                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                             ASSAD V. SIDNEY REGIONAL MED. CTR.


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


              EMIL ASSAD, INDIVIDUALLY AND AS SPECIAL ADMINISTRATOR OF THE
                      ESTATE OF KATHY ASSAD, DECEASED, APPELLANT,
                                                V.

             SIDNEY REGIONAL MEDICAL CENTER, A CHEYENNE COUNTY HOSPITAL,
                          AND DR. TRACY RAY, P.A., APPELLEES.



                               Filed May 2, 2017.    No. A-16-949.


       Appeal from the District Court for Cheyenne County: DEREK C. WEIMER, Judge. Judgment
vacated, and cause remanded with directions.
       Emil Assad, pro se.
       Mark A. Christensen and Travis W. Tettenborn, of Cline, Williams, Wright, Johnson &
Oldfather, L.L.P., for appellees.



       MOORE, Chief Judge, and INBODY and RIEDMANN, Judges.
       RIEDMANN, Judge.
                                       INTRODUCTION
        Emil Assad appeals the order of the district court for Cheyenne County which denied his
motion to recuse and motion for continuance and granted the motion for summary judgment filed
by the defendants, Sidney Regional Medical Center and Dr. Tracy Ray, P.A. Upon our review of
the record, we observe plain error, and as a result, we vacate the order of the district court, and
remand the cause with directions to dismiss the complaint.




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                                         BACKGROUND
       In February 2014, Assad took his wife, Kathy Assad, to the emergency room because she
was not feeling well. She was prescribed medication and sent home. Her condition deteriorated,
and two days later she was admitted to the hospital. She remained in the hospital until her death
approximately 5 weeks later.
       Assad commenced this action, pro se, in February 2016. He claimed that the treating
physician’s assistant, Tracy Ray, and the medical center where Kathy was treated, Sidney Regional
Medical Center, were negligent in their treatment of her which contributed to her death. The
defendants moved for summary judgment. Assad filed a motion for the trial judge to recuse himself
and a motion to continue the summary judgment hearing. The court denied Assad’s motions and
granted the defendants’ motion for summary judgment. Assad appeals.
                                    STANDARD OF REVIEW
        Plain error may be asserted for the first time on appeal or be noted by an appellate court on
its own motion. Worth v. Kolbeck, 273 Neb. 163, 728 N.W.2d 282 (2007). Plain error exists where
there is an error, plainly evident from the record but not complained of at trial, which prejudicially
affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would
cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the
judicial process. Id.
                                   ASSIGNMENTS OF ERROR
        Assad assigns that the district court erred in (1) denying his motion to recuse, (2) granting
the defendants’ motion for summary judgment, and (3) denying his motion for continuance.
                                            ANALYSIS
        Before addressing Assad’s assigned errors, we recognize plain error. Assad filed the
complaint “Individually and as Special Administrator of the Estate of Kathy Assad, Deceased.”
Because Assad is not a licensed attorney, such a filing constitutes the unauthorized practice of law.
As a result, the complaint is a nullity and must be dismissed.
        The Nebraska Supreme Court recently addressed this issue in Kelly v. Saint Francis
Medical Center, 295 Neb. 650, 889 N.W.2d 613 (2017). There, the plaintiff, Ann Kelly, filed, in
her own behalf and on behalf of the estate of her husband, a pro se wrongful death action against
the medical center, physician, and other “fictitious entities.” In her complaint, she alleged that the
physician provided negligent medical care to her husband, which was the direct cause of his death,
and the medical center provided negligent medical care to him, which was the direct cause of his
death. Kelly was not a licensed attorney and signed the complaint as a “Pro Se Plaintiff.” The
defendants moved to dismiss the complaint in part because Kelly was engaging in the unauthorized
practice of law. The trial court agreed and dismissed the complaint. Kelly appealed.
        On appeal, the Supreme Court recognized that under the rules governing the unauthorized
practice of law, 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. Id. (citing Neb. Ct. R. § 3-1003). The term
“nonlawyer” is defined by the rules as any person not duly licensed or otherwise authorized to


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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. Id. (citing Neb. Ct. R. § 3-1002(A)). 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. Id. (citing Neb. Ct. R. § 3-1001). 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. Id. (citing Neb. Ct. R. § 3-1001(B)).
        Considering the above definitions, the Supreme Court observed that Kelly was a
nonattorney at the time she filed a complaint on behalf of her husband’s estate. In her complaint,
she sought to represent the interests of the estate, and she drafted the complaint and signed it as a
pro se plaintiff. Therefore, the court determined that with this legal document, Kelly was seeking
to “affect the legal rights” of the estate, which constitutes the unauthorized practice of law. See id.
        The Supreme Court further recognized that proceedings in a suit by a person not entitled
to practice are a nullity, and the suit may be dismissed. See id. Therefore, the single act of Kelly
drafting and filing the complaint on behalf of the estate, which constituted the unauthorized
practice of law, was sufficient for the trial court to rule that her complaint was a nullity. See id.
Accordingly, the Supreme Court concluded that the trial court correctly held that Kelly’s complaint
was a nullity. Id. See also Steinhausen v. HomeServices of Neb., 289 Neb. 927, 857 N.W.2d 816
(2015) (because plaintiff was not licensed to practice law in Nebraska, his appeal is a nullity).
        Likewise, in the present case, Assad is not a licensed attorney. Although he filed the
complaint as special administrator of the estate of Kathy (unlike Kelly who filed her complaint “in
her own behalf and on behalf of the Estate”), the filing of the complaint as special administrator
still constitutes the unauthorized practice of law. See Waite v. Carpenter, 1 Neb. App. 321, 496
N.W.2d 1 (1992).
        In Waite, the nonlawyer personal representative of the estate filed five wrongful death
actions for medical malpractice. The trial court dismissed the actions. On appeal we rejected
Waite’s argument that he was representing himself as a party and therefore was not engaged in the
unauthorized practice of law. We noted:
        this is simply a misapprehension of the role of a personal representative. Under Nebraska
        law, a personal representative “is a fiduciary who shall observe the standards of care
        applicable to trustees. . . .” Neb. Rev. Stat. § 30-2464(a) (Reissue 1989). In the various
        “Complaint[s],” facts are alleged which assert predeath injuries by the defendants, or at
        least by some of them, to the decedent. Section 30-2464(c) gives the personal
        representative authority to bring suit on any cause of action which survives the decedent’s
        death. In addition, any action for wrongful death “shall be brought by and in the name of
        the person’s personal representative for the exclusive benefit of the widow or widower and
        next of kin.” Neb. Rev. Stat. § 30-810 (Cum. Supp. 1992).

Id. at 325-26, 496 N.W.2d at 4. The role of a special administrator is similar to that of a personal
representative. “After a special administrator is appointed, the administrator has the same powers
as a personal representative, except the power is limited to the duties prescribed in the trial court’s
order.” In re Estate of Robb, 21 Neb. App. 429, 439-40, 839 N.W.2d 368, 376 (2013). See also


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Neb. Rev. Stat. § 30-2209(33) (Reissue 2016) (including special administrator in the definition of
personal representative) and § 30-2459 (Reissue 2016) (special administrator has duty to collect
and manage the assets of the estate, to preserve them, and deliver them to personal representative
upon his qualification).
        Assad, as special administrator of his wife’s estate, alleges medical malpractice that
resulted in his wife’s death; therefore, like the plaintiffs in Kelly v. Saint Francis Medical Center,
295 Neb. 650, 889 N.W.2d 613 (2017), and Waite v. Carpenter, supra, he seeks recovery for his
wife’s wrongful death under the theory of negligence. But having done so pro se, as special
administrator, his filings are a nullity. As stated in Waite v. Carpenter, supra:
        [T]he personal representative who brings a wrongful death suit is bringing it for the benefit
        of the other heirs, and those persons are entitled to have their legal interests represented by
        one who is trained and licensed to do so. This is not to say that personal representatives
        must be attorneys, but, rather, that one who seeks to represent the legal interests of the
        personal representative must be an attorney. This rule protects the estate, its heirs, and its
        creditors.

Id. at 328, 496 N.W.2d at 5 (1992).
        Therefore, to allow Assad to prosecute this claim as the special administrator of the estate
without securing representation by a lawyer, would constitute the unauthorized practice of law. As
such, Assad’s complaint is a nullity and allowing him to represent the estate in this matter
constitutes plain error. We therefore vacate the order of the district court which entered summary
judgment in favor of the defendants, and remand the cause with directions to the court to dismiss
the complaint.
                                         CONCLUSION
        We find plain error in allowing Assad to maintain this action because he is not a licensed
attorney who filed the complaint on behalf of an entity. Therefore, he engaged in the unauthorized
practice of law, and his complaint is a nullity. As a result, we vacate the order of the district court,
and remand the cause with directions for the court to dismiss the complaint.
                                                                   JUDGMENT VACATED, AND CAUSE
                                                                   REMANDED WITH DIRECTIONS.




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