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Kelly v. Saint Francis Medical Center

Supreme Court of Nebraska

January 27, 2017

Ann Kelly, in her own behalf and on behalf of the Estate of Stephen Kelly, deceased, appellant,
v.
Saint Francis Medical Center, a corporation organized under the laws of the state of Nebraska, et al., appellees.

          1. Pleadings: Appeal and Error. An appellate court reviews a district court's decision on a motion for leave to amend a complaint for an abuse of discretion.

         2. Motions to Dismiss: Appeal and Error. An appellate court reviews a district court's order granting a motion to dismiss de novo.

         3. Rules of the Supreme Court: Pleadings: Appeal and Error. An appellate court reviews the district court's denial of a motion to amend under Neb. Ct. R. Pldg. § 6-1115(a) for an abuse of discretion. However, an appellate court reviews de novo any underlying legal conclusion that the proposed amendments would be futile.

         4. Attorneys at Law: Rules of the Supreme Court. No nonlawyer shall engage in the practice of law in the State of Nebraska or in any manner represent that such nonlawyer is authorized or qualified to practice law in the State of Nebraska except as may be authorized by published opinion or court rule.

         5. Attorneys at Law: Rules of the Supreme Court: Words and Phrases. The term "nonlawyer" means any person not duly licensed or otherwise authorized to practice law in the State of Nebraska. The term also includes any entity or organization not authorized to practice law by specific rule of the Supreme Court whether or not it employs persons who are licensed to practice law.

         6. ___: ___: ___. The practice of law or to practice law is the application of legal principles and judgment with regard to the circumstances or objectives of another entity or person which require the knowledge, [295 Neb. 651] judgment, and skill of a person trained as a lawyer. This includes, but is not limited to selection, drafting, or completion, for another entity or person, of legal documents which affect the legal rights of the entity or person.

         Appeal from the District Court for Hall County: Teresa K. Luther, Judge.

         Affirmed.

         Nichole S. Bogen and Tyler K. Spahn, of Sattler & Bogen, L.L.P., for appellant.

          Patrick G. Vipond, Brian J. Brislen, and Cathy S. Trent-Vilim, of Lamson, Dugan & Murray, L.L.P., for appellee Saint Francis Medical Center.

          James A. Snowden and Krista M. Carlson, of Wolfe, Snowden, Hurd, Luers & Ahl, L.L.P, for appellee Jeff S. Burwell.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Heavican, C.J.

         I. INTRODUCTION

         Ann Kelly filed, in her own behalf and on behalf of the estate of Stephen Kelly, a pro se wrongful death action against Saint Francis Medical Center (Saint Francis), Dr. Jeff S. Burwell, and other "fictitious entities." Ann later filed, through counsel, a motion for leave to file an amended complaint. The district court concluded that an amended complaint could not relate back to the date of the original filing and dismissed the action as untimely. Ann appeals. We affirm.

         II. BACKGROUND

         On March 9, 2013, Stephen suffered a fall in his home. He was transported to Saint Francis' emergency department on March 10. Burwell attended to Stephen and ordered an x ray of Stephen's shoulder, a CT scan of his head, and an injection [295 Neb. 652] of pain medication. Based on the results of the tests, Burwell prescribed Toradol and discharged Stephen. Two days later, on March 12, Ann found Stephen unresponsive. Stephen was transported to Saint Francis, where he died on March 16.

         On March 10, 2015, Ann filed a pro se complaint in her own behalf and on behalf of the estate of Stephen against Saint Francis, Burwell, "John and Jane Does I-X; ABC Corporations; and XYZ Partnerships." In Ann's complaint, she alleged that (1) Burwell provided negligent medical care to Stephen, which was the direct cause of his death, and (2) Saint Francis provided negligent medical care to Stephen, which was the direct cause of his death. Ann signed the complaint as a "Pro Se Plaintiff." A law firm located in Arizona assisted Ann in drafting the complaint. It is undisputed that at the time of filing, Ann was not a licensed attorney.

         On April 22, 2015, Saint Francis filed its answer, denying Ann's allegations seeking dismissal of her complaint. On August 12, Saint Francis and Burwell filed a motion to dismiss, alleging that (1) the complaint fails to state facts sufficient to state a cause of action, (2) Ann was engaged in the unauthorized practice of law, and (3) the complaint showed on its face that any claim was barred by the statute of limitations.

         Ann subsequently retained counsel. On August 28, 2015, counsel entered an appearance. On that same date, Ann, through counsel, filed a motion to continue. On September 1, Ann filed a motion for leave to file an amended complaint. In the motion, Ann stated that she was the special administrator of the estate of Stephen when the complaint was filed. Ann further stated that she filed her pro se complaint within the 2-year statute of limitations, that she had retained counsel for her amended complaint, and that she sought leave to file an amended complaint that would relate back to the date of the original complaint and cure any defects in the original complaint, including any unauthorized practice of law. Ann argued that an amended complaint should relate back to the date of the original complaint, because it would change only [295 Neb. 653] her capacity as the personal representative of the estate of Stephen, or, in the alternative, it should relate back, because all defendants received notice of this action and would not be prejudiced by the filing of an amended complaint.

         Following a hearing, the district court denied Ann's motion for leave to file an amended complaint and dismissed the motions filed against Saint Francis and Burwell. The court reasoned that "any pleadings filed by nonattorneys are of no effect." They are a "nullity" and "because they are a nullity, it is as if they never existed and therefore no amendment can relate back to them or save an action from a valid statute of limitations defense." Applying this reasoning to the facts of the case, the court held that the original complaint filed by Ann was a nullity and that "an amended complaint cannot relate back to something that never existed, nor can a nonexistent complaint be corrected."

         Ann appeals.

         III. ASSIGNMENTS OF ERROR

         Ann assigns, restated, that the district court erred in determining that (1) the prior complaint was a nullity and (2) an amended complaint, prepared and signed by counsel on Ann's behalf, could not relate back to the filing of the original pro se complaint.

         IV. STANDARD OF REVIEW

         An appellate court reviews a district court's decision on a motion for leave to amend a complaint for an abuse of discretion.[1] An appellate court reviews a district court's order granting a motion to dismiss de novo.[2]

         An appellate court reviews the district court's denial of a motion to amend under Neb. Ct. R. Pldg. § 6-1115(a) for an abuse of discretion. However, we review de novo any [295 Neb. 654] underlying legal conclusion that the proposed amendments would be futile.[3]

         V. ANALYSIS

         1. Whether Prior Complaint Was Nullity

         (a) Unauthorized Practice of Law

         First, to find whether the prior complaint was a nullity, we must determine whether the filing of the pro se complaint by Ann on behalf of the estate was the unauthorized practice of law, as was found by the district court.

         No nonlawyer shall engage in the practice of law in Nebraska or in any manner represent that such nonlawyer is authorized or qualified to practice law in Nebraska except as may be authorized by published opinion or court rule.[4] The term '"[n]onlawyer'" is defined by the rules as "any person not duly licensed or otherwise authorized to practice law in the State of Nebraska, " including "any entity or organization not authorized to practice law by specific rule of the Supreme Court whether or not it employs persons who are licensed to practice law."[5] The term '"practice of law'" is defined as "the application of legal principles and judgment with regard to the circumstances or objectives of another entity or person which require the knowledge, judgment, and skill of a person trained as a lawyer."[6] This includes, but is not limited to, "[selection, drafting, or completion, for another entity or person, of legal documents which affect the legal rights of the entity or person . . . ."[7]

         [295 Neb. 655] In White v. Carpenter[8] the Nebraska Court of Appeals held that a nonattorney was engaged in the unauthorized practice of law when he filed a wrongful death action on behalf of the estate for which he was a personal representative. The court noted that under Neb. Rev. Stat. § 30-2464(a) (Reissue 1989), a personal representative '"is a fiduciary who shall observe the standards of applicable trustees . . . '" and "one who seeks to represent the legal interests of the personal representative must be an attorney."[9] In addition, "[Neb. Rev. Stat.] § 7-101 [(Reissue 1991)] prevents the filing of any paper in any action 'unless the same bears the endorsement of some admitted attorney, or is drawn, signed, and presented by a party to the action or proceeding.'"[10] The court reasoned that

the pleadings were not signed by an admitted attorney, but, rather, by [the personal representative], and it is only where a party acts in a nonrepresentative capacity that he may file his own pleadings. There can be no question that [the personal representative] was engaged in the practice of law in violation of § 7-101.[11]

         Similarly, this court held in Back Acres Pure Trust v. Fahnlander[12] that the trustees of a trust were engaged in the unauthorized practice of law when they filed complaints pro se on behalf of the trust. This court reasoned that

a trustee's duties in connection with his or her office do not include the right to present argument pro se in courts of the state, because in this capacity such trustee would be representing interests of others and would therefore be engaged in the unauthorized practice of law. See In re Ellis, 53 Haw. 23, 487 P.2d 286 (1971).
[295 Neb. 656] Because [the nonlawyer] had no authority to file a brief in this matter, either in his own behalf or on behalf of appellants, appellants' briefs are ordered stricken, and the appeal is dismissed.[13]

         In the present case, both parties agree that Ann was a non-attorney at the time she filed a complaint on behalf of the estate. In her complaint, Ann sought to represent the interests of the estate. Ann drafted the complaint and signed it as a pro se plaintiff, though she apparently had the help of Arizona counsel in doing so. With this legal document, Ann is seeking to "affect the legal rights" of the estate.[14] This constitutes the unauthorized practice of law.

         (b) Dismissal of Ann's Unauthorized Practice of Law Because It Was "nullity"

         Ann argues that her pro se complaint should not have been dismissed as a "nullity" because (1) there was no flagrant and persistent unauthorized practice of law, (2) the basis for the prohibition against unauthorized practice is not promoted by dismissal in this case, and (3) dismissal should not be required based on the harsh consequences to litigants. Saint Francis and Burwell argue that the district court did not abuse its discretion when it dismissed Ann's complaint, because a legal ...


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