d), Ala.Code 1975, expired: “(d) The [wrongful-death] action must be commenced within two years from and after the death of the testator or intestate.”
On December 16, 2013, having become aware of the fact that she lacked the representative capacity to maintain the wrongful-death action because she had been discharged and released as the personal representative of Thomas’s estate before she commenced the action, Paula filed a petition to “re-open” Thomas’s estate “so that she [could] continue as Personal Representative” for purposes of pursuing the wrongful-death action she filed on November 15, 2013. On the same day, the probate court entered an order in which it “re-appointed” Paula as the personal representative of Thomas’s estate and “re-issued” “the Original Letters of Administration” for the purpose of pursuing the wrongful-death litigation.
On December 30, 2013, Parkway filed an answer to Paula’s complaint; Parkway did not allege in its answer that Paula lacked the representative capacity to bring the wrongful-death action. On January 17, 2014, Dr. Markham also filed an answer to Paula’s complaint; Dr. Markham did not allege in his answer that Paula lacked the representative capacity to bring the wrongful-death action. On June 6, 2014, Northstar and Bolyard filed an answer to Paula’s complaint asserting, among other defenses, that Paula lacked the representative capacity to bring the wrongful-death action.
On April 24, 2015, Northstar and Bol-yard filed a motion for a summary judgment. Northstar and Bolyard argued that the wrongful-death action brought by Paula is a nullity because Paula was not the personal representative of Thomas’s estate at the time she filed the complaint. Northstar and Bolyard further argued that Paula’s action is barred because she was not reappointed as personal representative of Thomas’s estate until December 16, 2013, which is beyond the two-year limitations period set forth in § 6-5-410(d). Parkway and Dr. Markham also filed motions for a summary judgment asserting the same grounds.
On May 29, 2015, Paula filed a response to the appellants’ summary-judgment motions. Paula argued that the wrongful-death action is not a nullity and is not barred by the two-year limitations period in § 6-5-410(d) because, she argued, even though she was not the personal representative at the time she commenced the wrongful-death action, her reappointment as personal representative of Thomas’s estate related back to the time of Thomas’s
On June 19, 2015, the circuit court denied the appellants’ summary-judgment motions. The circuit court concluded that Paula “was personal representative at the time this wrongful death action was filed because [Paula] was established as personal representative and was never thereafter removed or replaced.”
On July 9, 2015, Paula filed an amended complaint setting forth the additional fact that the probate court had reappointed her as personal representative of Thomas’s estate. The appellants subsequently filed answers to Paula’s amended complaint.
On July 24, 2015, the circuit court granted the appellants permission to appeal the circuit court’s denial of their summary-judgment motions pursuant to Rule 5, Ala. R.App. P. The appellants then filed petitions for permission to appeal with this Court, which this Court granted.
II. Standard of Review
“ ‘Where, as here, the facts of a case are essentially undisputed, this Court must determine whether the trial court misapplied the law to the undisputed facts, applying a de novo standard of review. Carter v. City of Haleyville,669 So.2d 812 , 815 (Ala.1995). Here, in reviewing the denial of a summary judgment when the facts are undisputed, we review de novo the trial court’s interpretation of statutory language and our previous caselaw on a controlling question of law.’ ”
Wood v. Wayman,
III. Discussion
This Court has stated the following with regard to permissive appeals:
“In the petition for a permissive appeal, the party seeking to appeal must include a certification by the trial court that the interlocutory order involves a controlling question of law, and the trial court must include in the certification a statement of the controlling question of law. Rule 5(a), Ala. R.App. P. In conducting our de novo review of the question presented on a permissive appeal, ‘this Court will not expand its review ... beyond the question of law stated by the trial court. Any such expansion would usurp the responsibility entrusted to the trial court by Rule 5(a).’ BE&K, Inc. v. Baker,875 So.2d 1185 , 1189 (Ala. 2003).,..”
Alabama Powersport Auction, LLC v. Wiese,
“Is a wrongful death complaint filed by a person who had been appointed as the personal representative of the estate of the deceased (‘the estate’) a nullity when (1) the person was appointed personal representative of the estate on January 18, 2012, within two years of the death of the deceased; (2) the estate was closed and the person was discharged and released of her fiduciary duties and fiduciary capacity with regard to probate administration matters by order of the Probate Court on August 16, 2012; (3) no other person was appointed personal representative and no other probate matters were pursued; (4) the person, who had previously beenappointed to serve as personal representative of the estate, filed the complaint on November 15, 2013, within two years of the death of the deceased; and (5) the estate was re-opened and letters of administration were re-issued to the person on December 16, 2013, more than two years after the death of the deceased?”
Initially, we note that “a wrongful-death action in Alabama brought pursuant to § 6-5-410, Ala. Code 1975, a cause of action unknown at common law, is purely statutory and that this Court’s role is to strictly enforce the wrongful-death statute as written, and intended, by the legislature.” Alvarado v. Estate of Kidd,
“(a) A personal representative may commence an action and recover such damages as the jury may assess in a court of competent jurisdiction within the State of Alabama where provided for in subsection (e), and not elsewhere, for the wrongful act, omission, or negligence of any person, persons, or corporation, his or her or their servants or agents, whereby the death of the testator or intestate was caused, provided the testator or intestate could have commenced an action for the wrongful act, omission, or negligence if it had not caused death.”
(Emphasis added.) In Ex parte Hubbard Properties, Inc.,
“In Waters v. Hipp,600 So.2d 981 , 982 (Ala.1992), this Court explained:
“ ‘A wrongful death action is purely statutory; no such action existed at common law. Simmons v. Pulmosan Safety Equipment Corp.,471 F.Supp. 999 (S.D.Ala.1979). Section 6-5-410 provides that the personal representative of the deceased may bring a wrongful death action. A “personal representative,” for the purposes of § 6-5-410, is an executor or an administrator. Hatas v. Partin,278 Ala. 65 ,175 So.2d 759 (1965). One who sues under this section without having been appointed executor or administrator does not qualify under this section as a personal representative, and the suit is a nullity. Downtown Nursing Home, Inc. v. Pool,375 So.2d 465 (Ala.1979), cert. denied,445 U.S. 930 ,100 S.Ct. 1318 ,63 L.Ed.2d 763 (1980).’ ”
The appellants initially argue that Paula’s wrongful-death action is a nullity because Paula was not the personal representative of Thomas’s estate on November 15, 2013, when she filed the complaint in the wrongful-death action. The appellants argue that, even though Paula had been the personal representative of Thomas’s estate at one time, Paula was discharged and released as the personal representative of Thomas’s estate by the probate court’s August 16, 2012, order.
Paula argues that the probate court’s August 16, 2012, order should be read as discharging and releasing her from only the administrative matters regarding Thomas’s estate. Paula notes that this Court’s precedent very clearly states that a wrongful-death action is not brought on behalf of the estate of the deceased and that any damages awarded in such an action do not benefit the estate. Therefore, Paula argues, the probate court’s August 16, 2012, order discharged and released her only from her role as personal repre
Paula’s argument is not persuasive. The probate court’s August 16, 2012, order was a final judgment; it closed Thomas’s estate and discharged and released Paula from her responsibilities as personal representative. The probate court’s order broadly states that “said Personal Representative be discharged and released.” Nothing in the probate court’s order holds Thomas’s estate open for any reason or limits the court’s discharge and release of Paula as the personal representative of the estate. The probate court’s order is clear and unambiguous; Paula was discharged and released as personal representative for all purposes. As the appellants note in their briefs before this Court: “It appears axiomatic that one who may act only upon authority of a court appointment, may not continue to act after such authority has terminated, whether by death, resignation or by order of discharge or removal.” Humphrey v. Boschung,
As set forth above, a wrongful-death action may be brought only by a legally appointed “personal representative.” § 6-5-410(a). In Downtown Nursing Home, Inc. v. Pool,
Next, we must consider the effect, if any, of the probate court’s “re-appointment” of Paula as the personal representative of Thomas’s estate on December 16, 2013. We note that Paula’s reappointment as personal representative of Thomas’s estate occurred after the expiration of the two-year limitations period for wrongful-
The appellants are correct. In Wood v. Wayman,
In the present ease, Paula cites Ogle v. Gordon,
We note that Paula argues that Wood, Waters, Pool, and Humphrey, among other cases, are “distinguishable from the present case and inapposite because those cases involved situations where no probate proceedings involving appointment of a personal representative had ever been initiated prior to the filing of the lawsuit or expiration of the two-year limitations period.” Paula’s brief, at p. 42. However, as explained above, this is not a significant factor in this case. Paula was not the personal representative of Thomas’s estate at the time she commenced the wrongful-death action.
We also note that Paula requests that we overrule Wood and Pool. We decline to do so. In fact, on January 29, 2016, in Alvarado, this Court reaffirmed the applicability of Wood, which relied upon Pool. On March 4, 2016, in Ex parte Hubbard Properties, this Court relied upon these same principles. Paula has not presented any convincing argument that would cause this Court to reverse course. As Justice Bolin stated in his special concurrence in Alvarado:
“[A]ny revision of the wrongful-death statute, § 6-5-410, to provide for the possibility of the invocation of the relation-back doctrine, or any other savings provision, is within the wisdom and responsibility of the legislature and not a task for this Court. See, e.g., Thomas v. Grayson, 818 S.C. 82 , 86,456 S.E.2d 377 , 379 (1995)(‘The rule prohibiting an amendment to relate back was established when the period of limitation was a part of the wrongful death act. The limitation period has been moved from the wrongful death act to the general statute for limitation of civil actions. § 16—8—530(6)[, Ala.Code 1975]. This change indicates a legislative intent to no longer consider it a condition precedent to a wrongful death action, but rather a statute of limitations that would allow the relation back of an amendment.’).”
Accordingly, we answer the controlling question of law certified by the circuit court in the affirmative: Paula’s complaint is a nullity. The relation-back doctrine does not apply to save it.
We note that Paula also argues that Parkway and Dr. Markham “never pleaded or asserted, and therefore waived, any affirmative defense related to Paula Noble’s alleged lack of capacity or standing to bring and maintain this wrongful death action.” Paula’s brief, at p. 31. Paula argues that, “[a]s a necessary precedent to claiming or proving that Paula[’s] wrongful death lawsuit is a nullity, ... Markham and Parkway must challenge [Paula’s] capacity and/or standing to bring and maintain this wrongful death action by asserting an affirmative defense averring such an alleged lack of capacity or standing in this case.” Id. We do not find Paula’s argument convincing.
As explained above, Paula’s initial complaint is a nullity. A “nullity” is “[n]othing; no proceeding; an act or proceeding in a cause which the opposite party may treat as though it had not taken place, or which has absolutely no legal force or effect.” Black’s Law Dictionary 1067 (6th ed.1990). As a result, the appellants were not under an obligation to raise the affirmative defense of capacity because the filing of Paula’s complaint was “an act or proceeding in a cause which the opposite party may treat as though it had not taken place, or which has absolutely no legal force or effect.” In short, a nullity is a nullity and there is no need for one to timely assert an affirmative defense to it. This is in accord with our opinion released just four months ago stating the same proposition. Ex parte Hubbard Properties, supra (holding that a wrongful-death action commenced by a person who was not a personal representative was a nullity); see also Waters,
Based on the foregoing, we reverse the circuit court’s order denying the appellants’ summary-judgment motions and remand the case for proceedings consistent with this opinion.
1141158— MANDED. -REVERSED AND RE-
1141166— MANDED. -REVERSED AND RE-
1141168--REVERSED AND REMANDED.
Notes
. Although its decision is not binding on this Court, we note that in Nailen v. Ford Motor Co.,
“Whether or not this action has been brought by a personal representative of the estate cannot be disputed. The plaintiff was at one time the administrator of [the deceased's] estate; however, the deceased’s estate was closed and the plaintiff was discharged and released as administrator some seventeen (17) months prior to the filing of this action. In Downtown Nursing Home, Inc. v. Pool,375 So.2d 465 , 466 (Ala.1979), it was determined that the term 'personal representative’, as it is used in the wrongful death statute, means the executor or administrator of the testator or intestate. The Pool court further concluded that the person filing suit must be the personal representative at the time of filing and that amendments to substitute the personal representation or to otherwise comply after suit was filed, would not preclude dismissal of the action. Id. at 466. In light of Pool, it is obvious that this suit must be dismissed, if for no other reason than because the plaintiff was not the personal representative of the deceased’s estate at the time suit was filed.”
. We note that Paula does not argue on appeal, as she did in the circuit court, that her reappointment as personal representative of Thomas’s estate relates back to the time of Thomas’s death.
. Paula relies upon Alabama Power Co. v. White,
"Does ‘dependents,’ as used in [Ala.] Code 1975, § 25-5-11(a), require proof by the plaintiff as an essential element of her prima facie case that she is a dependent of the deceased employee, or does this termhave reference to the capacity of a party to bring the action ... ?”
Alabama Power,
Concurrence Opinion
(concurring in the result).
The main opinion holds that the wrongful-death action brought by Paula B. Noble is a nullity. I agree; this holding is in accord with an opinion released just four months ago stating the same proposition. Ex parte Hubbard Props., Inc.,
This Court has held that the doctrine of “relation back” does not apply when someone who is not the personal representative
This Court, in Alabama Power Co. v. White,
“Does ‘dependents,’ as used in [Ala.] Code 1975, § 25-5-ll(a), require proof by the plaintiff as an essential element of her prima facie case that she is a dependent of the deceased employee, or does this term have reference to the capacity of a party to bring the action ... ?”
Alabama Power,
“The respondent cites Ex parte Tyson Foods, Inc.,146 So.3d 1041 (Ala.2013), for the proposition that Carolyn merely lacked capacity to commence the [wrongful-death] action [under § 6-5-410] and, therefore, that the substitution of the personal representative of Louis’s estate as the plaintiff ‘relates back’ to the filing date of the complaint. Tyson dealt with whether the proper person had commenced a wrongful-death action under the additional strictures found in the Workers’ Compensation Act, Ala. Code 1975, § 25-5-1 et seq. In that case, the personal representative filed the complaint, which would properly commence the action under Ala.Code 1975, § 6-5-410, the wrongful-death statute. However, Ala.Code 1975, § 25-5-11, a part of'the Workers’ Compensation Act, requires that a ‘dependent ’ file the complaint; the personal representative in that case was not a dependent. A dependent was not substituted as a plaintiff until after the two-year ‘non-claim bar to recovery” in the wrongful-death statute had expired. See Ogle v. Gordon,706 So.2d 707 , 708 (Ala.1997) (noting that ‘this Court has held that the wrongful death statute, which provides a two-year limitations period, is a statute of creation, otherwise known as a non-claim bar to recovery, and that it is not subject to tolling provisions’).
“The issues in Tyson were whether the personal representative simply lacked capacity under the Workers’ Compensation Act and whether a dependent could be substituted as the proper plaintiff and, if so, whether the substitution would ‘relate back’ to the date the complaint was filed. Nevertheless, theaction had been properly commenced for purposes of the wrongful-death statute.”
Ex parte Hubbard Properties,
Paula’s second appointment as personal representative occurred after the limitations period had expired and does not relate back to the initial, timely filing of the complaint in the wrongful-death action because that initial filing was a nullity; the action never commenced in the first place; and after the limitations period expired without a personal representative commencing the action, the came of action expired.
. The term "personal representative” is not defined in § 6-5-410, but our caselaw has interpreted the phrase to include "executors and administrators.” Waters v. Hipp,
, To the extent that the prior decisions cited in Alabama Power discuss the lack of a requirement to plead and prove that one is a personal representative for purposes of the wrongful-death statute, and such discussion indicates that the issue is one of "capacity,” the more recent caselaw discussed above has called any such inference into question. If Alabama Power intended to hold that the failure of the personal representative to commence a wrongful-death action is a waivable issue of capacity, then it is contrary to Downtown Nursing Home, which was released the same day, and which held that such failure resulted in a “nullity” and that there could be no relation back.
Dissenting Opinion
(dissenting).
I respectfully dissent because of my view that Paula B. Noble’s second appointment as personal representative of the estate of Thomas A. Noble relates back to the date she filed her complaint in the wrongful-death action. See Wood v. Wayman,
I agree with much of Justice Bryan’s well written dissenting opinion. And he and I, as well as Justice Wise, reach the same result. I am not prepared, however, to conclude, as Justice Bryan does, that that result can be reached using Rule 15(c) and Rule 17(a), Ala. R. Civ. P., “regardless of the application of § 43-2-831,” Ala.Code 1975,
I would add as well that examination of the issue solely under a real-party-in-interest rubric does not yield a bright-line test, but instead apparently requires a case-by-case judgment call by the trial court as to whether the party bringing the wrongful-death lawsuit initially had a sufficiently close relationship or connection to the decedent’s heirs in order to allow the application of real-party-in-interest jurisprudence. See, e.g., Chavez v. Regents of Univ. of New Mexico,
Finally, I note, as does the main opinion, that Paula argues that Parkway Medical Clinic, Inc. (“Parkway”), and Dr. Jeffrey Markham waived the lack-of-capacity issue. The main opinion rejects that argument based on its decision that the original
In a Rule 5 permissive appeal, this Court is limited to answering the specific legal question certified by the trial court and accepted by this Court. The only question certified to this Court is the substantive issue whether the wrongful-death action was a nullity when the plaintiff, Paula, had been discharged as the personal representative of the estate at the time of the filing of the initial complaint but was later reappointed. The question whether, as a procedural matter, Parkway and Dr. Markham failed to raise that issue soon enough provided no basis for the trial court’s denial of their summary-judgment motions and is not a question certified to us by the trial court.
In the trial court, all parties argued over whether Paula had timely commenced a wrongful-death action at a point in time when she had the authority or capacity to do so. As to defendants Parkway and Dr. Markham, however, Paula also argued that those defendants had waived the issue of her capacity at the time she filed her initial complaint. The order denying the defendants’ motions for a summary judgment, however, decided the merits of the limitations defense as to all four defendants— Northstar Anesthesia of Alabama, LLC, and Maria Bolyard, CRNA, as well as Parkway and Dr. Markham—based solely on whether Paula should be considered in law to have been the personal representative at the time the initial complaint was filed. The trial court’s order did not discuss the issue of any alleged waiver as to Parkway and Dr. Markham. And, in accord with its own consistent rationale for denying the summary-judgment motions of all four defendants, the question certified to this Court by the trial court was limited to that capacity issue. Specifically, the trial court certified only the following question:
“Is a wrongful death complaint filed by a person- who had been appointed as the personal representative of the estate of the deceased (‘the estate’) a nullity when (1) the person was appointed personal representative of the estate on January 18, 2012, within two years of the death of the deceased; (2) the estate was closed and the person was discharged and released of her fiduciary duties and fiduciary capacity with regard to the probate administration matters by order of the Probate Court on August 16, 2012; (3) no other person was appointed personal representative and no other probate matters were pursued; (4) the person, who had previously been appointed to serve as personal representative of the estate, filed the complaint on November 15, 2013, within two years of the death of the deceased; and (5) the estate was re-opened and letters of administration were re-issued to the person on December 16, 2013, more than two years after the death of the deceased?”
Thus, the question of law certified to this Court is one of the merits of the issue of Paula’s capacity or authority to file the initial complaint when she did, not the procedural question whether any defendant had waived the right to assert that issue.
“ ‘In conducting our de novo review of the question presented on a permissive appeal, “this Court will not expand its review ... beyond the question of law stated by the trial court. Any such expansion would usurp theresponsibility entrusted to the trial court by Rule 5(a).” BE&K, Inc. v. Baker, 875 So.2d 1185 , 1189 (Ala. 2003)....’
“Alabama Powersport Auction, LLC v. Wiese,143 So.3d 713 , 716 (Ala.2013).”
As this Court stated in BE&K, Inc. v. Baker,
“It is ‘our time-honored rule that a final judgment is an essential precondition for appealing to this Court.’ John Crane-Houdaille, Inc. v. Lucas,534 So.2d 1070 , 1073 (Ala.1988). However, in exercising its rulemaking authority, this Court has provided in Rule 5 that ‘[a] party may request permission to appeal from an interlocutory order in civil actions under limited circumstances.’ (Emphasis added.) Before a party may request permission to appeal from an interlocutory order, the trial court must determine that ‘the interlocutory order involves a controlling question of law as to which there is substantial ground for difference of opinion,’ and ‘[tjhe trial judge must include in the [Rule 5(a) ] certification a statement of the controlling question of law.’ Once the trial court provides that certification, a petition for permission to appeal, in order to comply with Rule 5(b), must focus on ‘the controlling question of law determined by the order of the trial court.’
“The purposes of these requirements are obvious. First, Rule 5(a) ensures that the trial court has identified, and focused upon, what it considers to be the controlling question of law. Second, Rule 5(b) ensures that this Court is made aware of the question of law that will be presented for its review, if it grants permission to appeal. Therefore, consistent with the present requirements of Rule 5 and their purposes, this Court will not expand its review on permissive appeal beyond the question of la%v stated by the trial court. Any such expansion would usurp the responsibility entrusted to the trial court by Rule 5(a).
“In its Rule 5(a) certification, the trial court identified what, in its opinion, is the ‘controlling question of law* in this case: ‘Specifically, the issue presented is whether the claims asserted in the counterclaim relate back as to [the counterclaim defendants] under Ala.Code [1975,] § 6-8-84.’ However, under the undisputed facts, the trial court has not identified ‘a controlling question of law.’ Indeed, § 6-8-84 is irrelevant to any consideration of the compulsory counterclaims asserted by the Baker defendants. See Romar Dev. Co. v. Gulf View Mgmt. Corp.,644 So.2d 462 , 473 (Ala.1994) (‘ § 6-8-84 ... applies] only to permissive counterclaims’).... See also Exxon Corp. v. Department of Conservation & Natural Res.,859 So.2d 1096 , 1102 (Ala.2002) (‘In Romar, this Court ruled that all compulsory counterclaims, whether offensive or defensive, are not subject to the statute-of-limitations defense.’).
“On appeal, the counterclaim defendants seek to redefine the issue presented for our review, effectively abandoning the issue stated by the trial court. In their initial brief, Polar Property Development, Inc., and Polar Real EstateCorporation claim that the issue is whether ‘an untimely [compulsory] counterclaim relate[s] back for statute of limitation purposes, against counterclaim defendants who were not plaintiffs in the original complaint.’ Similarly, in their initial brief, BE & K, Inc., and BE & K Properties, Inc., identify the issue as whether ‘the untimely claims asserted in the [compulsory] counterclaim relate back as to newly added counterclaim defendants ..., none of which are or have ever been plaintiffs.’ These issues are beyond the scope of the issue stated by the trial court, and, consequently, are beyond the scope of our review on permissive appeal.
“For the foregoing reasons, we dismiss the appeal without prejudice.”
Even if it had been expressly certified by the trial court, the waiver question by its nature does not meet the requirements for permissive appeal. Whereas the capacity issue is a purely legal issue, the question of waiver discussed in the lead opinion is not. It turns on a fact-intensive inquiry into such matters as the timing and substance of the parties’ various filings with the trial court and that court’s discretionary determination as to whether any prejudice or other cause would preclude amending one or more of those filings. Yet, Rule 5 review is limited to “controlling question[s] of law.” Further still, it is limited to “controlling questions of law as to which there is substantial ground for difference of opinion.” There is not a substantial ground for difference of opinion as to the principles of waiver in relation to the assertion of an affirmative defense. There is only the issue of how the previously established principles of waiver should apply to any given set of procedural facts. Rule 5 is not an appro
Based on the foregoing, I do not see the waiver issue as an issue that is before this Court in this permissive appeal and therefore as an issue that stands in the way of my voting to dissent.
. Other cases in which the Court has found it important either explicitly or implicitly to
. Federal jurisprudence on the issue reflects the “evolution” of the law in the federal courts as to whether state law or federal law is ultimately controlling. See, e.g., In re Tylenol (Acetaminophen) Mktg., Sales Practices & Prods. Liab. Litig,,
Dissenting Opinion
(dissenting).
I agree that, under our current precedent, a wrongful-death action commenced by someone other than the personal representative is a nullity. However, I believe that precedent is out of line with the modern trend and should be overruled. The plaintiff, Paula B. Noble (“Paula”), has placed this issue squarely before us by asking us to overrule that precedent. I believe her request is well taken.
Alabama has a “nullity rule,” i.e., a wrongful-death action commenced by someone other than the personal representative is a nullity. See Ex parte Hubbard Props., Inc.,
However, in 2013, this Court clarified that, in Alabama, “standing” is a concept that is relevant only in public-law cases, not in private-law cases like the present one. Ex parte BAC Home Loans Servicing, LP,
Regardless of the underpinnings of the nullity rule in wrongful-death cases, I believe that position is outdated and that it should be abandoned. The nullity rule has been criticized as “a remnant of an earlier era of strict pleading requirements.” Trimble v. Engelking,
The modern position is illustrated by the Supreme Court of New Mexico’s decision in Chavez v. Regents of University of New Mexico,
“Our Rules of Civil Procedure are patterned after the Federal Rules of Civil Procedure. A majority of the federal courts allow a change in a plaintiffs capacity to sue to relate back to the action’s commencement under Fed. Rules Civ. P. 15(c) and 17(a). See 3 J. Moore, Moore’s Federal Practice § 15.15[4] (2d ed.1985); 6 C. Wright & A. Miller, Federal Practice & Procedure § 1555 (1971). Wrongful death actions have been specifically included within this principle. See, e.g., Davis v. Piper Aircraft Corp.,615 F.2d 606 (4th Cir.), cert. dismissed,448 U.S. 911 ,101 S.Ct. 25 ,65 L.Ed.2d 1141 (1980); Holmes v. Pennsylvania New York Central Transportation Co.,48 F.R.D. 449 (N.D.Ind. 1969); Shinkle v. Union City Body Co.,94 F.R.D. 631 (D.Kan.1982); Hunt v. Penn Central Transportation Co.,414 F.Supp. 1157 (W.D.Pa.1976). See also Annot., 12 A.L.R.Fed. 233 (1972).
“The reasoning of these cases has been explained as follows:
“ ‘Thus in cases involving an amendment, made after the applicable limitation period has run, which attempted to change the capacity or identity of the parties, the courts generally examined the facts of the case to ascertain whether the allowance of such amendment would be inconsistent with the notice requirements inherent in such limitation. Where plaintiff sought to change the capacity in which the action is brought, or in which defendant is sued, there is no change in the parties before the court, all parties are on notice of the facts out of which the claim arose, and relation back was allowed in both the case of the plaintiff and the defendant.’
“3 J. Moore, supra § 15.15[4.-1] at 15-157 (... footnotes omitted).
“Also, a majority of the state courts that have recently considered the issue have reached a similar result. See Annot.,27 A.L.R.4th 198 (1984); Annot.,3 A.L.R.3d 1234 (1965)....
“In the present case, the original pleading alleged a valid cause of action and certainly gave defendants notice of the claim within the statutory period.... Defendants would in no way be prejudiced if the appointment of [the mother] as personal representative is allowed to relate back to the initial filing of the action. We determine, therefore, that in this case relation-back should be permitted. Such relation-back may be accomplished either by permitting an amendment to relate back under Rule 15(c) or by allowing under Rule 17(a) ‘a reasonable time for ratification of commencement of the action by, or joinder or subdivision of the personal representative.”
Chavez,
Like New Mexico’s Rules of Civil Procedure, the Alabama Rules of Civil Procedure were patterned after the Federal Rules of Civil Procedure. Thus, federal cases applying the Federal Rules of Civil Procedure are persuasive authority in construing the Alabama Rules of Civil Procedure. Hilb, Rogal & Hamilton Co. v. Beiersdoerfer,
“Every action shall be prosecuted in the name of the real party in interest.... No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as ifthe action had been commenced in the name of the real party in interest.”
(Emphasis added.)
In Strother v. District of Columbia,
“While there is a split of authority on the issue of whether amendments seeking to change the capacity in which a plaintiff is suing relate back to the original filing, federal courts and state courts which have adopted the substance of Fed.R.Civ.P. 15(c) have interpreted the rule as permitting relation back. E.g., Longbottom v. Swaby,397 F.2d 45 (5th Cir.1968); Crowder v. Gordons Transports, Inc.,387 F.2d 413 (8th Cir.1967); Russell v. New Amsterdam Casualty Co.,303 F.2d 674 (8th Cir.1962); Atlanta Newspapers, Inc. v. Shaw,123 Ga. App. 848 ,182 S.E.2d 683 (1971); Gogan v. Jones,197 Tenn. 436 ,273 S.W.2d 700 (1954). These cases have found that there is no substantial prejudice to the defendant because ‘there is no change in the parties before the court (and) all parties are on notice of the facts out of which the claim arose.’ Moore’s Federal Practice 15.15(4.-1) (1974). We think this reasoning is sound.
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“We note that even before the adoption of the Federal Rules of Civil Procedure and our adoption of Rule 15(c), the [United States] Supreme Court held, under circumstances similar to those before us, that an amendment to change the capacity in which a plaintiff sues ought to relate back to the original filing. Missouri, Kansas & Texas Ry. v. Wulf,226 U.S. 570 ,33 S.Ct. 135 ,57 L.Ed. 355 (1913).”
Strother,
Other cases are in accord with the cases cited above. See, e.g., Esposito v. United States,
The position I advocate is not completely new even in this Court. In 1997, this Court actually took steps to move away from the nullity rule. In Ellis v. Hilburn,
Several months later in 1997, the Court moved even further away from the nullity rule in Ogle v. Gordon,
“The defendants cite Strickland v. Mobile Towing & Wrecking Co.,293 Ala. 348 ,303 So.2d 98 (1974), a case construing federal statutes (and holding that the plaintiff who filed the wrongful death claim was not the personal representative at the time the action was filed), for the proposition that the doctrine of relation back does not apply in this case, on the basis that the appointment, coming beyond the two-year limitations period, gave the plaintiff no capacity to sue and was a nullity and that, therefore, there is nothing to relate back to. Our decision in Strickland, however, came long before the Legislature’s codification of § 43-2-831. We, therefore, overrule Strickland’s holding regarding the application of the doctrine of relation back, insofar as it is inconsistent with what we hold today, but we note that Strickland correctly points out that under the doctrine of relation back one must have something to relate back to, and we note that in the present case the filing of the original petition is the event to which the appointment would relate back.”
Thus, in my opinion, Ogle actually eliminated the nullity rule in wrongful-death
In sum, I would overrule the nullity rule as stated in our wrongful-death cases beginning with Strickland, and I would allow relation back under Rule 15(c) or Rule 17(a) when appropriate. In this case, Paula should be allowed to amend the complaint to add herself as plaintiff in her role as personal representative, and that amendment should relate back to the filing of her complaint within the limitations period. The defendants had notice of the action within the limitations period and would not be prejudiced by the amendment. After the amendment, Paula would still be the party pursuing the action, though in her role as personal representative. The factual and legal issues would be unchanged. I see nothing in Alabama’s wrongful-death statute, § 6-5-410, that precludes the application of Rule 15(c) or Rule 17(a) in this case. Further, the fact that this Court has construed § 6-5^410, which provides a two-year limitations period, as a “statute of creation” and not as a statute of limitations does not bar the application of relation back under the Alabama Rules of Civil Procedure. See Ex parte Tyson Foods, Inc.,
Accordingly, I respectfully dissent.
WISE, J., concurs.
. Alabama does have an exception to the general rule that a personal representative must bring a wrongful-death action. Section 6-5-391, Ala.Code 1975, which provides for a wrongful-death action based on the death of a minor, permits a father or a mother to sue under that statute, without being appointed personal representative.
. There were no dissenters in Ellis, which was authored by Justice Shores and joined by Chief Justice Hooper and Justices Maddox, Houston, Kennedy, Cook, and Butts.
. There were no dissenters in Ogle, which was authored by Justice Maddox and joined by Chief Justice Hooper and Justices Kennedy, Butts, and See; Justice Cook concurred in the result,
. It is unclear to me whether the other 1997 decision, EUis, remains good law. Based on recent precedent applying a bright-line nullity rule, e.g,, Ex parte Hubbard Properties, it is possible that Ellis has been silently overruled. However, it is also possible that a majority of the Court would view Ellis as essentially creating an exception to the nullity rule, based on the facts of that case, in the same vein as Ogle, at least as that case was viewed by Wood.