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Oakey v. Tyson

Court of Appeals of New Mexico

August 10, 2017

KATHLEEN OAKEY, Personal Representative of the ESTATE OF TAWANA LUCERO, Deceased, Plaintiff-Appellee,
v.
JOHN TYSON, M.D., Defendant-Appellant, and DOCTOR ON CALL, LLC; DOCTOR ON CALL 2, LLC; DOCTOR ON CALL 3, LLC; DOCTOR ON CALL 4, LLC; DOCTOR ON CALL, P.C.; JOHN VIGIL, M.D.; and MAY MAPLE PHARMACY, INC., Defendants.

         APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY C. Shannon Bacon, District Judge Fuqua Law & Policy, P.C. Scott Fuqua Santa Fe, NM

          Fine Law Firm Mark Fine Albuquerque, NM for Appellee

          Atwood, Malone, Turner & Sabin, PA Lee M. Rogers Carla Neusch Williams Roswell, NM Lorenz Law Alice T. Lorenz Albuquerque, NM for Appellant

          OPINION

          LINDA M. VANZI, Chief Judge

         {1} This appeal arises from a lawsuit filed July 3, 2012, by "Lance Lucero, [as] Personal Representative of the Estate of Tawana Lucero, deceased, " following Tawana's death on December 1, 2009, from an overdose of prescription medications. The complaint asserted claims against Doctor On Call, LLC and John Tyson, M.D., including negligence, medical malpractice, and wrongful death, based on allegations that Dr. Tyson had prescribed excessive amounts of dangerous medications to Tawana. Before he filed this suit (the civil action), Lance Lucero, Tawana's uncle, was appointed as personal representative of Tawana's probate estate in a separate case, In re Estate of Tawana Lucero, No. D-202-PB-2012-00031 (the probate case).

         {2}Lance did not obtain a separate district court appointment in the civil action as personal representative under the Wrongful Death Act (WDA), NMSA 1978, §§ 41-2-1 to -4 (1882, as amended through 2001), which provides that damages actions for death resulting from wrongful conduct "shall be brought by and in the name of the personal representative of the deceased person[.]" Section 41-2-3. Neither the district judge presiding over the civil action (who also presides over the probate case) nor anyone else questioned or raised any objection concerning Lance's capacity or authority to file or prosecute the civil action.

         {3}In the spring of 2013, Lance and Dr. Tyson entered into a settlement agreement, and the district court entered an agreed order dismissing all claims against Dr. Tyson with prejudice. Over two years later, on July 15, 2015, the court entered an order that stated, among other things, that Lance "was not appointed as the Personal Representative for the Wrongful Death Estate" and "removed" him as "Personal Representative of the Estate of Tawana Lucero, deceased, " replacing him as personal representative in both the civil action and the probate case.

         {4}A year after Lance was removed as personal representative, on July 26, 2016, the district court entered an order granting a motion filed by Kathleen Oakey (the newly appointed personal representative in the civil action) seeking to set aside the settlement and reinstate the claims against Dr. Tyson. That order was replaced and superseded by an order entered August 16, 2016, which recited that the relief sought in Oakey's motion "was to set aside the district court's [o]rder of [d]ismissal with prejudice of all claims against Dr. John Tyson, M.D., dated May 13, 2013" and ordered reinstatement of the claims against Dr. Tyson. Dr. Tyson filed an application for interlocutory appeal, which we granted. We reverse.

         BACKGROUND

         {5} The complaint in the civil action identified the plaintiff as "Lance Lucero, [as] Personal Representative of the Estate of Tawana Lucero, deceased" and alleged that "[Lance] is the duly appointed Personal Representative of the Estate of [Tawana]." A subsequent amended complaint adding additional defendants (collectively, Defendants) and claims identified Lance in the same way and contained the same allegation concerning Lance's appointment as "Personal Representative of the Estate of Tawana." As we have noted, no one objected to Lance's capacity or authority to commence or prosecute this case.

         {6} After Lance entered into a settlement agreement with Dr. Tyson on or about April 4, 2013, the district court entered an agreed order on May 13, 2013, dismissing the claims against Dr. Tyson with prejudice (the dismissal order). Lance continued to litigate the civil action against the remaining Defendants for the next two years without any objection from anyone concerning Lance's capacity or authority to prosecute the case. On June 12, 2015, Teresa Lucero, Lance's sister, filed an emergency motion seeking to intervene and obtain relief based on allegations that Teresa is Tawana's "natural mother" and "the statutory beneficiary of the wrongful death proceeds" and that Lance and his attorney at the time, Joseph Camacho, failed to distribute to her any proceeds of the settlement with Dr. Tyson.[1] Teresa had known of Tawana's death since early December 2009 and learned of this lawsuit no later than December 10, 2014 (the date of Camacho's withdrawal as Lance's attorney), perhaps earlier.

         {7} Teresa's motion sought the following "immediate" relief: (1) an "accounting as to whom the settlement money was paid and the whereabouts of the funds[, ]" (2) payment to Teresa of any funds from Camacho's trust account controlled by the New Mexico Disciplinary Board, and (3) removal and replacement of Lance as personal representative in the wrongful death case (WDA PR) because of his failure "to insure the partial settlement proceeds were properly paid to Teresa." The motion also represented that Lance's "current counsel is requesting to be allowed to withdraw[2] a n d the court-appointed Personal Representative should select a new attorney with the consent of [Teresa]." The motion's request for the removal and replacement of Lance as WDA PR was not based on Lance's failure to obtain court appointment as WDA PR, separate from his prior court appointment as personal representative in the probate case (the probate PR). In other words, Teresa's motion did not contend that Lance lacked capacity or authority to commence or prosecute the civil action, or to enter into the settlement with Dr. Tyson.

         {8} Defendants (not including Dr. Tyson, who had been dismissed more than two years earlier) opposed Teresa's motion on the grounds that they did not want any further delay, a WDA beneficiary has no intervention right, and an accounting should be sought in the probate case, not the civil action.

         {9} The district court held a motion hearing on July 8, 2015, at which Teresa's counsel argued that Lance should be removed as WDA PR and replaced with "a neutral person" because Lance had not distributed money and, "due to his non-cooperation with various counsel, " had not "pushed the case along after three years." The court observed that the file contained no indication that Lance "was ever appointed the personal representative for purposes of the [WDA]." When defense counsel advised that Lance "was appointed in a separate proceeding[, ]" the court said that there was such an indication in the probate case but that "[a]ppointment of a personal representative in a probate proceeding does not legally appoint anyone as the PR for purposes of wrongful death. They're distinct appointments." The court said, "I'm not convinced that [Lance] is actually the PR in this case[.]"

         {10} As noted, neither the court nor anyone else had raised this issue or otherwise questioned or objected to Lance's capacity or authority to file or prosecute the civil action during the prior three years of litigation. Teresa's counsel stated that, although the duties of a probate PR and a WDA PR differ, Lance had acted with proper authority in the civil action based on his appointment as the probate PR, including in settling the claims against Tyson. He also stated that the simple remedy is entry of a stipulated order appointing the probate PR as WDA PR.

         {11} The court subsequently stated that "we have a partial settlement with a party who is long departed from this case" and that "there is [no] unringing of that particular bell." But the issue of "undoing something like that" was not before the court. The court said it did not know "if there's going to be a question about legal capacity to enter that settlement" but that Dr. Tyson had been "dismissed with prejudice" and is "not a party to the case anymore." The court also observed that Teresa had standing in the probate case to seek "essentially everything" requested in her motion but that there was a question as to Teresa's standing in the civil action.

         {12} On July 15, 2015, the court entered an order declaring that Lance was not appointed as WDA PR and had not filed an inventory or closed the probate case, and that Teresa is Tawana's mother and a proper probate PR. The court ordered (1) the removal of Lance "as Personal Representative of the Estate of Tawana Lucero, deceased"; (2) the appointment of Kathleen Oakey as WDA PR; (3) the appointment of Teresa as probate PR;[3] (4) the immediate payment by Lance of "all amounts collected on behalf of the statutory beneficiary" to Teresa's attorney, James Ellis, to be held "in his trust account on behalf of the Estate of Tawana Lucero"; (5) distribution to James Ellis of "[a]ny money held by the Disciplinary Board in which [Teresa] has an interest" to be held "in his trust account on behalf of the Estate of Tawana Lucero"; and (6) the notification of all banks in which Lance has accounts by James Ellis that such accounts must be immediately frozen pending an accounting and further court order.[4]

         {13} Six months later, on January 25, 2016, Oakey, now WDA PR (hereinafter, Plaintiff), filed a motion seeking to set aside the settlement with Dr. Tyson and to reinstate the claims against him. The motion stated that "Plaintiff takes no issue with the propriety of" Lance having acted as the probate PR, but argued that the Tyson settlement "is void ab initio" because Lance "fundamentally lacked the necessary statutory authority to pursue the claims presented by the litigation." The motion did not contest the amount of the settlement or manner in which it was negotiated. Although the motion asserted that undoing the settlement is "[t]he appropriate remedy" and that the court had authority to do so, it cited no authority supporting either contention. Instead, the motion faulted the insurer for paying the settlement and complained that it would be "fundamentally unfair" to allow Lance to "steal" Plaintiff's entitlement to pursue claims against Dr. Tyson as she saw fit. The motion did not address the fact that, by this time, Teresa had received at least some of the settlement monies. The motion also said nothing about the fact that the claims against Dr. Tyson were not limited to wrongful death but included claims for negligence and medical malpractice.

         {14} Dr. Tyson (who intervened for the limited purpose of responding to the motion), filed a response, as did the remaining Defendants in the case, who also filed a motion to dismiss. Because Plaintiff cited no law purportedly authorizing the relief sought in the motion, Dr. Tyson and Defendants were left to their own devices to determine what legal authority might possibly be construed as authorizing Plaintiff's requested relief. Among other things, Defendants argued that Plaintiff could not have it both ways: if the court concluded that the Tyson settlement was void because Lance lacked legal authority to enter into it, the court must dismiss the civil action in its entirety because a legally authorized plaintiff had not filed the case within the time required by the WDA, a statute of repose. Defendants also argued that Rule 1-060(B) NMRA was the only authority the court might have, but that none of Rule 1-060(B)'s provisions applied; the motion was untimely; and the requested relief would prejudice Dr. Tyson and Defendants. Defendants argued further that the dismissal order was not void because ...


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