FROM THE OUACHITA COUNTY CIRCUIT COURT [NO. 52CV-17-133]
HONORABLE ROBIN CARROLL, JUDGE.
B. Bennett, for appellant.
Law Firm, PLLC, by: William H. Edwards, Jr., for appellee.
F. VIRDEN, JUDGE.
Bambico appeals the Ouachita County Circuit Court's
decision to grant summary judgment and dismiss her complaint.
While the appeal was pending, Ouachita Industries, Inc.
("Ouachita"), filed a motion to strike
Bambico's brief or dismiss the appeal. We affirm the
circuit court's decision, and we deny Ouachita's
motion to strike or dismiss.
1, 2014, Mary Henderson was injured on Ouachita's
business premises. Henderson died on September 28, 2015. On
November 13, 2015, Henderson's estate was briefly opened
to divide her property among her heirs. It was noted in the
affidavit for collection of small estate that no personal
representative of the decedent's estate had been
appointed. The estate was closed.
28, 2017, the circuit court entered an order opening the
estate and appointing Denise Bambico as the administratrix.
On June 29, 2017, a complaint was filed in the circuit court
against Ouachita for compensatory damages for physical
injuries, disability, pain and suffering, and mental anguish
as well as for punitive damages. The caption of the case
designates "The Estate of Mary Henderson" as the
plaintiff, and the second paragraph of the body of the
complaint sets forth that "Plaintiff is the personal
representative of the Estate of Mary Henderson[.]" The
circuit court order from the day before declaring Bambico the
administrator of the estate was not attached to the
October 6, 2017, Ouachita responded that the complaint should
be dismissed because no facts were alleged to support the
claim. Ouachita also asserted that the estate lacked standing
to bring the suit because the estate had been closed on
November 13, 2015, and no personal representative of the
estate had been appointed. Ouachita contended that, due to
the lack of an effective estate and the failure to appoint a
personal representative with standing to file a survivor
action, the complaint was a nullity. Ouachita filed a motion
for summary judgment on October 13, 2017, based on its
contention that the complaint was a nullity, and Ouachita
also argued that the statute of limitations barred any
plaintiff from filing a complaint.
response to the motion for summary judgment was filed, and
again the caption of the case named "The Estate of Mary
Henderson" as the plaintiff; however, this time the
first paragraph set forth the estate-rather than the personal
representative as before-as the plaintiff. The circuit
court's June 28 order opening the estate and appointing
Denise Bambico as the administratrix was attached to the
responded that the complaint had not been brought in the name
of the administrator and that because Arkansas Code Annotated
section 16-62-101 (Repl. 2005) dictates that the personal
representative of the estate is the proper party to bring a
survival action, the complaint was a nullity.
November 29, 2017, an amended complaint was filed. Again, the
style of the case named the "Estate of Mary
Henderson" as the plaintiff, and this time the first
paragraph of the complaint read "COMES NOW, Plaintiff,
Estate of Mary Henderson, by her personal representative,
Administratrix, Denise Bambico[.]"
circuit court awarded summary judgment based on the survival
statute, Arkansas Code Annotated section 16-62-101, which
sets forth that only an administrator or an executor may
bring a survival action. The circuit court found that the
complaint was not filed in the name of the personal
representative of the estate, and the estate did not have
standing to file. The circuit court further found that the
statute of limitations had expired, and any substitution of
parties was barred.
timely notice of appeal was filed. The caption of the notice
reads "Estate of Mary Henderson," and in the body
of the notice, Bambico states that she is filing the notice
of appeal as the administrator of the estate. On May 31,
2018, Ouachita filed a motion to strike Bambico's brief
pursuant to Rule 11 of the Arkansas Rules of Appellate
Procedure-Civil, which imposes sanctions for taking or
continuing frivolous appeals. Ouachita asserts that Bambico
"had no reasonable basis for believing that the Arkansas
appellate courts might permit a previously-unnamed party,
Denise Bambico, to file an appeal." Ouachita also argued
that there was nothing in the record to authorize an
amendment to the parties in the case; thus, Bambico's
brief should be struck, or the appeal dismissed.
appeal, Bambico asserts that the circuit court erred in
granting summary judgment. She contends that her name was
inadvertently left off the original complaint, and the
amended complaint corrected this oversight; thus, under
Arkansas Rules of Civil Procedure 15(c) and 17(a), the
amended complaint relates back to the original filing. The
issue Bambico presents for review has not been preserved
because she failed to raise the issue of relation back to the
circuit court or to obtain a ruling on the matter. It is well