Kelly v. Saint Francis Med. Ctr.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/27/2017 09:08 AM CST
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
KELLY v. SAINT FRANCIS MED. CTR.
Cite as 295 Neb. 650
A nn K elly, in her own behalf and on behalf of the
Estate of Stephen K elly, deceased, appellant, v.
Saint Francis Medical Center, a corporation
organized under the laws of the State of
Nebraska, et al., appellees.
___ N.W.2d ___
Filed January 27, 2017. No. S-16-051.
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 appel-
late 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 man-
ner 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 other-
wise 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 applica-
tion of legal principles and judgment with regard to the circumstances
or objectives of another entity or person which require the knowledge,
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KELLY v. SAINT FRANCIS MED. CTR.
Cite as 295 Neb. 650
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,
K elch, 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
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KELLY v. SAINT FRANCIS MED. CTR.
Cite as 295 Neb. 650
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 pro-
vided 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 draft-
ing 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, deny-
ing 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 unauthor-
ized 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
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KELLY v. SAINT FRANCIS MED. CTR.
Cite as 295 Neb. 650
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 deter-
mining 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
[1,2] 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
[3] 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
1
Gonzalez v. Union Pacific RR. Co., 282 Neb. 47, 803 N.W.2d 424 (2011).
2
Id.; Central Neb. Pub. Power Dist. v. North Platte NRD, 280 Neb. 533,
788 N.W.2d 252 (2010).
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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.
[4-6] 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, “[s]elec-
tion, drafting, or completion, for another entity or person, of
legal documents which affect the legal rights of the entity or
person . . . .”7
3
See Bailey v. First Nat. Bank of Chadron, 16 Neb. Ct. App. 153, 741 N.W.2d
184 (2007).
4
Neb. Ct. R. § 3-1003.
5
Neb Ct. R. § 3-1002(A).
6
Neb Ct. R. § 3-1001.
7
§ 3-1001(B).
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Nebraska Supreme Court A dvance Sheets
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KELLY v. SAINT FRANCIS MED. CTR.
Cite as 295 Neb. 650
In Waite 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 attor-
ney, 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.
Fahnlander12 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).
8
Waite v. Carpenter, 1 Neb. Ct. App. 321, 496 N.W.2d 1 (1992).
9
Id. at 325, 328, 496 N.W.2d at 4,5.
10
Id. at 328, 496 N.W.2d at 5.
11
Id.
12
Back Acres Pure Trust v. Fahnlander, 233 Neb. 28, 443 N.W.2d 604
(1989).
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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 proceeding in which a party is represented by a per-
son not admitted to practice law is a nullity and is subject
to dismissal.
(i) Flagrant and Persistent
Unauthorized Practice
Ann contends that the term “nullity” has a technical defini-
tion of “‘legally void,’” but that it has been applied in similar
Nebraska cases with discretionary language.15 Furthermore,
13
Id. at 29, 443 N.W.2d at 605.
14
See § 3-1001(B).
15
Brief for appellant at 9.
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Cite as 295 Neb. 650
Ann argues that courts have consistently premised dismissal
only on flagrant and persistent unauthorized acts.
In Niklaus v. Abel Construction Co.,16 this court held that
“[t]he flagrant and persistent unlawful practice of law” com-
mitted by a disbarred attorney “require[d] that the proceedings
be held to be a nullity and the action dismissed.” The disbarred
attorney prepared and filed the summons, submitted the docu-
ments to the court, and was “actively, openly, and persistently
performing the duties and exercising the powers of a member
of the bar of this state.”17 We stated that “‘[p]roceedings in a
suit by a person not entitled to practice are a nullity, and the
suit may be dismissed.’”18 This court reasoned that “[t]he dis-
missal of a proceeding for such a cause is a drastic remedy and
may not be required in all cases. The extent of the unlawful
practice . . . in this case requires that it be done.”19
This court subsequently decided Steinhausen v. HomeServices
of Neb.,20 in which the plaintiff, a nonlawyer, filed a pro se
complaint to the district court in his own behalf and on behalf
of the limited liability company of which he was the sole
member. The complaint was dismissed on summary judgment,
and he filed a brief on appeal. This court ruled that a licensed
member of the Nebraska bar must represent a company in the
courts of this state. Therefore, this court held that the pro se
complaint filed by the plaintiff in his own behalf and on behalf
of the company he owned was a nullity to the extent that he
had appealed on behalf of the company, but was valid as to the
errors assigned in his own behalf. In its analysis, this court did
not discuss whether the acts constituted flagrant and persistent
16
Niklaus v. Abel Construction Co., 164 Neb. 842, 852-53, 83 N.W.2d 904,
911 (1957).
17
Id. at 848, 83 N.W.2d at 909.
18
Id. at 852, 83 N.W.2d at 911.
19
Id.
20
Steinhausen v. HomeServices of Neb., 289 Neb. 927, 857 N.W.2d 816
(2015).
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Cite as 295 Neb. 650
unauthorized acts in determining that the complaint as to the
company was a nullity. Rather, the unauthorized practice of
law was sufficient to find that the pro se complaint on behalf
of the company was a nullity.
Ann argues that the opinion in Niklaus indicates that this
court has the discretion to hold that an unauthorized practice of
law is a nullity depending on the extent of the unlawful prac-
tice. However, this court’s more recent decision in Steinhausen
shows that the extent of the unauthorized practice of law is not
a consideration in a court’s determination of whether the unau-
thorized filing of a legal document is a nullity.
Similarly to Steinhausen, Ann drafted and filed a complaint
that constituted the unauthorized practice of law. While she
later obtained counsel to file her motion for leave to file an
amended complaint and her subsequent appeal of the court’s
ruling on the motion, the single act constituting the unautho­
rized practice of law was sufficient for the court to rule that her
complaint was a nullity, as we found in Steinhausen. The court
was not required to find that Ann’s acts constituted flagrant and
persistent unauthorized acts.
(ii) Whether Basis for Prohibition Against
Unauthorized Practice of Law
Is Promoted by Dismissal
Ann contends that the policy supporting the prohibition
against the unauthorized practice of law is not promoted by
dismissal in this case. Burwell argues that any other result
would not serve the policy considerations at issue, because this
protects the estate and discourages the unauthorized practice of
law. Saint Francis does not address this issue.
In Waite, the Court of Appeals held that policy consider-
ations for the rule against nonattorneys practicing law for
others was not “to perpetuate a professional monopoly,”
but, rather,
(1) to protect citizens from injury caused by the ignorance
and lack of skill on the part of those who are untrained
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and inexperienced in the law, (2) to protect the courts in
their administration of justice from interference by those
who are unlicensed and are not officers of the court, and
(3) to prevent the unscrupulous from using the legal sys-
tem for their own purposes to the harm of the system and
those who may unknowingly rely upon them.21
The court further stated in Waite that in wrongful death
actions, “one who seeks to represent the legal interests of the
personal representative must be an attorney” and “[t]his rule
protects the estate, its heirs, and its creditors.”22 By dismiss-
ing the case based on the unlawful filing of a wrongful death
complaint by a nonlawyer on behalf of the estate, the lower
court clearly promoted the policy reasons behind the prohi-
bition against the unlawful practice of law and essentially
sought to protect the estate. The policy considerations behind
the prohibition of the unauthorized practice are furthered
by the lower court’s decision that the prior complaint was
a nullity.
(iii) Whether Dismissal Should Not
Be Required Based on Harsh
Consequences to Litigants
Ann contends that in cases such as this, in which the unau-
thorized practice of law was minimal and the party has taken
steps to cure the unauthorized practice, the court should be
permitted to allow the party to cure the unauthorized practice.
There is a split of authority on the question of whether the
unauthorized practice of law renders a proceeding a nullity or
merely amounts to an amendable defect.23 Some courts hold
that the unauthorized practice of law amounts to a nullity and
find that the “proscription on the unauthorized practice of law
is of paramount importance in that it protects the public from
21
Waite v. Carpenter, supra note 8, 1 Neb. Ct. App. at 330, 496 N.W.2d at 6.
22
Id. at 328, 496 N.W.2d at 5.
23
Davenport v. Lee, 348 Ark. 148, 72 S.W.3d 85 (2002).
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those not trained or licensed in the law.”24 Other jurisdictions
find that it merely amounts to an amendable defect in “an
attempt to avoid what they deem to be the unduly harsh result
of dismissal on technical grounds.”25
In Steinhausen,26 this court did not address any harsh con-
sequences that would result from dismissing the plaintiff’s
claims as related to his limited liability company. Rather, this
court reasoned:
The prohibition of the unauthorized practice of law is
not for the benefit of lawyers. Prohibiting the unautho­
rized practice of law protects citizens and litigants in the
administration of justice from the mistakes of the ignorant
on the one hand and the machinations of the unscrupulous
on the other.27
This court then simply held that “because [the plaintiff] is
not licensed to practice law in Nebraska, his appeal . . . is a
nullity.”28 Thus, while we have not explicitly addressed the
issue of whether the harsh consequence to litigants should be
taken into account, we have shown that our paramount concern
24
Id. at 160, 72 S.W.3d at 93. See, Jones ex rel. Jones v. Correctional Med.
Services, 401 F.3d 950 (8th Cir. 2005); Ex parte Ghafary, 738 So. 2d 778
(Ala. 1998); Ratcliffe v. Apantaku, 318 Ill. App. 3d 621, 742 N.E.2d 843,
252 Ill. Dec. 305 (2000); Garlock Sealing Technologies, LLC v. Pittman,
Nos. 2008-IA-01572-SCT, 2008-IA-01584-SCT, 2008-IA-01599-SCT,
2010 WL 4009151 (Miss. Oct. 14, 2010).
25
Davenport v. Lee, supra note 23, 348 Ark. at 160, 72 S.W.3d at 93. See,
Operating Eng. Local 139 Health v. Rawson Plumbing, 130 F. Supp. 2d
1022 (E.D. Wis. 2001); Boydston v. Strole Development Co., 969 P.2d
653 (Ariz. 1998); Downtown Disposal Services, Inc. v. City of Chicago,
2012 IL 112040, 979 N.E.2d 50, 365 Ill. Dec. 684 (2012); Richardson
v. Dodson, 832 S.W.2d 888 (Ky. 1992); First Wholesale v. Donegal, 143
Md. App. 24, 792 A.2d 325 (2002); Mikesic v. Trinity Lutheran Hosp.,
980 S.W.2d 68 (Mo. App. 1998); Starett v. Shepard, 606 P.2d 1247 (Wyo.
1980).
26
Steinhausen v. HomeServices of Neb., supra note 20.
27
Id. at 935, 857 N.W.2d at 825.
28
Id. at 948, 857 N.W.2d at 833.
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in such cases is to protect the public from the unauthorized
practice of law.
In order to sufficiently address this paramount concern, it
is not necessary for this court to engage in a calculation as to
whether the consequences for the unauthorized practice of law
are proportional to the gravity of the harm done to the public.
We regard the unauthorized practice of law as a serious offense,
and we therefore favor the approach of those jurisdictions that
have found that any unauthorized practice is a nullity.
Under a de novo standard of review, the district court cor-
rectly held that Ann’s complaint was a nullity and the district
court was not required to find flagrant and persistent unautho­
rized acts. Ann’s first assignment of error is without merit.
2. Whether A mended Complaint Could
R elate Back and Cure Defects
of I nitial Complaint
Ann contends that under Genthon v. Kratville,29 an amended
complaint filed by counsel could have related back to her pro
se complaint and cured any defects. But Saint Francis and
Burwell, consistent with their earlier arguments, argue that
under Waite30 and Neb. Rev. Stat. § 7-101 (Reissue 2012), pro
se pleadings filed on behalf of others are a nullity, thus they
have no legal effect and are the same as if they have never
existed. Saint Francis and Burwell further argue that Genthon
is distinguishable, because it merely addressed whether the
substitution of a correct party could relate back to the origi-
nal complaint when the attorney committed malpractice, not
if the amended complaint could relate back in circumstances
involving the unauthorized practice of law. Saint Francis and
Burwell also contend that Genthon was based on Neb. Rev.
Stat. § 25-852 (Reissue 1995), which has since been repealed.31
29
Genthon v. Kratville, 270 Neb. 74, 701 N.W.2d 334 (2005).
30
Waite v. Carpenter, supra note 8.
31
See 2002 Neb. Laws, L.B. 876, § 92 (operative Jan. 1, 2003).
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In Genthon,32 this court held that an amended complaint for
a wrongful death action related back to cure the defects of the
complaint deemed a nullity. In that case, the plaintiff retained
an attorney to represent his family in a wrongful death action
against the nursing home where the plaintiff’s mother had
died. After the attorney withdrew from the case, the plaintiff
filed a pro se wrongful death petition. The wrongful death peti-
tion was brought in the plaintiff’s name, individually, instead
of in the name of a personal representative for the benefit
of the next of kin, as required by Neb. Rev. Stat. § 30-810
(Reissue 1995).
The attorney resumed representation of the case 2 days
before the service deadline and agreed to serve the defendant
prior to the service deadline, but failed to do so. The special
administrator of the estate brought a legal malpractice action
against the attorney. The attorney demurred, asserting that
the statute of limitations barred the action. That motion was
sustained. The special administrator filed an amended legal
malpractice petition, relying on the attorney’s second period
of representation, appointed new counsel, and sought to file an
amended complaint to cure the defects of the original plain-
tiff’s pro se complaint.
This court stated that § 25-852 was to be “liberally construed
so as to permit amendments when proposed at opportune times
in furtherance of justice.”33 This court held that the plaintiff’s
pro se wrongful death petition was defective because it named
the wrong plaintiff, but the court allowed for the substitution
of a new party in the complaint because, under § 25-852, “[it]
would not introduce a new cause of action or, in other words,
result in an attempt to state facts giving rise to a wholly dis-
tinct and different legal obligation against the defendant or
change the liability sought to be enforced.”34
32
Genthon v. Kratville, supra note 29.
33
Id. at 81, 701 N.W.2d at 343.
34
Id. at 82, 701 N.W.2d at 344.
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This court further held that the amended petition would
relate back to the filing date of the original petition, because
the amendment did not “introduce a new cause of action, but,
rather, relie[d] upon the same set of facts as the original plead-
ing and the defendant is not prejudiced by the amendment.”35
However, since § 25-852 has been repealed, it is more
instructive to look at recent cases that discuss the current
pleading amendment statute, Neb. Rev. Stat. § 25-201.02
(Reissue 2016).
In Gibbs Cattle Co. v. Bixler,36 the defendant argued that the
word “‘changes’” in the phrase contained in § 25-201.02(2),
“‘[i]f the amendment [to a pleading] changes the party or
the name of the party against whom a claim is asserted, the
amendment relates back to the date of the original pleading
. . . ,’” should be construed to include the addition of a party.
This court analyzed the split in federal case law as to whether
“changes” included the “addition” of parties and reasoned,
“[t]hough certain courts and commentators advocate for a
different approach—premised on the overriding importance
of notice—that approach ignores that the relation-back rule
‘plainly sets forth an exclusive list of requirements,’ rather than
factors to be weighed.”37
Based on this court’s approach that the “language of the rule
controls,” we held that § 25-201.02(2) expressly applies only
to amendments which “‘change[] the party or the name of the
party against whom a claim is asserted’” and does not allow
for the “addition of parties.”38
In Reid v. Evans,39 this court held that an amended complaint
did not relate back to the original complaint under § 25-201.02
35
Id. at 83, 701 N.W.2d at 344.
36
Gibbs Cattle Co. v. Bixler, 285 Neb. 952, 963, 831 N.W.2d 696, 704
(2013).
37
Id. at 970, 831 N.W.2d at 708 (emphasis in original).
38
Id. at 969-70, 831 N.W.2d at 708.
39
Reid v. Evans, 273 Neb. 714, 733 N.W.2d 186 (2007).
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because the original complaint was a nullity. The plaintiff filed
a negligence action against the defendant who had died prior to
the filing of the action. Thus, service was not completed on the
defendant and a complaint naming his estate as defendant was
not served within the 6-month statutory timeframe for service
of a complaint. The plaintiff argued that under § 25-201.02,
she should have been allowed to amend her complaint, and that
such an amendment would have been effective as of the date
she commenced her lawsuit.
This court disagreed, reasoning that § 25-201.02 “only
allows an amendment to relate back to the original filing date
if the party who is being added by the amendment was aware
of the claim during ‘the period provided for commencing an
action’ against such party.”40 Because the defendant did not
receive notice prior to the expiration of the statute of limita-
tions, the court held that the plaintiff could not benefit from the
relation back statute. The court further held that because the
plaintiff’s lawsuit had been dismissed, her subsequent motion
to amend and take advantage of relation back was a nullity and
the court lacked jurisdiction to make any further orders other
than to formalize the dismissal.
Saint Francis cites the concurrence in Reid, which states
that “there is a more fundamental reason in relation-back
jurisprudence why [the plaintiff’s] motion to amend by invok-
ing relation back was inapplicable.”41 The concurrence further
explains that
[i]n order for an amendment to relate back to the origi-
nal filing date, there must be an action pending at the
time the proposed amendment is filed. If a lawsuit has
already been dismissed, there is nothing for a subsequent
amendment to relate back to. . . . Because [the plaintiff’s]
40
Id. at 721, 733 N.W.2d at 190.
41
Id. at 722, 733 N.W.2d at 191 (Miller-Lerman, J., concurring; McCormack,
J., joins).
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lawsuit had been dismissed, there was nothing for her
proposed amendment to relate back to.42
Burwell cites Galaxy Telecom v. SRS, Inc.,43 in which the
Court of Appeals held that if pleadings are a nullity, the court
should not give them “any effect.” In Galaxy Telecom, a non-
lawyer member of the defendant corporation timely filed a pro
se answer to the plaintiff’s complaint. The court held that it
would “not give any effect to the papers signed and filed” by
the nonlawyer member on behalf of the corporation because
it was an unauthorized practice of law.44 And “the responsive
letter filed by [the defendant] on behalf of [the corporation]
was a nullity and did not constitute an answer.”45 The stipula-
tion signed by the nonlawyer member was thus “also of no
effect.”46 The court analyzed the facts as though the corpo-
ration had not filed an answer and held default judgment
was appropriate.
Burwell also cites the Arkansas Supreme Court’s decision in
Davenport v. Lee,47 mentioned above, in which a nonattorney
personal representative filed a pro se complaint in a wrongful-
death action on behalf of the decedent’s estate. The Arkansas
Supreme Court found that the defect “rendered the complaint a
nullity” and held that “the original complaint, as a nullity never
existed, and thus, an amended complaint cannot relate back to
something that never existed, nor can a nonexistent complaint
be corrected.”48
In Genthon, this court analyzed the relation-back issue
under § 25-852. We stated that it “liberally construed” the
42
Id. at 722-23, 733 N.W.2d at 192.
43
Galaxy Telecom v. SRS, Inc., 13 Neb. Ct. App. 178, 185, 689 N.W.2d 866, 873
(2004).
44
Id.
45
Id.
46
Id.
47
Davenport v. Lee, supra note 23.
48
Id. at 157, 160, 72 S.W.3d at 89, 94.
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relation-back statute to permit amendments when in further-
ance of justice.49 But as noted above, that statute has since
been repealed. Therefore, this court’s analysis in Genthon is no
longer controlling.
In Gibbs Cattle Co. v. Bixler and Reid v. Evans, this court
strictly interpreted the current pleading amendment statute,
§ 25-201.02, and held that the amended complaint could not
relate back to the original complaint to cure the defects of the
original complaint. The concurrence in Reid further explains
that there must be an action pending at the time in order for
§ 25-201.02 to allow relation back. And if, as the Court of
Appeals held in Galaxy Telecom, a complaint deemed a nul-
lity due to the unauthorized practice of law is not given “any
effect” and does not “constitute” a complaint,50 then there is
nothing for an amended complaint to relate back to under this
court’s interpretation of § 25-201.02.
Similarly to the Arkansas Supreme Court’s reasoning in
Davenport, Ann’s amended complaint, which would be filed
by counsel after the statute of limitations had run, cannot relate
back to her pro se complaint. The pro se complaint consti-
tuted an unauthorized practice of law; thus, it was “something
that never existed,” and, as a nonexistent complaint, it cannot
be corrected.
Ann’s second assignment of error is without merit.
VI. CONCLUSION
The district court did not err in holding that (1) the prior
complaint was a nullity and (2) an amended complaint could
not relate back to the filing of the original pro se complaint.
The decision of the district court is affirmed.
A ffirmed.
49
See Genthon v. Kratville, supra note 29, 270 Neb. at 81, 701 N.W.2d at
343.
50
See Galaxy Telecom v. SRS, Inc., supra note 43, 13 Neb. Ct. App. at 185, 689
N.W.2d at 873.