concurring. I concur with the result reached in this case; however, I must write separately to address the majority’s analysis. This case highlights a continuing concern I have had regarding cases involving the Arkansas survival and wrongful-death statutes, respectively codified at Ark. Code Ann. §§ 16-62-101 and 16-62-102 (Supp. 2001), and it demonstrates exactly why the majority’s analysis is both untenable and contrary to Rules 15(c) and 17(a) of the Arkansas Rules of Civil Procedure.
The instant case concerns the issue of whether a party with standing to file a complaint in a wrongful-death suit can be substituted for the party that filed the original complaint. This issue was analyzed in a series of cases, the reasoning of which led to the majority opinion in the case at hand.
We first reviewed this issue in St. Paul Mercury Insurance Company v. Circuit Court of Craig County, Western Division, 348 Ark. 197, 73 S.W.3d 584 (2002). In St. Paul, a pro se complaint alleging medical malpractice was filed by the deceased’s parents and his other heirs-at-law with the exception of his daughter, who had been appointed as the special administrator of his estate. On February 26, 2001, the limitations period on any malpractice action expired. On April 24, 2001, the deceased’s parents were substituted for the daughter as special administrators, and on May 9, 2001, they filed an amended complaint as plaintiff special administrators. The second complaint was not filed within the two-year limitations period, and consequently could not be valid unless it “related back” to the original pro se complaint.
In the clear language of Ark. Code Ann. § 16-62-102(b) (Supp. 2001), “[e]very action shall be brought by and in the name of the personal representative of the deceased person,” and “[i]f there is no personal representative, then the action shall be brought by the heirs at law of the deceased person.” Therefore, the first complaint filed by the deceased’s parents and other heirs-at-law without the deceased’s daughter, who happened to also be the administrator of the deceased’s estate, was not permitted under the statute. The conclusion of the majority opinion in St. Paul was that the pro se complaint was a nullity because it was filed by a party that did not have the standing to file suit. Accordingly, there was no complaint to amend in May 2001. The majority determined that Ark. R. Civ. P. 15 was not applicable because there was no pleading to amend when the parents filed their amended complaint as administrators.
The majority in St. Paul also reasoned that the parents as individual heirs-at-law are entirely distinct legal persons from the parents in their later capacity as appointed administrators, and thus different parties. The amended complaint substituted all the original plaintiffs with entirely new plaintiffs. Therefore, it was not an amendment, but rather a new suit. The majority further reasoned that because the pro se complaint was not permitted under the survival statute, there was no complaint to amend. Moreover, the amended complaint was tantamount to the filing of a new lawsuit, which was barred by the statute of limitations.
In my concurrence in St. Paul, I expressed concern that the majority understated the effect of Rules 15(c) and 17(a) of the Arkansas Rules of Civil Procedure with respect to permitting the. substitution of a new plaintiff to relate back under circumstances not implicated in the case. I noted that the case cited by the majority, Floyd Plant Food. Co. v. Moore, 197 Ark. 259, 122 S.W.2d 463 (1938), was a pre-rule case for the proposition that where the amended complaint substituted out all the plaintiffs and put in their place entirely new plaintiffs, the amendment constituted a new suit that could not relate back to the original. Arkansas abandoned the framework of “new cause of action” when it adopted its current rules of civil procedure with respect to the relation back of certain types of amendments. The new rule permits the addition of claims and defenses arising out of the same transaction, and it also permits the substitution of parties so long as the amendment is related to the same transaction, service is perfected and there is no prejudice to the other party.
The commentary to the 1966 amendments to Fed. R. Civ. P. 15(c), which have been adopted by this court, state that the rule applies by analogy to plaintiffs in order to effectuate the policy of liberalized requirements of pleading by noting that the amendment of Rule 17(a) is also relevant. The commentary indicates that Rule 15(c) may operate to permit amendments changing plaintiffs to “relate back” and illustrates that intent by pointing to related provisions in revised Rule 17(a).
The interaction between Rule 15(c) and Rule 17(a) in the context of new plaintiffs has been addressed by the federal appellate courts. In Crowder v. Gordons Transports, Inc., 387 F.2d 413 (8th Cir. 1967), the appellate court stated that Rules 15(c) and 17(a) were designed for relation back “to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made.” Id. at 418 (citing 28 U.S.C.A. Rule 17, Cum. P.P. Notes p. 5). In Scheufler v. General Host Corp., 126 F.3d 1261 (10th Cir. 1997), the appellate court noted that the failure to name the real party in interest was not “some tactic designed to prejudice defendants, but instead was the result of a mistake as to the legal effectiveness of the documents allegedly assigning the tenants’ claims to their respective landlords.” Id. at 1270. These cases demonstrated that federal courts have looked to Rule 17(a)’s express provision for the substitution of the real party in interest and analogized that Rule 15(c) permits this kind of amendment to “relate back.” In my concurring opinion, I offered this detailed analysis of the interaction between Rule 15(c) and Rule 17(a) in an attempt to rein in the majority’s dicta concerning the substitution of a new plaintiff to “relate back” generally. Although I agreed with the result of the majority in St. Paul, I departed from their reasoning to point out that the mistake in bringing the action initially in the name of less than all of the heirs was neither “understandable” nor “excusable,” and it was for this reason that the amended complaint could not “relate back.”
This court faced a similar issue in Davenport v. Lee, 348 Ark. 148, 72 S.W.3d 85 (2002). In Davenport, the administrator of the deceased’s estate filed a pro se complaint for wrongful-death alleging negligence on the part of the doctors who cared for the deceased. 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 that professed to change the case styling to reflect the addition of another defendant was the first pleading signed by an attorney in the action.
The majority stated in Davenport that an administrator acts only as a “trustee of conduit,” Brewer v. Lacefield, 301 Ark. 358, 784 S.W.2d 156 (1999), and that proceeds from a wrongful-death action are for the sole benefit of the statutory beneficiaries which 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 v. Lacejield, supra. As a result, the majority reasoned that the appellants, as the administrators of the deceased’s estate, were acting on behalf of all the heirs-at-law when they filed this wrongful-death action. Since administrators or other fiduciaries cannot proceed pro se in their representative capacity, Ark. Bar Ass’n v. Union Nat’l Bank, 224 Ark. 48, 273 S.W.2d 408 (1954), the majority concluded that the appellants engaged in the unauthorized practice of law. The majority held that where a party not licensed to practice law in this state attempts to represent the interests of others by submitting himself or herself to jurisdiction of a court, those actions, such as the filing of pleadings, are rendered a nullity. Following this line of reasoning, Rules 15(c) and 17(a) did not apply, because the original complaint, as a nullity, never existed, and therefore an amended complaint could not relate back to something that never existed, nor could a nonexistent complaint be corrected.
I wrote a concurring opinion in Davenport, agreeing that the court’s regulatory duty under Amendment 28 to the Arkansas Constitution mandates our holding set forth in the majority opinion regarding the practice of law without a license. The filing of a pro se complaint on behalf of statutory beneficiaries constituted the unauthorized practice of law, and thus rendered the complaint a nullity. However, I wrote separately in order to repeat the same concerns I had in St. Paul. I reminded the majority that the federal appellate courts have construed Rules 15(c) and 17(a) of the Federal Rules of Civil Procedure to permit the “relation back” of amendments to pleadings adding entirely new plaintiffs under circumstances that do not evince a tactical or strategic decision, but rather, an understandable and excusable mistake. The Arkansas survival and wrongful-death statutes, respectively codified at Ark. Code Ann. §§ 16-62-101 and 16-62-102 (Supp. 2001), provide very clear and precise language delineating the proper party to bring suit. In Davenport, the attorney’s instruction to his clients to file pro se and his failure to sign the pleading could not be condoned as an understandable mistake. The appellants’ conduct in the Davenport case was in fact a deliberate and tactical choice.
The purpose of each of my concurrences in St. Paul and Davenport was to direct the court away from the complaint-as-a-nullity analysis. In my view, the result of a nullity is too extreme to be applied outside the limited scope of Davenport. Clearly, as I have pointed out in each concurring opinion, the federal courts have made detailed examinations regarding the application of Rules 15 (c) and 17 (a) and the interplay of these rules so as to allow for the substitution of plaintiffs if the mistake in bringing the action initially in the name of less than all of the heirs was understandable or excusable. The problem with the majority’s analysis in St. Paul and Davenport existed in the use of the “nullity” language when a complaint was drafted and filed by a party not permitted under the applicable survival and wrongful-death statutes. If any complaint asserting a statutory claim but filed by an inappropriate party constitutes a nullity, and consequently an amended complaint cannot relate back to the date of the filing of the original complaint, then the applicability of and interplay between Rules 15(c) and 17(a) has been effectively eviscerated.
This is exactly the direction the majority went in Brewer v. Poole, 362 Ark. 1, 207 S.W.3d 458 (2005). In Brewer, the deceased’s husband, children, and parents filed suit alleging wrongful death due to medical malpractice in December 1997. On March 25, 2002, the plaintiffs filed a third amended complaint, adding the deceased’s sisters. The court determined that the sisters were necessary parties to the action and that the original complaint in the case failed to include all the heirs-at-law as parties to the suit. The majority therefore reasoned that the original complaint was a nullity. Thus, Rules 15(c) and 17(a) were not applicable because the original complaint never existed. Due to the nullity, there was no pleading to amend and nothing to “relate back.”
In my concurrence to Brewer, I departed from the majority to write that
the interaction between Rule 15(c), which allows an amended pleading to relate back ‘if the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading,’ and Rule 17(a), which states that the substitution of a real party in interest ‘shall have the same effect as if the action had been commenced in thé name of the real party in interest,’ allows an amended complaint that substitutes new plaintiffs to relate back to the date of the original complaint when there has been an understandable mistake. Instead, the majority’s reasoning in this case, that the original complaint filed by less than all the statutory beneficiaries is a nullity and thus the amended complaint cannot ‘relate back’ to the date of filing of the original complaint, effectively eviscerates the applicability of Rule 15(c) in any case arising out of a statutory claim. In my view, a better analysis is that the plaintiffs could not amend to add new plaintiffs because, in this case, where we have consistently interpreted the statute to require the joinder of all the statutory beneficiaries, the failure to include the sisters was not an understandable mistake.
Brewer v. Poole, supra (citations omitted). The majority opinion was a broader application of the nullity concept than what was at issue in Davenport, where this court held that a wrongful-death claim filed pro se constituted the unauthorized practice of law, and thus the complaint was a nullity. Although I agreed with the limited Davenport application, I could not agree that any case where a statutory claim is filed by an inappropriate party constitutes a nullity. As already expressed, my concern was in preserving the viability of Rules 15(c) and 17(a). When the majority suggested that any case where a statutory claim is filed by an inappropriate party constitutes a nullity, the purpose behind the interplay of Rules 15 and 17 was effectively gutted. Moreover, by adopting the “nullity” analysis and eviscerating the applicability of Rules 15(c) and 17(a), the majority has created the logical quandary at issue here.
Unlike St. Paul, Davenport, and Brewer, there is no statute-of-limitations issue in the instant case. The majority rightly points out that Ms. Hackleton did not have standing to sue when she filed the original complaint and that when she was appointed as the administrator of Mrs. Ray’s estate she became a new party when she filed the amended complaint. Because there is no statute-of-limitations issue to be resolved, there is no need to “relate back” to the original complaint. Thus, the issue is whether Ms. Hackleton can incorporate by reference the contents of her initial complaint under Rule 10(c) of the Arkansas Rules of Civil Procedure, even though, according to Brewer, the original complaint was a nullity.
The majority concludes that Ms. Hackleton is able to incorporate by reference the allegations made in the original complaint. The majority writes, “[t]his is categorically different from an attempt to amend an original complaint with a new party plaintiff and have that amendment relate back to the original complaint under Rule 15(c) after the statute of limitations period has passed.” Yet, the majority opinion does not explain how a nullity, which by definition never existed, could exist for incorporation by reference. According to the American Heritage Dictionary, to “incorporate” is to unite one thing with something else already in existence. The only reason put forth by the majority to explain how a nullity can be incorporated by reference is that it can be done as long as the statute of limitations has not expired. Yet, no explanation is given as to why or how the statute of limitations affects the existence of the original complaint.
The majority’s flawed analysis is revealed by its attempt to transform the meaning of “incorporation” and “nullity” in order to accomplish the desired result. The point I wish to make is simple. It is impossible to incorporate something from nothing; that is, if the first complaint was a nullity, then in the eyes of the law it never existed. Its contents amount to nothing. The majority essentially wants to incorporate nothing into the amended complaint. In order to get something from nothing and to somehow make this logical fallacy work, the majority has determined that the amended complaint is simply a new complaint, following the analysis of St. Paul and the pre-rule Floyd Plant Food Co. v. Moore, 197 Ark. 259, 122 S.W.2d 463 (1938). Yet, as was central to my concurring opinion in St. Paul, Rule 15 allows for the addition of claims and defenses arising out of the same transaction, and it also permits the substitution of parties so long as the amendment is related to the same transaction, service is perfected and there is no prejudice to the other party. Putting that matter aside, the existence of the new complaint is dependent on incorporating by reference the contents of the initial complaint. However, according to our precedent, the original complaint as a nullity never existed. Thus, if an amended complaint cannot “relate back” to something that never existed, and a nonexistent complaint cannot be corrected, the question of how something that never existed can be incorporated into a new complaint has yet to be answered. Again, no reason is proffered by the majority to explain how this is possible.
The majority must fit the law into a box created by the “nullity” analysis that eventually resulted in the Brewer holding. In order to preserve that holding and at the same time allow for the “incorporation” of something from nothing, the meaning and significance of a nullity has been changed. In essence, the extreme result caused by the “nullity” analysis when a statutory claim is filed by an inappropriate party can only be avoided by a redefinition of firm legal terms.
If the applicability of Rule 17(a) had not been eviscerated in favor of the “nullity” analysis, the resolution of this case would have been simple. Under the plain language of Rule 17(a), the amended complaint incorporated the original complaint and substituted the real party in interest, Ms. Hackleton as Administrator of the Estate, such that the “substitution [had] the same effect as if the action had been commenced in the name of the real party in interest.” Ark. R. Civ. P. 17(a) (2005).
Glaze, J., joins this concurrence.