Notices of Appeal Filed for Estates by Nonlawyers Are Unauthorized Practice, but Not Automatic Nullities When Counsel Timely Appears

1. Introduction

In Patrick Willhoite, individually and as the of The Estates of Margaret Ruth Willhoite and Michael Willhoite, and Jessie Gafeller, individually v. Genesis Health System, Dean A. Bunting, M.D., Joseph M. Phelan, M.D., Radiology Group, P.C., S.C., Steven D. Lamer, D.O., Tenille M. Miller, A.R.N.P., the Iowa Supreme Court confronted two issues arising out of a wrongful-death medical malpractice action:

  • Appellate-jurisdiction / representation issue: Whether the estates’ appeal should be dismissed because the notice of appeal was signed and filed by Patrick Willhoite (a nonlawyer) in his capacities as executor/administrator.
  • Merits / certificate-of-merit issue: Whether dismissal with prejudice was proper under Iowa Code section 147.140 (2020) where plaintiffs timely served “certificates of merit” signed by experts but lacking a jurat/notarial act and lacking an “under penalty of perjury” declaration.

The plaintiffs/appellants were two individual family members and two estates (represented in the district court by attorneys throughout the case, though a notice of appeal was initially signed by Patrick). The defendants/appellees were Genesis Health System and multiple medical providers (collectively “Genesis”).

2. Summary of the Opinion

The court resolved the two questions differently:

  • Motion to dismiss appeal denied (unanimous as to Part II): Filing a notice of appeal on behalf of an estate by a nonlawyer executor/administrator is the unauthorized practice of law, but the notices are not necessarily “nullities,” and dismissal is not required where counsel appears and the unauthorized practice ceases.
  • Dismissal on section 147.140 affirmed by operation of law (Part III): The justices split 3–3 on whether the district court correctly dismissed for noncompliance with section 147.140. Under Iowa Code section 602.4107 (2026) and Juckette v. Iowa Utils. Bd., the tie vote resulted in affirmance “by operation of law,” without a majority resolution of the substantive certificate-of-merit question.

3. Analysis

A. Precedents Cited

1. Estate of Tornell v. Trinity Health Corp., 31 N.W.3d 162 (Iowa 2026)

Tornell is the opinion’s centerpiece for the appellate-jurisdiction question. There, a nonlawyer estate administrator filed and litigated a pro se wrongful-death suit. Iowa held:

  • Estates are legal entities distinct from their administrators/beneficiaries; therefore, a nonlawyer cannot represent an estate in court without engaging in unauthorized practice.
  • But the proper remedy is not automatic “nullity” and immediate dismissal; courts should allow a reasonable time (at least 30 days in Tornell) for counsel to appear.

In Willhoite, the court extends Tornell’s remedial approach from district-court pleadings to appellate notices of appeal filed for estates.

2. Comm. on Pro. Ethics & Conduct of the Iowa State Bar Ass'n v. Baker, 492 N.W.2d 695 (Iowa 1992)

Baker supplied the broader definitional premise: “representing another” by appearing and making filings in court is “obvious[ly]” the practice of law. The court invoked that principle to classify Patrick’s filing of notices of appeal for the estates as unauthorized practice.

3. Out-of-state notice-of-appeal authorities

The court used several non-Iowa decisions as persuasive support that signing and filing a notice of appeal on behalf of another entity constitutes legal representation:

  • Boydston v. Strole Dev. Co., 969 P.2d 653 (Ariz. 1998) (en banc) (notice of appeal defective when signed by nonlawyers for a corporation).
  • Alexander & Baldwin, LLC v. Armitage, 508 P.3d 832 (Haw. 2022) (unauthorized representation in filing notice of appeal for an entity).
  • Brown v. Coe, 616 S.E.2d 705 (2005), clarified by, 620 S.E.2d 323 (S.C. 2005) (filing notice of appeal for an estate constitutes practice of law).
  • Contra: City of Downey v. Johnson, 69 Cal. Rptr. 830 (Ct. App. 1968) (suggesting a nonlawyer executor had capacity to sign/file notice of appeal). Iowa cites it as a “but see,” signaling Iowa’s contrary view.

4. Miller v. Catholic Health Initiatives-Iowa, Corp., 7 N.W.3d 367 (Iowa 2024)

Miller drove the litigation posture: it held an expert’s unsworn letter did not satisfy section 147.140’s “affidavit” requirement. Genesis relied on Miller to argue the plaintiffs’ 2020 “certificates” (signed but not notarized and not made under penalty of perjury) were not “affidavits.”

Importantly, Willhoite does not produce a majority holding clarifying Miller’s application to the plaintiffs’ specific certificate format, because the court split 3–3 on the merits.

5. Juckette v. Iowa Utils. Bd., 992 N.W.2d 218 (Iowa 2023) and Iowa Code § 602.4107 (2026)

These authorities provide the procedural consequence of an evenly divided court: the lower court is affirmed “by operation of law.” Willhoite uses them to explain why the dismissal stands despite no majority agreement on the certificate-of-merit issue.

B. Legal Reasoning

1. Unauthorized practice: estates are distinct entities

Following Tornell, the court treated each estate as a separate legal person from Patrick. Thus, even though Patrick was executor/administrator, his act of signing and filing the notice(s) of appeal for the estates constituted the unauthorized practice of law. The court did not accept fiduciary status as a substitute for a law license.

2. Remedy: no automatic nullity when counsel timely appears

The core doctrinal move is remedial. Genesis sought the harsh remedy of treating the estates’ notices of appeal as nullities and dismissing the estates from the appeal. The court rejected that approach by applying Tornell:

  • The judicial system’s objectives are (a) stopping unauthorized practice and (b) allowing disputes to be resolved on the merits when counsel timely appears.
  • Here, those objectives were met because: (i) counsel had appeared throughout the district court case; (ii) the amended notice of appeal was filed through an attorney’s e-filing account; and (iii) appellate counsel (Matthew Sease) appeared within weeks and handled all subsequent filings, with no continued pro se practice by Patrick.

Accordingly, the court denied the motion to dismiss the estates’ appeal.

3. Merits issue left unresolved due to a 3–3 split

On whether the 2020 expert-signed “certificates” satisfied section 147.140’s “affidavit” requirement—especially after Miller—the court produced no controlling majority analysis. The district court’s dismissal with prejudice therefore remained in place only because Iowa procedure treats a tie vote as an affirmance.

C. Impact

1. Practical appellate rule for estates: defect is curable; dismissal is not automatic

The precedential effect of Willhoite is strongest on the jurisdictional/remedial issue (Parts I, II, IV). After Willhoite:

  • Rule: A nonlawyer executor/administrator who signs and files a notice of appeal for an estate engages in unauthorized practice of law.
  • Remedy: The notice need not be treated as void per se; courts should focus on ending unauthorized practice and permitting the appeal to proceed if counsel appears and takes over within a reasonable time.

This approach reduces the risk that an otherwise timely appeal will be forfeited solely due to a signature/filing defect attributable to a fiduciary’s misunderstanding—so long as licensed counsel promptly enters and controls the litigation.

2. Continued uncertainty on what qualifies as a section 147.140 “affidavit” post-Miller

Because Part III produced no majority, Willhoite does not settle whether an expert-signed certificate without a jurat and without an “under penalty of perjury” declaration can ever constitute an “affidavit” under section 147.140, nor does it settle waiver/estoppel theories raised by plaintiffs. Litigants should assume Miller will be invoked aggressively and should ensure compliance in a form that is unmistakably an “affidavit” (i.e., notarized or executed as a permissible unsworn declaration where authorized).

3. Litigation-conduct implications

The case highlights two procedural pressure points:

  • Late dispositive motions triggered by intervening precedent: Genesis moved to dismiss after Miller, close to trial under the scheduling plan’s dispositive-motion deadline, illustrating how certificate-of-merit issues can reemerge late when the law clarifies.
  • Representation continuity matters: The court relied heavily on the reality that attorneys remained counsel of record and that appellate counsel appeared quickly, making it easier to deny dismissal of the estates’ appeal.

4. Complex Concepts Simplified

  • Estate as a separate “legal entity”: Even if you manage the estate (executor/administrator), the estate is treated like its own “person” in court. Representing it is representing “someone else.”
  • Unauthorized practice of law: Doing legal work for another person/entity—like signing and filing court documents on their behalf—without being a licensed attorney.
  • Notice of appeal: The document that starts an appeal. Errors in who signs/files it can create serious problems, but under this decision they may be curable when counsel promptly steps in.
  • Affidavit: Traditionally, a written statement sworn under oath before a notary (jurat) or otherwise made in a legally recognized sworn/penalty-of-perjury form. Iowa’s section 147.140 requires an “affidavit” from an expert early in many malpractice cases.
  • Affirmed by operation of law (tie vote): When the supreme court is evenly split, the lower court’s judgment stands, but the tie does not produce a majority rule explaining how the underlying legal question should be decided in future cases.

5. Conclusion

Willhoite establishes (and concretely applies) a remedial principle for appellate practice involving estates: while a nonlawyer executor/administrator commits unauthorized practice by filing a notice of appeal for an estate, that defect does not automatically nullify the appeal when licensed counsel appears and takes over, thereby halting the unauthorized practice and allowing merits review.

On the certificate-of-merit front, the decision underscores the high stakes of strict compliance with Iowa Code section 147.140 after Miller, but leaves the precise boundary of “affidavit” compliance unresolved due to the court’s 3–3 split, with the district court’s dismissal affirmed only by operation of law.