The plaintiff appeals. On December 14, 1990, this Court decided Hayes v. Brookwood Hospital, 572 So.2d 1251 (Ala. 1990), which overruled Henderson v. Briarcliff Nursing Home, 451 So.2d 282 (Ala. 1984); Brown v. Wheeler, 437 So.2d 521 (Ala. 1983); and Starr v. Doctors Hospital, 426 So.2d 826 (Ala. 1983). In Hayes, we held that the 6-month time limit of Rule 25(a)(1) was not mandatory, but could be enlarged under Rule 6(b) when the delay was the result of "excusable neglect.
In Hayes v. Brookwood Hospital, 572 So. 2d 1251, 1254 (Ala. 1990), this Court held that "the six-month provision of Rule 25(a)(1)[, Ala. R. Civ. P.,] is subject to the general language of Rule 6(b)[, Ala. R. Civ. P.,] allowing the extension of a specified time period upon a determination of excusable neglect." This Court went on to state:
" Based on Hayes v. Brookwood Hospital, 572 So.2d 1251 (Ala. 1990), we find that the trial court improperly dismissed the action. In Hayes, this Court held that, pursuant to Rule 6(b), an "excusable neglect" would warrant an extension of the six-month period set out in Rule 25(a)(1) and that the trial court had discretion in determining whether there had been an excusable neglect.
" The Committee Comments to Rule 25 note that the rule was amended in 1995 to comply with Hayes v. Brookwood Hospital, 572 So.2d 1251 (Ala. 1990). In Hayes, the deceased party's attorney filed a suggestion of death, but failed to move for a substitution within six months.
Instead, a state probate court determines who serves as the decedent's successor or representative of his estate. See ALA. CODE § 43-2-42(a) ; see alsoHenderson v. Briarcliff Nursing Home , 451 So.2d 282, 283–84 (Ala. 1984) (noting that the status of "personal representative" is "judicially conferred"), overruled on other grounds by Hayes v. Brookwood Hosp. , 572 So.2d 1251 (Ala. 1990). Under Rule 25, the party serving the suggestion of death must look to state law, identify the decedent's representative or successor, and notify that party of the death and the lawsuit.
Who acts as a personal representative or successor of Defendant Smyth is a legal determination made by an Alabama state court. See Henderson v. Briarcliff Nursing Home, 451 So. 2d 282, 283-84 (Ala. 1984), overruled on other grounds by Hayes v. Brookwood Hosp., 572 So. 2d 1251 (Ala. 1990) ("The term 'personal representative' includes an 'executor, administrator, successor personal representative, special administrator, and persons who perform substantially the same function under the law governing their status.' Such a status is judicially conferred, . . ." (quoting Ala. Code § 43-8-1(24))).
It is a general rule that "`an attorney's authority to act on behalf of a client ceases on the death of that client.'" Estate of Jones v. State Farm Mut. Auto. Ins. Co., 829 So.2d 170, 171 (Ala.Civ.App. 2002) (quotingBrown v. Wheeler, 437 So.2d 521, 523 (Ala. 1983), overruled on other grounds, Hayes v. Brookwood Hosp., 572 So.2d 1251 (Ala. 1990)). See alsoKissic v. Liberty Nat'l Life Ins. Co., 641 So.2d 250, 251 (Ala. 1994);McDonald v. Womack, 214 Ala. 309, 107 So. 812, (1926).
(The authority of Judi Kissic's attorney to act on behalf of Ronnie Kissic had ceased upon Ronnie Kissic's death. See Brown v. Wheeler, 437 So.2d 521 (Ala. 1983), overruled on other grounds, Hayes v. Brookwood Hospital, 572 So.2d 1251 (Ala. 1990).) On May 3, 1993, Judi Kissic filed a "motion for joinder" to add her two minor children as plaintiffs in the action.
To further the purpose of the rule, which is to prevent the foreclosure or bar of meritorious claims, we have held that a trial court has discretion under the general language of Rule 6(b), A.R.Civ.P., to allow an extension of this period upon a finding of excusable neglect. Hayes v. Brookwood Hosp., 572 So.2d 1251 (Ala. 1990). Conversely, to allow the court discretion to shorten the substitution period would frustrate the spirit and purpose of Rule 25.
McRae, 845 So. 2d at 785. Our supreme court reasoned in that case that, generally speaking, " ‘ "an attorney's authority to act on behalf of a client ceases on the death of that client," ’ " id. (quoting Estate of Jones v. State Farm Mut. Auto. Ins. Co., 829 So. 2d 170, 171 (Ala. Civ. App. 2002), quoting in turn Brown v. Wheeler, 437 So. 2d 521, 523 (Ala. 1983) (overruled on other grounds by Hayes v. Brookwood Hosp., 572 So. 2d 1251 (Ala. 1990) )), and opined that the filing of a notice of appeal by a deceased person was " ‘not just "a mere irregularity, but a complete and radical defect." ’ " McRae, 845 So. 2d at 785 (quoting Brantley v. Fallston Gen. Hosp., Inc., 333 Md. 507, 511, 636 A.2d 444, 446 (1994), quoting in turn Owings v. Owings, 3 G. & J. 1, 4 (Md. 1830) ).