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WRONGFUL DEATH & PERSONAL REPRESENTATIVE - NORTHSTAR ANESTHESIA OF ALABAMA, LLC V. NOBLE

Northstar Anesthesia of Alabama, LLC v. Noble, [Ms. 1141158, 1141166, 1141168, released July 8, 2016] __ So. 3d __ (Ala. 2016). The Supreme Court grants three petitions for permissive appeals pursuant to Rule 5, Ala. R. App. P. and directs the Morgan Circuit Court to reverse its order denying motions for summary judgment in a wrongful death action based upon there being no lawfully appointed personal representative at the time the complaint for wrongful death was filed.

The opinion describes the facts as "undisputed." Ms. *3.

On November 18, 2011, Thomas died. On January 9, 2012, Paula filed a petition in the Morgan Probate Court ("the probate court") for letters of administration, seeking to be appointed the personal representative of Thomas's estate. On January 18, 2012, the probate court granted Paula's petition and appointed her personal representative of Thomas's estate. On the same day, the probate court also issued letters of administration to Paula. On August 10, 2012, Paula filed a petition for a consent settlement of Thomas's estate, seeking to close the estate; Paula specifically requested that she be discharged as the personal representative. On August 16, 2012, the probate court granted Paula's petition and, among other things, ordered that "said Personal Representative be discharged and released."

On November 15, 2013, Paula, on behalf of Thomas's heirs at law, after being discharged and released as the personal representative of Thomas's estate, filed a wrongful-death action against the appellants under § 6-5-410, Ala. Code 1975.

On November 18, 2013, the two-year limitations period for bringing a wrongful-death action set forth in § 6-5-410(d), Ala. Code 1975, expired: "(d) The [wrongful-death] action must be commenced within two years from and after the death of the testator or intestate."

Ms. *3-4. Citing Ex parte Hubbard Properties, Inc. [Ms. 1141196, Mar. 4, 2016] __ So. 3d __ (Ala. 2016) and Waters v. Hipp, 600 So. 2d 981 (Ala. 1992), the Court reiterates (Ms. *9-12) that only a personal representative may commence a wrongful-death action. Because Paula was not the personal representative of Thomas's estate on the date she filed the complaint, the complaint was a nullity such that her subsequent re-appointment as personal representative had nothing to relate back to. Accordingly, the relation-back doctrine of Rules 9 and 15, Ala. R. Civ. P., cannot apply.

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