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Estate of Hernandez v. Clark6/23/2000
This is an appeal from the dismissal of a survival and wrongful-death action based upon the death of Mona Hernandez in an automobile accident on October 6, 1995, in Rogers, Arkansas. In March 1997, Mona's parents, Reynaldo Hernandez and Roselea Hernandez, filed this action against appellees Marty Clark, the other driver; Diamond Star Motors, Inc.; Chrysler Corp., Inc.; and Mitsubishi Motors Corp., a/k/a Mitsubishi Corp. The Hernandezes brought this action under the following names: "Estate of Mona L. Hernandez, Reynaldo Hernandez and Roselea Hernandez, Husband and Wife, as parents, next of kin, and next friend of Mona L. Hernandez." The Benton County Circuit Court dismissed the lawsuit with prejudice on the grounds that appellants lacked standing to sue because there was no appointed personal representative of Mona's estate when the complaint was filed, only two of her four heirs at law had joined as plaintiffs in the complaint, and the three-year statute of limitations had run. We affirm the circuit court's order of dismissal.
In July 2002, appellees moved to dismiss appellants' complaint with prejudice on the grounds that no personal representative had been appointed for Mona's estate; that the wrongful-death statute requires that all actions be brought by the personal representative or by all of the heirs at law of the deceased; that only two of Mona's four heirs at law were named plaintiffs; and that no valid complaint was filed within the applicable three-year statute of limitations. In support of their motion, appellees attached copies of the small-estate probate file opened for Mona by Reynaldo and appellants' answer to an interrogatory that identified Mona's heirs at law. Appellants' answer to the interrogatory listed Mona's parents and her two sisters, Angela Pantega and Jessica Jacobson. Angela and Jessica were not named as plaintiffs in this action. The petition for probate of small estate filed by Reynaldo with the Benton County Probate Court on October 9, 1996, nominated Reynaldo as the administrator of the estate; however, no personal representative was appointed. The affidavit signed by Reynaldo and attached to the petition stated: "No petition for the appointment of a personal representative is pending or has been granted."
In response to the motion to dismiss, appellants stated: "Reynaldo is the personal representative of the Estate of Mona Hernandez. Consequently, Arkansas Code Annotated ยง 16-62-102 is satisfied.... Reynaldo Hernandez has acted as the de facto personal representative of the Estate of Mona L. Hernandez since October 9, 1996." Appellants also asserted that Reynaldo's appointment was retroactive. As an attachment to their response, appellants filed copies of Reynaldo's July 25, 2002, appointment as the personal representative of Mona's estate and his letters of administration issued by the probate division of the Benton County Circuit Court.
On August 27, 2002, appellants filed an amended complaint that added Reynaldo, as the personal representative of Mona's estate, and added Angela and Jessica as plaintiffs. The amended complaint incorporated the claims in the original complaint and stated:
The Complaint is hereby amended to include Reynaldo Hernandez as the personal representative of the Estate of Mona L. Hernandez. He filed the lawsuit as the de facto personal representative of the Estate of Mona L. Hernandez. However, he has been officially appointed as personal representative of the Estate of Mona L. Hernandez, and he was and is also bringing the suit in his own name as in the original Complaint.
All appellees moved to strike the amended complaint. After a hearing, the trial court granted the motion to dism
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