{ "id": 6138837, "name": "Darrin GREEN, M.D., and Floyd Gonzalez, M.D. v. Epigmenio NU\u00d1EZ", "name_abbreviation": "Green v. Nu\u00f1ez", "decision_date": "2007-03-14", "docket_number": "CA 06-1072", "first_page": "149", "last_page": "156", "citations": [ { "type": "official", "cite": "98 Ark. App. 149" }, { "type": "parallel", "cite": "253 S.W.3d 11" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "76 Ark.App. 264", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140787 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark-app/76/0264-01" ] }, { "cite": "362 Ark. 352", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3558787 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/ark/362/0352-01" ] }, { "cite": "233 Ark. 328", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1691731 ], "weight": 2, "year": 1961, "pin_cites": [ { "parenthetical": "holding that a nunc pro tunc order may be entered to make the record conform to the action that was in reality taken" }, { "parenthetical": "holding that a nunc pro tunc order may be entered to make the record conform to the action that was in reality taken" } ], "opinion_index": 0, "case_paths": [ "/ark/233/0328-01" ] }, { "cite": "8 Ark. App. 20", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136370 ], "weight": 2, "year": 1983, "pin_cites": [ { "parenthetical": "holding that the making or refusing of a nunc pro tunc order rests in the sound discretion of the lower court" }, { "parenthetical": "holding that the making or refusing of a nunc pro tunc order rests in the sound discretion of the lower court" } ], "opinion_index": 0, "case_paths": [ "/ark-app/8/0020-01" ] }, { "cite": "354 Ark. 168", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 36025 ], "weight": 2, "year": 2003, "pin_cites": [ { "parenthetical": "holding that, where a discussion or comment in an opinion is not necessary to the decision reached therein, the discussion or comment is obiter dictum and that the appellate court is not bound by it, even if couched in terms that imply the court reached a conclusion on a matter" } ], "opinion_index": 0, "case_paths": [ "/ark/354/0168-01" ] }, { "cite": "242 Ark. 111", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717747 ], "weight": 4, "year": 1967, "pin_cites": [ { "page": "114" }, { "page": "887-88" } ], "opinion_index": 0, "case_paths": [ "/ark/242/0111-01" ] }, { "cite": "87 Ark. App. 320", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140867 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "325-26" }, { "page": "543" } ], "opinion_index": 0, "case_paths": [ "/ark-app/87/0320-01" ] }, { "cite": "362 Ark. 117", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3559277 ], "weight": 3, "year": 2005, "opinion_index": 0, "case_paths": [ "/ark/362/0117-01" ] }, { "cite": "70 Ark. App. 136", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138992 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark-app/70/0136-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-55-201", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2005, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 1 }, { "cite": "2003 Ark. Acts 2130", "category": "laws:leg_session", "reporter": "Ark. Acts", "opinion_index": 1 }, { "cite": "86 Ark. App. 154", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137749, 5404879 ], "weight": 2, "year": 2004, "opinion_index": 1, "case_paths": [ "/ark-app/86/0154-01", "/ark/357/0154-01" ] }, { "cite": "355 Ark. 547", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 2648295 ], "weight": 2, "year": 2004, "opinion_index": 1, "case_paths": [ "/ark/355/0547-01" ] }, { "cite": "Ark. Code Ann. \u00a7 28", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 1 }, { "cite": "362 Ark. 117", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3559277 ], "weight": 2, "year": 2005, "opinion_index": 1, "case_paths": [ "/ark/362/0117-01" ] } ], "analysis": { "cardinality": 749, "char_count": 16169, "ocr_confidence": 0.77, "pagerank": { "raw": 1.0997720922370316e-07, "percentile": 0.5679771291685345 }, "sha256": "0acb2006b8133222db874a6c66aa9f52213678c331278996f5d305f5f055de9b", "simhash": "1:64ce8c30e104c6eb", "word_count": 2615 }, "last_updated": "2023-07-14T22:09:49.949226+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Robbins, J., agrees.", "Griffen, J., concurs." ], "parties": [ "Darrin GREEN, M.D., and Floyd Gonzalez, M.D. v. Epigmenio NU\u00d1EZ" ], "opinions": [ { "text": "Robert J. Gladwin, Judge.\nAppellants asked to intervene in this probate matter to determine whether appellee Epigmenio N\u00fa\u00f1ez was a duly appointed personal representative when he filed a wrongful-death/survival lawsuit against them. The probate judge denied the intervention, and this appeal followed. We affirm.\nMr. Nu\u00f1ez\u2019s son died on January 18, 2004, while allegedly under the care of the appellant physicians. On February 25, 2005, Mr. N\u00fa\u00f1ez asked the probate court to appoint him administrator of his son\u2019s estate. He requested letters of administration, declared the estate\u2019s primary asset to be the potential benefits from a wrongful-death lawsuit, and sought approval of a legal-representation contract.\nOn January 6, 2006, the court entered an order appointing Mr. N\u00fa\u00f1ez as administrator, but no letters of administration were issued at that time. On January 13, 2006, Mr. N\u00fa\u00f1ez sued appellants, asserting wrongful-death and survival causes of action based on medical malpractice.\nOn March 30, 2006, which was about six weeks after the suit was filed, the probate judge ordered the court clerk to \u201cissue Letters of Administration [to Mr. N\u00fa\u00f1ez] as of January 6, 2006, nunc pro tunc.\u201d The letters were then issued bearing the date January 6, 2006.\nOn April 25, 2006, appellants filed a motion to intervene in the probate case. They contended that, because Mr. N\u00fa\u00f1ez failed to obtain letters of administration prior to filing the January 13, 2006, lawsuit, he had no standing to bring the action. And, they claimed, because the two-year statute of limitations on medical-malpractice actions had expired by the time the letters were actually issued, the suit was time-barred. They therefore asked to intervene for the purpose of protecting their statute-of-limitations defense and for the purpose of setting aside the nunc pro tunc order.\nOn June 26, 2006, the probate judge denied the motion to intervene. He essentially reasoned that the outcome of the intervention would not favor appellants and they therefore had no interest in the probate matter. Among the court\u2019s rulings were that Mr. Nu\u00f1ez\u2019s tort complaint was not a nullity because he had been appointed as administrator at the time he filed the lawsuit, despite not yet having letters of administration, and that the issuance of the letters of administration nunc pro tunc, effective January 6, 2006, was proper. Appellants now appeal from the denial of their motion to intervene, which is an appealable order. See N. W. Ark. Area Agency on Aging v. Golmon, 70 Ark. App. 136, 15 S.W.3d 363 (2000).\nProbate matters are reviewed de novo on appeal. Helena Reg\u2019l Med. Ctr. v. Wilson, 362 Ark. 117, 207 S.W.3d 541 (2005). We will not disturb the probate judge\u2019s decision absent an abuse of discretion or a finding that the judge\u2019s decision is clearly erroneous. Id.\nWe first consider whether Mr. N\u00fa\u00f1ez was required to have letters of administration issued to him before he was empowered to file a wrongful-death/survival action. In his petition seeking appointment as administrator, Mr. N\u00fa\u00f1ez requested letters of administration and evidenced his intention to file suit on behalf of the estate. In the order appointing him administrator, the court acknowledged the potential for a lawsuit, dispensed with bond, and approved a legal-representation contract. Under these particular circumstances, it is quite clear that the court, upon entering the order of appointment on January 6, 2006, granted Mr. N\u00fa\u00f1ez the authority to file the lawsuit.\nAppellants contend, however, that such authority cannot be conferred until letters of administration are issued. They point out that, in Filyaw v. Bouton, 87 Ark. App. 320, 191 S.W.3d 540 (2004), we stated that an order appointing a personal representative was not effective until it was filed with the clerk and \u201cletters of administration were issued\u201d and that the personal representative in that case had no standing to file a wrongful-death suit \u201cuntil the issuance of the letters [of administration].\u201d Id. at 325-26, 191 S.W.3d at 543. In so stating, we referred to Jenkins v. Means, 242 Ark. 111, 411 S.W.2d 885 (1967), whose language indicated that, under certain venue statutes, letters of administration were required before a personal representative could \u201csue or be sued.\u201d Id. at 114, 411 S.W.2d at 887-88. Despite the language in Filyaw and Jenkins, we decline to apply them here because both cases are readily distinguishable. In Jenkins, the court ruled that the purported personal representative could not be served with process because she had not yet filed her petition for appointment. In Filyaw, we held that the purported personal representative had no authority to file suit because the order appointing him had not been entered of record. No such infirmities are present here. Mr. Nu\u00f1ez\u2019s appointment order was duly entered before he filed suit.\nNevertheless, we must come to terms with our language in Filyaw. The issue in Filyaw was whether the trial court\u2019s mere signature on an order appointing a personal representative was sufficient to confer the authority to file suit. We held that it was not and that the order must be entered, i.e., filed with the clerk, to be effective. However, in addition to arriving at that conclusion we chose \u2014 not wisely perhaps but in the spirit of accommodation \u2014 to address Mr. Filyaw\u2019s response to a claim by one of the appellees that he was required both to be appointed and receive letters of administration. The result was the language quoted above, which is now relied on by appellants. In retrospect, it is plain that our discussions regarding letters of administration in Filyaw were not necessary to the decision we reached. We therefore determine that the language is obiter dictum, and we are not bound by it. See Ward v. Williams, 354 Ark. 168, 118 S.W.3d 513 (2003) (holding that, where a discussion or comment in an opinion is not necessary to the decision reached therein, the discussion or comment is obiter dictum and that the appellate court is not bound by it, even if couched in terms that imply the court reached a conclusion on a matter).\nSo we reiterate our conclusion that the trial court, by its order entered January 6, 2006, conferred on Mr. N\u00fa\u00f1ez the authority to file the wrongful-death/survival lawsuit. From that conclusion, it is no great step to say that the court, in issuing the letters of administration nunc pro tunc to January 6, 2006, committed no abuse of discretion. See Croft v. Croft, 8 Ark. App. 20, 648 S.W.2d 511 (1983) (holding that the making or refusing of a nunc pro tunc order rests in the sound discretion of the lower court). The court explained its decision as follows:\nThe Court properly issued the order of March 30, 2006 directing the Clerk to issue the letters of administration nunc pro tunc. The original petition requested that letters be issued. Although no explicit direction to issue letters of administration was included in the Order, the intent of the Order was to empower the Administrator to file the wrongful death and survival lawsuit. The nunc pro tunc order merely memorializes what was actually done when the Administrator was appointed. The Administrator had a right to rely on that Order.\nThe judge\u2019s words reflect that, under these circumstances, he viewed the letters as a memorialization of that which had, in reality, already been accomplished \u2014 authorizing Mr. N\u00fa\u00f1ez to act as administrator for the purpose of filing suit. See generally Fitzjarrald v. Fitzjarrald, 233 Ark. 328, 344 S.W.2d 584 (1961) (holding that a nunc pro tunc order may be entered to make the record conform to the action that was in reality taken). Given the court\u2019s clear decision to confer the necessary authority on Mr. N\u00fa\u00f1ez by its January 6, 2006, order, we cannot say that the court\u2019s nunc pro tunc issuance of the letters, effective to that date, was an abuse of discretion.\nBased on the foregoing, we conclude that, at the time Mr. N\u00fa\u00f1ez filed suit on January 13, 2006, he was clothed with the authority to do so. Appellants therefore have no interest in the probate action and no reason to intervene, either as a matter of right or by permission. The probate court\u2019s denial of the intervention is affirmed.\nAffirmed.\nRobbins, J., agrees.\nGriffen, J., concurs.\nThe two-year statute of limitations for medical malpractice applies where death ensues from medical injuries. See Davis v. Parham, 362 Ark. 352, 208 S.W.3d 162 (2005).\nThe court cited other reasons for its ruling, but we need not address them, given that we are affirming on other grounds. However, there is one matter that deserves comment. The court ruled that Mr. Nu\u00f1ez\u2019s complaint was not a nullity because, in addition to its being filed by him as administrator, it was filed alternatively by him and his wife as heirs at law. However, that alternative filing would have had no effect on the survival action. A survival action must be brought by the estate\u2019s personal representative and cannot be brought by the heirs. See Smith v. St. Paul Fire & Marine Ins. Co., 76 Ark.App. 264, 64 S.W.3d 764 (2001).", "type": "majority", "author": "Robert J. Gladwin, Judge." }, { "text": "Wendell L. Griffen, Judge,\nconcurring.\nWe love to overlook the boundaries which we do not wish to pass.\n\u2014\u2022 Samuel Johnson (1709-1784)\nI write separately to address the argument that appellants had standing to intervene in the probate proceeding for administration of the decedent\u2019s estate. Our probate code limits the class of \u201cinterested persons\u201d to heirs, devisees, spouses, creditors, and others who have a property right, interest in, or claim against the estate being administered. Ark. Code Ann. \u00a7 28-l-102(a)(ll) (Repl. 2004). No legislation to expand or otherwise amend the definitions in \u00a7 28-1-102 has been enacted since 1949. We presume that the Arkansas General Assembly is familiar with the appellate courts\u2019 interpretations of statutes as well as prior legislation. Estate of Hull v. Union Pac. R. Co., 355 Ark. 547, 141 S.W.3d 356 (2004); Benson v. State, 86 Ark. App. 154, 164 S.W.3d 495 (2004). Therefore, it follows that the legislature is fully aware of the Arkansas probate code and its definition of \u201cinterested persons.\u201d With the increased focus on medical-malpractice litigation, as evidenced by the passage of the Civil Justice Reform Act of 2003, No. 649, 2003 Ark. Acts 2130 (codified at Ark. Code Ann. \u00a7 16-55-201 et seq. (Repl. 2005)), we can also presume that the Arkansas General Assembly is particularly knowledgeable of statutes concerning limitation of actions, medical malpractice, wrongful death, and probate estates. Nevertheless, I am unaware of any attempt to amend the probate code so as to expand the definition of \u201cinterested persons\u201d to include potential or target defendants who would assert defenses against threatened or impending litigation that might benefit estates. Apparently, the standing argument advanced by appellants in this appeal is the first attempt to judicially expand the definition of \u201cinterested persons\u201d to that end.\nThroughout this case, appellants have contended that they have a right to intervene in a probate proceeding to administer a decedent\u2019s estate under Rule 24 of the Arkansas Rules of Civil Procedure. Appellants rely heavily on Helena Regional Medical Center v. Wilson, 362 Ark. 117, 207 S.W.3d 541 (2005), for the proposition that they need not be within the class of \u201cinterested persons\u201d set forth in the probate code if they meet the requirements of Rule 24. To have an absolute right to intervene, a party must \u201cclaim an interest relating to the property or transaction which is the subject of the action.\u201d Ark. R. Civ. P. 24(a). To have a permissive right, a party must have a claim or defense in common with the question of law or fact at issue in the main action. Ark. R. Civ. P. 24(b).\nIn the instant case, the impending medical-malpractice action against appellants clearly did not qualify appellants as \u201cinterested persons\u201d so as to create standing for them to appear in the probate court and challenge whether the appellee was fit to serve as administrator of the decedent\u2019s estate. Appellants do not allege that they are heirs, devisees, spouses, creditors, or otherwise claimants against the decedent\u2019s estate. They are target defendants in the medical-malpractice claim that is the sole asset of the estate. While appellants obviously are \u201cinterested\u201d in not being sued, and in being successful if they are sued, that objective does not create any ground for them to challenge how the estate is administered and who should administer it.\nAppellants\u2019 argument that they have standing in the probate proceeding due to their statute of limitations defense to the estate\u2019s tort claim is facially inviting. According to that argument, because the probate proceeding is where the authority to assert a tort claim on behalf of an estate is determined, appellants (and persons similarly situated) will forfeit their statute of limitations defense if they are prevented from appearing as \u201cinterested persons\u201d to challenge untimely appointments of administrators. Defendants may not challenge the validity of a probate appointment in a tort action. If the probate appointment is dispositive on a limitations defense, it would seem logical to grant standing to a tort defendant to challenge the probate appointment in order to assert the limitations defense. Otherwise, appellants argue, the defense would effectively be lost. Thus, appellants rely upon the procedure for intervention prescribed by Rule 24 of the Arkansas Rules of Civil Procedure to gain access to the probate proceeding in order to protect their statute of limitations affirmative defense.\nAlas, \u201cthe devil is in the details.\u201d Whatever the facts may be surrounding a statute of limitations defense, those facts have nothing to do with determining who should administer an estate or how it should be administered. Moreover, there are sound reasons why a probate judge should not confuse the process for administering an estate with adjudicating a tort claim that is an estate asset. The probate court determines whether and when a person is authorized to prosecute a tort claim on behalf of an estate. That decision is separate from whether the tort claim is meritorious, on whatever grounds. That decision is also separate from whether a likely defendant to a tort claim will assert an affirmative defense, and whether an asserted defense (such as limitations) is valid. Simply put, whether a tort defendant will prevail on a limitations defense should not concern the probate court when it considers a petition to appoint an administrator because the probate proceeding does not function to adjudicate tort claims or decide defenses to them.\nCourts and judges should not engage in actions that are essentially legislative in their effect. A decision that expands the class of \u201cinterested persons\u201d for purposes of probate administration beyond the individuals named in a statute is legislative action, no matter how it may be asserted. The General Assembly does not adjudicate tort claims. The courts should not legislatively create new members of the class of \u201cinterested persons\u201d concerning administration of an estate.\nDespite the superficial attractiveness of appellants\u2019 contention regarding standing, neither the procedure for intervention under Rule 24 of the Arkansas Rules of Civil Procedure nor the understandable interest of tort defendants to assert affirmative defenses justifies disregard for the separation-of-powers doctrine upon which our system of government stands. It is neither necessary nor wise for courts and judges to judicially legislate an amendment to the statutory definition of \u201cinterested persons\u201d found in the probate code. Rather, appellants should pursue the legislative process to achieve the result they seek.", "type": "concurrence", "author": "Wendell L. Griffen, Judge," } ], "attorneys": [ "Mitchell, Williams, Selig, Gates & Woodyard, PLLC, by: Ken Cook, Jeffrey L. Singleton, and Anthony W. Juneau, for appellant Darren Green, M.D.", "Kutak Rock, by: Phil Malcom and Bradley S. Runyon, for appellant Floyd Gonzalez, M.D." ], "corrections": "", "head_matter": "Darrin GREEN, M.D., and Floyd Gonzalez, M.D. v. Epigmenio NU\u00d1EZ\nCA 06-1072\n253 S.W.3d 11\nCourt of Appeals of Arkansas\nOpinion delivered March 14, 2007\nMitchell, Williams, Selig, Gates & Woodyard, PLLC, by: Ken Cook, Jeffrey L. Singleton, and Anthony W. Juneau, for appellant Darren Green, M.D.\nKutak Rock, by: Phil Malcom and Bradley S. Runyon, for appellant Floyd Gonzalez, M.D." }, "file_name": "0149-01", "first_page_order": 179, "last_page_order": 186 }