Henson v. Cradduck

Cite as 2017 Ark. 317
SUPREME COURT OF ARKANSAS
No. CV-16-1080

Opinion Delivered: November 16, 2017
GERALDINE HENSON, AS
PERSONAL REPRESENTATIVE OF APPEAL FROM THE BENTON
THE ESTATE OF DAVID HENSON, COUNTY CIRCUIT COURT
DECEASED [NO. 04CV-15-1506-1]
APPELLANT
HONORABLE MACKIE M.
V. PIERCE, JUDGE

KELLEY CRADDUCK, IN HIS
OFFICIAL CAPACITY; KEITH
FERGUSON, INDIVIDUALLY; JEFF
ROBINS, INDIVIDUALLY AND IN
HIS OFFICIAL CAPACITY; JEREMY
GUYLL; OLIN RANKIN; JANNA
HULET; MICHELE WILLS; WARREN
LAFFERTY; ASSOCIATION OF
ARKANSAS COUNTIES; AND JOHN APPEAL DISMISSED
OR JANE DOES 8-25 WITHOUT PREJUDICE.
APPELLEES

RHONDA K. WOOD, Associate Justice

Geraldine Henson appeals the circuit court’s order dismissing her case with prejudice

based on the statute of limitations. We cannot reach the merits of the appeal for lack of a

final, appealable order. We must, therefore, dismiss the appeal.

On October 5, 2015, Henson filed her original complaint that alleged her husband,

David Henson, died while a prisoner in the custody of the Benton County jail and under

the supervision of the Benton County Sheriff’s Office. She subsequently filed four amended

complaints. The defendants differ in each complaint, and the amended complaints are
internally inconsistent.1 The defendants listed in the case caption, the introductory paragraph

of the complaints, and those accused of specific acts within the complaints differ. The

amended complaints do not state that they are incorporating the earlier complaints.

For example, the original complaint names the following defendants: Benton County

Jail, Benton County Sheriff’s Office, Kelley Cradduck, John Doe #1, John Doe #2, and

John Doe #3. The first amended complaint’s case caption lists Cradduck, four named

defendants (Jeff Robins, Jeremy Guyll, Olin Rankin, and Janna LNU) and John or Jane

Does 1–25. The Benton County Jail and the Benton County Sheriff’s Office are not listed,

although both had answered the original complaint. The body of the first amended

complaint also lists Benton County, Arkansas, as a defendant, but it is not included in the

case caption. Henson later filed a second amended complaint. The defendants identified in

its caption and body mirrored the first amended complaint.

Next, Henson filed a third amended complaint. The case caption lists Cradduck,

Robins, Guyll, Rankin, and Hulet (last name for Janna LNU as identified in the prior

complaint) in addition to Keith Ferguson, Michele Wills, and Warren Lafferty. She also

named as defendants John or Jane Does 8–25.2 The body of the complaint, however, does

not list Cradduck as a defendant but again includes Benton County, Arkansas. In addition,

she “name[d] and substitute[d]” Robins, Guyll, Rankin, Hulet, Ferguson, Wills, and

1
The pleadings and motions spell several of the defendants’ names inconsistently.
For example, Jeff “Robins” is also spelled Jeff “Robbins;” “Michele” Wills is also spelled
“Michelle” Wills; Janna “Hulet” is also spelled Janna “Hulett;” and “Kelley” Cradduck is
also spelled “Kelly” Cradduck. For consistency, we use the spelling contained in the first
pleading identifying the party.
2
The John and Jane Does numerical assignments also change in each amended
complaint.
2
Lafferty for “John Doe” defendants 1–7. The caption of Henson’s fourth amended

complaint mirrors the third amended complaint’s list of defendants with the exception of

adding the Association of Arkansas Counties (AAC) as a defendant.

Several motions to dismiss were filed, including two motions to dismiss the fourth

amended complaint. Defendants argued that the statute of limitations warranted dismissal

of Henson’s claims, that Henson had failed to state a claim against any defendant, and that

they were immune to tort and vicarious liability. Following a hearing, the circuit court

entered an order granting the motion to dismiss with prejudice because Henson’s complaints

were time-barred. The order Henson appeals reads as follows:

IN THE CIRCUIT COURT OF BENTON COUNTY, ARKANSAS
CIVIL DIVISION
GERALDINE HENSON

VS.

BENTON COUNTY JAIL;
BENTON COUNTY SHERIFF’S OFFICE;
KELLY CRADDUCK; JOHN DOE #1;
JOHN DOE #2; and JOHN DOE #3

CASE NO. CV15-1506-5

ORDER

The Plaintiff filed her Fourth Amended Complaint in this action on May 9,
2016. The Defendant filed a motion to dismiss, to which the Plaintiff responded.
After a hearing on the motion, and for the reasons set forth in the motion and at the
hearing, which the Court finds to be well-founded, the Court finds and holds that
Plaintiff’s claims are time-barred by the applicable statutes of limitations.
For the foregoing reasons, and for good cause shown, the Court hereby finds
and Orders that the Defendant’s motion to dismiss should be, and hereby is,
GRANTED, and that this case is DISMISSED WITH PREJUDICE.

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 Before addressing the merits of Henson’s claim on appeal, we must first analyze

whether Henson appeals from a final order. Rule 2(a)(1) of the Arkansas Rules of Appellate

Procedure–Civil provides that an appeal may be taken only from a final judgment or decree

entered by the circuit court. An order is not final if it adjudicates fewer than all the claims

or the rights and liabilities of fewer than all the parties, unless the circuit court enters a Rule

54(b) certification. Ark. R. App. P.–Civ. 2(a); McKinney v. Bishop, 369 Ark. 191, 252

S.W.3d 123 (2007). We may raise the issue of whether an order is final and subject to

appeal sua sponte. Id.

In the instant case, the order is not final as to all parties. Even more problematic is

the uncertainty as to which defendants were actually dismissed. The order’s caption is

identical to the caption of the original complaint. It includes three named defendants—

Benton County Jail, Benton County Sheriff’s Office, and Kelley Cradduck—and three John

Does. However, the body of the order references only the fourth amended complaint,

which identifies different defendants. Additionally, the court granted “the defendant’s

motion to dismiss.” We do not know which motion to dismiss. The defendants who filed

the first motion to dismiss the fourth amended complaint were Cradduck, Robins, Guyll,

Rankin, Lafferty, Wills, and Benton County. However, the defendants who filed the second

motion to dismiss the fourth amended complaint were Cradduck, Ferguson, Robins, Guyll,

Rankin, Lafferty, Wills, Hulet and Benton County.

Therefore, we cannot determine whether the circuit court dismissed the defendants

identified in the caption, the defendants identified in the fourth amended complaint, the

defendants who filed the first motion to dismiss the fourth amended complaint, or the

4
defendants who filed the second motion to dismiss the fourth amended complaint. We

refuse to speculate as to this ambiguous order’s meaning.3 None of the before-listed options

include all the defendants, which results in a lack of finality.

The dissent sua sponte challenges Henson filing a pro se complaint for wrongful death

because the circuit court lacked subject-matter jurisdiction. However, the dissent puts the

cart before the horse. We have repeatedly held that we cannot decide whether the circuit

court lacked jurisdiction without a final order. See, e.g., Tucker v. Lake View Sch. Dist. No.

25 of Phillips Cty., 323 Ark. 693, 697, 917 S.W.2d 530, 533 (1996) (“Because we dismiss

this appeal for lack of a final order, we need not reach the issues of whether the chancellor

had jurisdiction to hear the case . . .”); String v. Kazi, 312 Ark. 6, 6, 846 S.W.2d 649, 649

(1993) (“We have frequently held that we will not decide the merits of an appeal when the

order appealed from is not a final order.”); Schueck Steel, Inc. v. McCarthy Bros. Co., 289 Ark.

436, 436–37, 711 S.W.2d 820, 821 (1986) (“We have frequently held that we will not

decide the merits on an appeal when the order appealed is not a final one.”); McIlroy Bank

& Trust v. Zuber, 275 Ark. 345, 346, 629 S.W.2d 304, 304 (1982) (“We do not reach the

merits of this appeal as the order appealed from is not final and therefore, not appealable.”);

see also Hambay v. Williams, 335 Ark. 352, 356, 980 S.W.2d 263, 265 (1998) (concluding

that we could not determine whether the lower court lacked subject-matter jurisdiction,

3
In their brief on appeal, appellees assert that the appellant “abandoned” her claims
against Benton County Jail and Benton County Sheriff’s Office. However, a plaintiff cannot
“abandon” a defendant that has been named and served. Ford Motor Co. v. Washington, 2012
Ark. 354 (2012). A defendant remains until the circuit court enters an order dismissing it.
Id. (“[Arkansas Rule of Appellate Procedure—Civil 3] requires appellants and cross-
appellants to abandon pending and unresolved claims, but it does not permit appellants and
cross-appellants to dispose of parties in the same fashion.”)
5
and then address the merits, because the order from which appellant appealed was not final).

We cannot conclude that the circuit court lacked subject-matter jurisdiction when we lack

appellate jurisdiction.

Nevertheless, subject-matter jurisdiction is not at issue in this case. The dissent

summarily concludes that Henson filed the complaint on behalf of David’s estate as a

personal representative. However, the complaint does not appear to bring the action in the

name of the estate. Rather, the original complaint’s caption reads simply “Geraldine

Henson,” suggesting she filed the original action on her own behalf as an heir. This may

be a potential standing issue, but not one of subject-matter jurisdiction. See Rhuland v. Fahr,

356 Ark. 382, 155 S.W.3d 2 (2004) (affirming circuit court’s dismissal of a complaint because

daughter lacked standing to bring wrongful death suit in her capacity as an heir). As the

lack of standing does not deprive us of subject-matter jurisdiction, we cannot raise it on our

own. Chubb Lloyds Ins. Co. v. Miller County Circuit Court, 2010 Ark. 119, 361 S.W.3d 809.

Standing was not considered by the circuit court, and we cannot address it now. See Hunter

v. Runyan, 2011 Ark. 43, 382 S.W.3d 643 (“Arguments not raised below, even

constitutional ones, are waived on appeal.”).

For these reasons, we find that the order from which the appellant appealed is not a

final, appealable order because there are still claims pending against some defendants.

Accordingly, we dismiss this appeal without prejudice so that the circuit court may enter a

final order.

Appeal dismissed without prejudice.

BAKER, GOODSON, and HART, JJ., dissent.

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 KAREN R. BAKER, JUSTICE, dissenting. I must dissent from the majority’s opinion

because I cannot agree with either the majority’s analysis or its conclusion to dismiss this

appeal without prejudice for lack of a final appealable order. The court need not reach the

issue of whether the order is final under Rule 54. Instead, I would affirm the circuit court

because a nonlawyer personal representative is not authorized to file a pro se complaint in a

wrongful-death action, the circuit court did not have jurisdiction and Ark. Code Ann. §

16-62-102 correctly dismissed this action with prejudice. Although not raised by the parties,

“we must raise issues of subject-matter jurisdiction even when such questions are not raised

below.” Koonce v. Mitchell, 341 Ark. 716, 718, 19 S.W.3d 603, 605 (2000) (internal citations

omitted). The majority states that the dissent “summarily concludes that Henson filed the

complaint on behalf of David’s estate as a personal representative, which it claims raises an

issue of subject matter jurisdiction. But the complaint does not appear to bring the action in

the name of the estate. Rather, the original complaint’s caption reads simply ‘Geraldine

Henson,’ suggesting she filed the original action on her own behalf as an heir. This may be

a potential standing issue, but not one of subject matter jurisdiction. See Rhuland v. Fahr, 356

Ark. 382, 155 S.W.3d 2 (2004) (affirming circuit court’s dismissal of complaint because

daughter lacked standing to bring wrongful death suit in her capacity as an heir).” However,

this position is misplaced. The complaint unequivocally states “Complaint in Wrongful

Death” and that Henson is the surviving spouse and “has been appointed as administratrix of

the estate.” The record demonstrates that Henson was appointed administratrix on August 14,

2014. Further, the wrongful death statute under which Henson is suing specifically requires

7
that “every action shall be brought by and in the name of the personal representative of the

deceased person. If there is no personal representative, then the action shall be brought by the

heirs at law of the deceased person.” Ark. Code Ann. § 16-62-102; Brewer v. Poole, 362 Ark.

1, 207 S.W.3d 458 (2005) (holding that “heirs at law” were those beneficiaries entitled to

recovery under the wrongful death statute. Where there is no personal representative to bring

a wrongful-death action, all statutory beneficiaries must be joined as plaintiffs to the action.).

Here, Henson specifically pleaded that she had been appointed the administratrix of the estate,

thus she was required to bring her wrongful death action in the name of the personal

representative of the estate. Therefore, based on the record and the complaint, and giving

effect to the substance of the pleading rather than the form, Henson sued as the administratrix

of the estate. See Fort Smith Symphony Orchestra, Inc. v. Fort Smith Symphony Association, Inc.,

285 Ark. 284, 686 S.W.2d 418 (1985), (“Pleadings shall be liberally construed so that effect

is given Courts should not be guided blindly by titles but should look to the substance of

motions to ascertain what they seek. It would not be in the interest of justice and fair play to

be blindly guided by the title of a motion or pleading. We continue to abide by the

well-established rule that a pleading will not be judged entirely by what it is labeled but also

by what it contains.”) Finally, even assuming the majority is correct in its assessment that

Henson intended to sue on her own behalf as heir, she could not, because the wrongful death

statute requires every action be brought by the personal representative of the estate. Only if

there is no personal representative can a wrongful death action be maintained by the heirs at

law. In sum, whether Henson intended to sue as an administratrix or a statutory beneficiary,

the complaint must be dismissed with prejudice.

8
 In Davenport v. Lee, 348 Ark. 148, 72 S.W.3d 85 (2002), we addressed the issue of two

nonlawyer administrators of an estate filing a pro se complaint on behalf of an estate in a

wrongful-death action. The statute of limitations expired on February 11, 1999. On May 28,

1999, the administrator’s attorney filed an entry of appearance, as well as a pleading entitled

“Addendum to Complaint.” The addendum claimed to change the style of the case to reflect

the addition of another defendant and was the first pleading signed by an attorney in the

action. Thereafter, the circuit court dismissed the complaint with prejudice after determining

that the nonlawyer administrators could not have filed a valid complaint. The administrators

appealed and we held that the administrators were not authorized to file the complaint,

affirmed the circuit court, and held that the administrators’ pro se complaint was the “fruit of

the unauthorized practice of law and thus a legal nullity.” We explained as follows:

An administrator acting on behalf of an estate does so in a fiduciary capacity.
Arkansas Bar Ass’n v. Union Nat’l Bank, 224 Ark. 48, 273 S.W.2d 408 (1954). At issue
in that case was whether a bank acting as the personal representative of an estate had
engaged in the unauthorized practice of law. This court concluded that “a person who
is not a licensed attorney and who is acting as an administrator, executor or guardian
cannot practice law in matters relating to his trusteeship on the theory that he is
practicing for himself.” Id. at 51–52, 273 S.W.2d at 410. In reaching this conclusion,
the court noted that a trustee or personal representative is not acting for himself and
in connection with his own affairs, but to the contrary is acting for others who would
ordinarily be the beneficiaries.

This court further discussed the nature of the administrator’s role in Brewer v.
Lacefield, 301 Ark. 358, 784 S.W.2d 156 (1990), and stated that an administrator acts
only as a “trustee of conduit.” Id. at 362, 784 S.W.2d at 158 (citing Dukes v. Dukes,
233 Ark. 850, 853, 349 S.W.2d 339, 341 (1961); Ark. Code Ann. § 16–62–102(f)
(1987)). This court further explained that proceeds from a wrongful-death action are
for the sole benefit of the statutory beneficiaries and are held in trust by the
administrator “for the benefit of the widow and next of kin.” Douglas v. Holbert, 335
Ark. 305, 314, 983 S.W.2d 392, 396 (1998); see also Brewer, 301 Ark. 358, 784 S.W.2d
156. Thus, Appellants as the administrators of Moore’s estate were acting on behalf of
all the heirs at law when they filed this wrongful-death action.

9
Davenport, 348 Ark. at 158–59, 72 S.W.3d at 90–91; see also Jones ex rel. Jones v. Corr. Med.

Servs., Inc., 401 F.3d 950, 952 (8th Cir. 2005) (The Eighth Circuit Court of Appeals affirmed

the federal district court ’s dismissal of an action filed by a nonlawyer administrator of an estate

on behalf of a prisoner who had died while incarcerated. “The district court dismissed,

applying Arkansas law on survival actions, which prohibits ‘a person who is not a licensed

attorney and who is acting as an administrator, executor or guardian [from] practic[ing] law

in matters relating to his trusteeship on the theory that he is practicing for himself.” Davenport

v. Lee, 348 Ark. 148, 72 S.W.3d 85, 90 (2002), quoting Arkansas Bar Ass’n v. Union Nat’l

Bank of Little Rock, 224 Ark. 48, 273 S.W.2d 408, 410 (1954). . . . Although not bound by

Arkansas law on the procedural question of amendability, this court adopts the reasoning in

Davenport. Adrian Jones committed the unauthorized practice of law. Because ‘[p]rofessional

competence and professional responsibility are the sine qua non of federal litigation and

effective judicial response,’ the defect cannot be amended.”); Chase v. City of Earle, No.

3:09CV00167, 2010 WL 1658610, at *2 (E.D. Ark. Apr. 21, 2010) (The federal district court

dismissed an action filed by a nonlawyer administrator on an estate on behalf of a prisoner that

died while incarcerated and held “[i]t is also important to note that plaintiff filed this action

pro se. Individuals who are not licensed attorneys can appear in the courts and engage in the

practice of law provided that they do so for themselves and in connection with their own

business. Stewart v. Hall, 129 S.W.2d 238 (Ark.1939). When a non-lawyer attempts to

represent the interests of other persons, the practice constitutes the unauthorized practice of

law and results in a nullity. Jones, 401 F.3d at 952 (8th Cir. 2005). Moreover, a later appointed

attorney cannot cure the complaint of its original defect. Davenport v. Lee, 348 Ark. 148, 155,

10
72 S.W.3d 85, 88 (2002). This rule protects the courts interests in ensuring that parties are

represented by people knowledgeable and trained in the law. Jones, 401 F.3d at 952.”)).

Further, the issue of what constitutes the unauthorized practice of law was thoroughly

discussed by this court in Arkansas Bar Ass’n, 224 Ark. 48, 273 S.W.2d 408. We stated:

It has been said in many opinions that it is not possible to give a definition of what
constitutes practicing law that is satisfactory and all inclusive, and we make no such
attempt. We do hold however that when one appears before a court of record for the
purpose of transacting business with the court in connection with any pending
litigation or when any person seeks to invoke the processes of the court in any matter
pending before it, that person is engaging in the practice of law. To us this conclusion
is obvious. Courts are constituted for the purpose of interpreting and administering the
laws passed by the law making body and the rules announced by the judiciary, and
they must necessarily be governed in their operation by rules of procedure. Attorneys
are officers of the court and are able by special training and practice to know the law
and rules of procedure, and are thereby in position to render a service to the court.
Therefore anyone who assumes the role of assisting the court in its process or invokes
the use of its mechanism is considered to be engaged in the practice of law.

Id. at 53, 273 S.W.2d at 411.

With these standards in mind, and reviewing Henson’s filings, it is clear that Henson

invoked the processes of the court when she filed her complaint. Based on the law discussed

above, Henson’s actions constituted an unauthorized practice of law, and her original

complaint is therefore a nullity. Although the majority states that I have “put the cart before

the horse,” this is simply inaccurate. The majority need not reach the finality of the order

because the complaint is a nullity, void and of no effect and the circuit court’s order therefore

properly dismissed the matter. Therefore, it is not necessary to reach the majority’s finality

analysis because a valid complaint was not filed within the statute of limitations. See Preston

v. Univ. of Ark. for Med. Sciences, 354 Ark. 666, 128 S.W.3d 430 (2003) citing Davenport, supra

(The dismissal was properly entered with prejudice because the Prestons’s complaint was a

11
nullity, and by the time it was dismissed, the statute of limitations on the medical malpractice

had run, precluding the filing of a new complaint.)

Finally, I must note that despite the circuit court’s flawed reasoning, the circuit court

reached the correct result. The issue presented seeks a determination of the correct statute

of limitations—two years or three years. The record demonstrates that David Henson died

on October 7, 2012; therefore, the statute of limitations ran either on October 7, 2014, or on

October 7, 2015. However, whether the statute of limitations was two years or three years

is not important, because under either scenario Henson’s complaint was not timely filed. On

October 5, 2015, Henson filed her pro se complaint on behalf of the estate. On November

16, 2015, on behalf of Henson, Henson’s lawyer filed an amended complaint. However,

because Henson’s original complaint must be treated as a nullity, her amended complaint was

not timely; therefore, the circuit court lacked jurisdiction. Simply put, the filing of a pro se

complaint constituted the unauthorized practice of law; thus, rendered the complaint a nullity.

Additionally, as discussed above, even if Henson were able to file the complaint as a statutory

beneficiary as the majority suggests, all statutory beneficiaries must be joined as plaintiffs to

the action, or the complaint is also a nullity, and Henson did not comply with this mandatory

requirement.1 Therefore, because no valid complaint was filed prior to the expiration of the

1
Here, if Henson had filed suit as a statutory beneficiary pursuant to Ark. Code Ann.
§ 16-62-102 (b), Henson was required to join the statutory beneficiaries because “every action
shall be brought by and in the name of the personal representative of the deceased person. If
there is no personal representative, then the action shall be brought by the heirs at law of the
deceased person.” The requirement that a wrongful-death suit must join all of the statutory
beneficiaries as parties is a mandatory requirement. In Ramirez v. White Cty. Circuit Court,
343 Ark. 372, 381, 38 S.W.3d 298, 303 (2001) we explained, “the language of Ark. Code
Ann. § 16–62–102(b) is clear and unambiguous. If there is no personal representative of the
deceased person, then the action shall be brought by all the heirs at law of the deceased. . . .

12
two-year or three-year limitations period, Henson was time-barred from bringing suit against

Cradduck. In sum, a nonexistent complaint cannot be corrected or salvaged, the circuit court

did not have jurisdiction, and therefore, it correctly dismissed the complaint with prejudice.

See Hackelton v. Malloy, 364 Ark. 469, 474, 221 S.W.3d 353, 357 (2006).

Therefore, as discussed above, because the circuit court reached the right result albeit

for the wrong reason, I would affirm the circuit court’s dismissal with prejudice.

GOODSON and HART, JJ., join in this opinion.

Morris W. Thompson Law Firm, P.A., by: Morris W. Thompson; and Brett D. Watson,

Attorney at Law, PLLC, by: Brett D. Watson, for appellant.

Rainwater, Holt & Sexton, by: Jason E. Owens, for appellees.

The Wrongful Death Statute, Ark. Code Ann. § 16–62–102(b), requires the action be
brought by all of the heirs at law.” “This rule dates back to this court’s decision in McBride
v. Berman, 79 Ark. 62, 94 S.W. 913 (1906). There, the court stated, ‘[t]hat in default of a
personal representative an action brought under Lord Campbell’s Act must make the widow
(if there be one) and the heirs at law parties thereto.’ Id. at 65, 94 S.W. at 914.” Davenport,
348 Ark. at 160, 72 S.W.3d 85 at 91.

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