im Hannah, Chief Jdecision reached by the court
concurring. I concur in the decision reached by the court in this case; however, I write separately because the analysis on the issue of when a personal representative or administrator is first empowered to act is incorrect. Even before Act 438 of2007 was passed, personal representatives and administrators acted and were generally permitted by the circuit courts to act after appointment but before the letters issued. Contrary to the majority opinion, the case law on this issue was not clear and was not well developed.
It is not well-settled law that letters of administration are necessary to vest authority to sue or be sued. The language quoted by the majority from Jenkins v. Means, 242 Ark. 111, 114, 411 S.W.2d 885, 887-88 (1967), that “[njothing can be read into either Ark. Stat. Ann. § 62-2102(b), supra, or Ark. Stat. Ann. § 62-2104 (Supp. 1965)[1] which would authorize a personal representative to sue or be sued until such time as he has received letters of administration,” is obiter dictum. It is also a misstatement of the law. The issue in Jenkins was “whether a cause of action can properly be commenced against a decedent’s estate before there has been an appointment of a personal representative.” Jenkins, 242 Ark. at 111, 411 S.W.2d at 886 (emphasis added). Issuance ofletters of administration simply was not at issue. In Jenkins, this court held that the purported personal representative could not be served with process because she had not yet filed her petition for appointment.
There was no need in Jenkins, supra, to discuss the effect of issuance ofletters of administration. Jenkins argued that an administrator obtains authority upon filing a petition to be appointed. Therefore, this court’s statement in Jenkins in response to the argument that the filing of a petition for appointment by Gatlin gave her authority to act was superfluous to the issue presented in the case. Any discussion or comment not necessary to the decision reached in a case is obiter dictum. Byme, Inc. v. Ivy, 367 Ark. 451, 870 S.W.2d 212 (2006). This court is not bound by obiter dictum even if it is couched in terms that imply the court reached a conclusion on the matter. Id. Further, where a court’s findings are obiter dictum a lower court is not bound by them. See, e.g., Ward v. Williams, 354 Ark. 168, 177, 118 S.W.3d 513, 518 (2003) (“There is no doubt in our minds that these ‘findings’ by the Court of Appeals are obiter dictum and were not binding on the circuit court.”).
Additionally, the majority also errs in relying on the court of appeals’s opinion in Filyaw v. Bouton, 87 Ark. App. 320, 191 S.W.3d 540 (2004), where the court of appeals, citing Jenkins, supra, stated that a personal representative cannot act until the letters of administration are issued. The court of appeals stated in Green v. Nuñez, 98 Ark. App. 149, 152, 253 S.W.3d 11, 13 (2007),2 that its “discussions regarding letters of administration in Filyaw were not necessary to the decision we reached. We therefore, determine that the language is obiter dictum, and we are not bound by it.” Thus, Filyaw may not be cited for the purpose the majority cites it. In any event, the court of appeals in Filyaw, supra, relied on the obiter dictum in Jenkins, supra. It is of no precedential or persuasive value whatever. The issue in Filyaw was whether the personal representative had to be appointed before he could act. In Green, supra, the court of appeals stated that, “In Filyaw, we held that the purported personal representative had no authority to file suit because the order appointing him had not been entered of record.” Id. Filyaw did not concern the question of whether authority arises only upon issuance of letters of administration.
The discussion in the present case regarding when a personal representative or administrator may sue or be sued is unnecessary to the decision in the present case. The discussion is obiter dictum and in error. Its inclusion only serves to confuse this case.
Danielson, J., joins.Ark.CodeAnn.§ 28-40-102(b) (Repl.2004),or Ark.Code Ann.§ 28-40-104 (Supp. 2005).
The majority indicates in footnote 2 in the majority opinion that although the court of appeals “appeared to change course in Green v. Nuñez, 98 Ark. App. 149, 253 S.W.3d 11 (2007), that case involved the probate court’s issuance ofletters of administration nunc pro tunc.” In Green, supra, as a consequence of the order nunc pro tunc, and although the letters of administration were actually issued on March 30,2006, they related back to January 6,2006, when the personal representative was appointed. Thus, arguably, the court of appeals’s analysis on the stated issue of “whether Mr. Nunez was required to have letters of administration issue to him before he was empowered to file a wrongful death/survival action,” and is itself obiter dictum. See Green, 98 Ark. App. at 151, 253 S.W.3d at 12. However, whether it is obiter dictum or not, the court of appeals analysis in Green is correct. Even if Green, supra had not been decided, Filyaw v. Bouton, 87 Ark. App. 320, 191 S.W.3d 540 (2004), would still be in error for precisely the reasons set out in Green, supra. Whether or not the court of appeals has addressed the question of obiter dictum in Filyaw, supra, is not relevant to this court’s decision. The decisions of the court of appeals are not precedent for this court. The court of appeals relied on obiter dictum in Jenkins v. Means, 242 Ark. 111, 411 S.W.2d 885 (1967), in reaching its decision in Filyaw, supra, and thus it cannot support the majority’s decision in the present case. It should not be cited.