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Branch v. Cox

United States District Court, E.D. Arkansas, Western Division

January 18, 2018

ELECTA BRANCH, as Administrator of the ESTATE OF WILLIE BRANCH, JR., Deceased PLAINTIFF
v.
MATTHEW D. COX, M.D. DEFENDANT

          OPINION AND ORDER

          J. LEON HOLMES UNITED STATES DISTRICT JUDGE

         On July 7, 2015, Willie Branch, Jr., died following complications from surgery. On July 5, 2017, acting on behalf of the Estate of Willie Branch, Jr., Electa Branch commenced this wrongful-death and survival negligence action against Matthew D. Cox. She alleged that Cox failed to provide competent medical care to Willie Branch both during and after the surgery. Cox moved for summary judgment, arguing that Electa Branch did not have standing to bring these claims and, as a consequence, Arkansas's two-year statute of limitations had run. That motion was granted. Electa Branch has now moved for reconsideration.

         Electa Branch was appointed administrator of the estate on September 25, 2015, by the Circuit Court of Mississippi County. On August 22, 2016, the circuit court entered an order approving final distribution of estate assets and discharging Electa Branch as administrator of the estate. Electa Branch filed the complaint in this suit on July 5, 2017. On October 31, 2017-after Cox moved for summary judgment in this case-Branch obtained an order from the circuit court reopening the estate ab initio, citing the potential survival and wrongful-death claims.

         Arkansas law sets a two-year statute of limitations on all medical-injury claims. Ark. Code Ann. § 16-114-203. If Electa Branch had standing to commence this action on July 5, 2017, then it was filed within the limitations period. If not, the claim is barred.

         Cox argued and still argues that Electa Branch did not have standing because she was not the administrator of the estate when the complaint was filed. When she responded to the motion for summary judgment, Electa Branch argued only that because the estate was reopened ab initio, it is as though it were never closed and as though she had never been discharged as the administrator. She did not address the issue of whether the probate court had jurisdiction to reopen the estate and reappoint her ab initio.

         In the Opinion and Order granting the defendant's motion for summary judgment, this Court relied upon Rule 60 of the Arkansas Rules of Civil Procedure, which sets a 90-day period for courts to modify or vacate a judgment or order of the court, holding that this 90-day period applies to probate proceedings, citing Bullock v. Barnes, 366 Ark. 444, 450, 236 S.W.3d 498, 502 (2006), and Prickett v. Hot Spring Cty. Med. Ctr., 2010 Ark.App. 282, 6, 373 S.W.3d 914, 918 (2010). Because the order reopening the estate was entered more than a year after the original order approving final distribution of estate assets and discharging Electa Branch as administrator, this Court held that the circuit court was without jurisdiction to enter the order reopening the estate. As a result, this Court held that Electa Branch did not have the standing to bring this action, and the complaint purportedly filed on behalf of the Estate of Willie Branch, Jr., was a nullity, citing Johnson v. Greene Acres Nursing Home Ass'n, 364 Ark. 306, 312, 219 S.W.3d 138, 142 (2005), and Williams v. Bradshaw, 459 F.3d 846, 849 (8th Cir. 2006).

         In her motion for reconsideration, Electa Branch has addressed the authority of the circuit court to reopen the probate proceedings. She argues that Bullock stands for the proposition that Ark. Code Ann. § 28-53-119 authorizes a circuit court to reopen a probate estate without regard to the time limitations in Arkansas Rule of Civil Procedure 60. The statute provides:

(a)(1) If, after an estate has been settled and the personal representative discharged, other property of the estate is discovered, or if it appears that any necessary act remains unperformed on the part of the personal representative, or for any other proper cause, the court, upon the petition of any person interested in the estate and without notice or upon such notice as it may direct, may order that the estate be reopened.
(2) It may reappoint the personal representative or appoint another personal representative to administer such property or perform such act as may be deemed necessary.
(b) Unless the court shall otherwise order, the provisions of the Probate Code as to an original administration shall apply to the proceedings had in the reopened administration so far as may be appropriate. However, no claim which is already barred can be asserted in the reopened administration.

         Ark. Code Ann. § 28-53-119. Electa Branch cites Moore v. First Presbyterian Church of Searcy, Ark., 2010 Ark.App. 269, an unpublished opinion from the Arkansas Court of Appeals, which interpreted Bullock as she does.

         Cox relies on Prickett, which, in contrast to Moore, cited Bullock for the proposition that the 90-day limitation period of Rule 60 applies for setting aside orders, decrees, and judgments issued by a probate court. It was decided by a different panel of the Arkansas Court of Appeals on the same day as Moore.[1] I n Prickett, however, the relationship between Rule 60 and section 28-53-119 was not addressed. There, based on a specific set of facts not present here, the circuit court presiding over the probate case ruled that the order by which the estate was closed was improper, which meant the estate had never been closed. No motion to reopen was ever filed, and section 28-53-119 was not addressed. The circuit court presiding over the tort case in Prickett held that the probate court was without jurisdiction to issue the order upon which the administrator relied, and the Arkansas Court of Appeals agreed. 2010 Ark.App. 282 at *5, 373 S.W.3d at 917. Although Prickett is similar to the instant case in that an administrator of an estate filed a complaint for wrongful death after an order closing the estate had been entered, procedurally it differs from the instant case because there no petition to reopen the estate under section 28-53-119 was filed. This Court erred in relying on Prickett as authority in this case.

         In Bullock a putative heir filed a motion to reopen the administration of a closed decedent's estate, citing Ark. Code Ann. § 28-53-119(a)(1). The administrator argued that Rule 60 barred that motion. Id. at 449, 236 S.W.3d at 502. Relying on the last sentence of section 28-53-119(b), he argued that the grounds for reopening the estate were time-barred under Rule 60. In the conclusion to its opinion, the supreme court held that the petition to reopen the estate “was time-barred under Rule 60 or Ark. Code Ann. § 28-53-119(b).” Bullock is not entirely clear as to the relationship between section 28-53-119 and Rule 60. The court in Bullock stated that the putative heir had failed to establish the grounds for reopening an estate under section 28-53-119, but the court made that statement within the context of its Rule 60 analysis. Nevertheless, Moore construed Bullock to hold ...


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