Appellants asked to intervene in this probate matter to determine whether appellee Epigmenio Núñez was a duly appointed personal representative when he filed a wrongful-death/survival lawsuit against them. The probate judge denied the intervention, and this appeal followed. We affirm.
Mr. Nuñez’s son died on January 18, 2004, while allegedly under the care of the appellant physicians. On February 25, 2005, Mr. Núñez asked the probate court to appoint him administrator of his son’s estate. He requested letters of administration, declared the estate’s primary asset to be the potential benefits from a wrongful-death lawsuit, and sought approval of a legal-representation contract.
On January 6, 2006, the court entered an order appointing Mr. Núñez as administrator, but no letters of administration were issued at that time. On January 13, 2006, Mr. Núñez sued appellants, asserting wrongful-death and survival causes of action based on medical malpractice.
On March 30, 2006, which was about six weeks after the suit was filed, the probate judge ordered the court clerk to “issue Letters of Administration [to Mr. Núñez] as of January 6, 2006, nunc pro tunc.” The letters were then issued bearing the date January 6, 2006.
On April 25, 2006, appellants filed a motion to intervene in the probate case. They contended that, because Mr. Núñez failed to obtain letters of administration prior to filing the January 13, 2006, lawsuit, he had no standing to bring the action. And, they claimed, because the two-year statute of limitations on medical-malpractice actions had expired by the time the letters were actually issued, the suit was time-barred.1 They therefore asked to intervene for the purpose of protecting their statute-of-limitations defense and for the purpose of setting aside the nunc pro tunc order.
On June 26, 2006, the probate judge denied the motion to intervene. He essentially reasoned that the outcome of the intervention would not favor appellants and they therefore had no interest in the probate matter. Among the court’s rulings were that Mr. Nuñez’s tort complaint was not a nullity because he had been appointed as administrator at the time he filed the lawsuit, despite not yet having letters of administration, and that the issuance of the letters of administration nunc pro tunc, effective January 6, 2006, was proper.2 Appellants now appeal from the denial of their motion to intervene, which is an appealable order. See N. W. Ark. Area Agency on Aging v. Golmon, 70 Ark. App. 136, 15 S.W.3d 363 (2000).
Probate matters are reviewed de novo on appeal. Helena Reg’l Med. Ctr. v. Wilson, 362 Ark. 117, 207 S.W.3d 541 (2005). We will not disturb the probate judge’s decision absent an abuse of discretion or a finding that the judge’s decision is clearly erroneous. Id.
We first consider whether Mr. Núñez was required to have letters of administration issued to him before he was empowered to file a wrongful-death/survival action. In his petition seeking appointment as administrator, Mr. Núñez requested letters of administration and evidenced his intention to file suit on behalf of the estate. In the order appointing him administrator, the court acknowledged the potential for a lawsuit, dispensed with bond, and approved a legal-representation contract. Under these particular circumstances, it is quite clear that the court, upon entering the order of appointment on January 6, 2006, granted Mr. Núñez the authority to file the lawsuit.
Appellants contend, however, that such authority cannot be conferred until letters of administration are issued. They point out that, in Filyaw v. Bouton, 87 Ark. App. 320, 191 S.W.3d 540 (2004), we stated that an order appointing a personal representative was not effective until it was filed with the clerk and “letters of administration were issued” and that the personal representative in that case had no standing to file a wrongful-death suit “until the issuance of the letters [of administration].” Id. at 325-26, 191 S.W.3d at 543. In so stating, we referred to Jenkins v. Means, 242 Ark. 111, 411 S.W.2d 885 (1967), whose language indicated that, under certain venue statutes, letters of administration were required before a personal representative could “sue or be sued.” Id. at 114, 411 S.W.2d at 887-88. Despite the language in Filyaw and Jenkins, we decline to apply them here because both cases are readily distinguishable. In Jenkins, the court ruled that the purported personal representative could not be served with process because she had not yet filed her petition for appointment. 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. No such infirmities are present here. Mr. Nuñez’s appointment order was duly entered before he filed suit.
Nevertheless, we must come to terms with our language in Filyaw. The issue in Filyaw was whether the trial court’s mere signature on an order appointing a personal representative was sufficient to confer the authority to file suit. We held that it was not and that the order must be entered, i.e., filed with the clerk, to be effective. However, in addition to arriving at that conclusion we chose — not wisely perhaps but in the spirit of accommodation — to address Mr. Filyaw’s response to a claim by one of the appellees that he was required both to be appointed and receive letters of administration. The result was the language quoted above, which is now relied on by appellants. In retrospect, it is plain that our 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. See Ward v. Williams, 354 Ark. 168, 118 S.W.3d 513 (2003) (holding that, where a discussion or comment in an opinion is not necessary to the decision reached therein, the discussion or comment is obiter dictum and that the appellate court is not bound by it, even if couched in terms that imply the court reached a conclusion on a matter).
So we reiterate our conclusion that the trial court, by its order entered January 6, 2006, conferred on Mr. Núñez the authority to file the wrongful-death/survival lawsuit. From that conclusion, it is no great step to say that the court, in issuing the letters of administration nunc pro tunc to January 6, 2006, committed no abuse of discretion. See Croft v. Croft, 8 Ark. App. 20, 648 S.W.2d 511 (1983) (holding that the making or refusing of a nunc pro tunc order rests in the sound discretion of the lower court). The court explained its decision as follows:
The Court properly issued the order of March 30, 2006 directing the Clerk to issue the letters of administration nunc pro tunc. The original petition requested that letters be issued. Although no explicit direction to issue letters of administration was included in the Order, the intent of the Order was to empower the Administrator to file the wrongful death and survival lawsuit. The nunc pro tunc order merely memorializes what was actually done when the Administrator was appointed. The Administrator had a right to rely on that Order.
The judge’s words reflect that, under these circumstances, he viewed the letters as a memorialization of that which had, in reality, already been accomplished — authorizing Mr. Núñez to act as administrator for the purpose of filing suit. See generally Fitzjarrald v. Fitzjarrald, 233 Ark. 328, 344 S.W.2d 584 (1961) (holding that a nunc pro tunc order may be entered to make the record conform to the action that was in reality taken). Given the court’s clear decision to confer the necessary authority on Mr. Núñez by its January 6, 2006, order, we cannot say that the court’s nunc pro tunc issuance of the letters, effective to that date, was an abuse of discretion.
Based on the foregoing, we conclude that, at the time Mr. Núñez filed suit on January 13, 2006, he was clothed with the authority to do so. Appellants therefore have no interest in the probate action and no reason to intervene, either as a matter of right or by permission. The probate court’s denial of the intervention is affirmed.
Affirmed.
Robbins, J., agrees. Griffen, J., concurs.The two-year statute of limitations for medical malpractice applies where death ensues from medical injuries. See Davis v. Parham, 362 Ark. 352, 208 S.W.3d 162 (2005).
The court cited other reasons for its ruling, but we need not address them, given that we are affirming on other grounds. However, there is one matter that deserves comment. The court ruled that Mr. Nuñez’s complaint was not a nullity because, in addition to its being filed by him as administrator, it was filed alternatively by him and his wife as heirs at law. However, that alternative filing would have had no effect on the survival action. A survival action must be brought by the estate’s personal representative and cannot be brought by the heirs. See Smith v. St. Paul Fire & Marine Ins. Co., 76 Ark.App. 264, 64 S.W.3d 764 (2001).