Currier v. Sutherland, No. 07CA1263.

• Decision Date: 12 June 2008
• Docket Number: No. 07CA1263.
• Citation: 215 P.3d 1155
• Parties: David H. CURRIER and Heather S. Schultz, Plaintiffs-Appellants, v. Michael SUTHERLAND, special administrator of the Estate of Eloy Lopez; Estate of Eloy Lopez; and State Farm Mutual Automobile Insurance Company, Defendants-Appellees.
• Court: Colorado Court of Appeals

215 P.3d 1155

David H. CURRIER and Heather S. Schultz, Plaintiffs-Appellants, v. Michael SUTHERLAND, special administrator of the Estate of Eloy Lopez; Estate of Eloy Lopez; and State Farm Mutual Automobile Insurance Company, Defendants-Appellees.

No. 07CA1263.

Colorado Court of Appeals, Div. III.

June 12, 2008.

Stone and Rosen, P.C., Andrew Rosen, Boulder, Colorado, for Plaintiffs-Appellants.

Bayer & Carey, P.C., Gary L. Palumbo, Peter M. Spiessbach, Denver, Colorado, for Defendants-Appellees Michael Sutherland and Estate of Eloy Lopez.

Levy Morse & Wheeler, P.C., Marc R. Levy, Joshua O. Gregory, Englewood, Colorado, for Defendant-Appellee State Farm Mutual Automobile Insurance Company.

Opinion by Chief Judge DAVIDSON.

In this personal injury action, plaintiffs, David H. Currier and Heather S. Schultz, appeal from the trial court's judgment dismissing with prejudice for failure to file within the applicable statute of limitations their personal injury complaint against defendants, Michael Sutherland, special administrator of the Estate of Eloy Lopez; the Estate of Eloy Lopez; and State Farm Mutual Automobile Insurance Company. The primary question presented is whether a trial court has subject matter jurisdiction so as to allow the filing of an amended complaint even when, at the time of the filing of the original complaint, the named defendant was deceased. We conclude that it does, and in doing so, we disagree with Jenkins v. Estate of Thomas, 800 P.2d 1358 (Colo.App.1990), and decline to follow it. However, because we also conclude that the amended complaint was untimely filed and did not relate back pursuant to C.R.C.P. 15(c), we agree with the trial court's dismissal for failure to comply with the statute of limitations, and, therefore, we affirm.

On August 15, 2002, plaintiffs were injured when they were riding their bicycles and were struck by a motor vehicle driven by the decedent, Eloy Lopez. On August 11, 2005, just four days prior to the expiration of the three-year statute of limitations, plaintiffs brought this action naming Lopez as the sole defendant. However, Lopez had died on January 17, 2005, almost seven months before plaintiffs filed suit. Plaintiffs first learned of this fact on November 18, 2005, while attempting to effectuate service. At that time, the three-year statute of limitations applicable to plaintiffs' claims had run.

Thereafter, plaintiffs petitioned for an estate to be opened for the decedent, and Michael Sutherland was appointed as special administrator for the Estate of Eloy Lopez. Plaintiffs then filed an amended complaint on March 6, 2006, naming the Estate of Eloy Lopez and State Farm, Lopez's automobile insurer at the time of the accident, as defendants. Subsequently, plaintiffs filed a second amended complaint which also named Sutherland as a defendant. Defendants moved for summary judgment on statute of limitations grounds.

In response, plaintiffs relied on section 13-80-111(1), C.R.S.2007, which states in relevant part that an action timely filed but terminated for lack of subject matter jurisdiction may be refiled as a new action within ninety days after the termination of the original action. Plaintiffs did not dispute that the complaint was untimely filed but, citing the rule announced in Jenkins, asserted that it could be refiled as a new action because the trial court lacked subject matter jurisdiction. Thus, plaintiffs agreed with the dismissal, but argued that it should have been for lack of subject matter jurisdiction rather than on statute of limitations grounds.

The trial court rejected plaintiffs' argument. Because plaintiffs did not name these defendants within three years of the accident, the court concluded that plaintiffs' claims against them were barred by the applicable three-year statute of limitations set forth in section 13-80-101(1)(n)(I), C.R.S. 2007. The court refused to dismiss the case on jurisdictional grounds, finding that such an outcome "would result in a miscarriage of justice" because it would fail to recognize that the case was not timely filed against the present defendants. Plaintiffs then filed this appeal.

We review de novo a trial court's rulings on motions for summary judgment or dismissal on statute of limitations grounds. See Morrison v. Goff, 91 P.3d 1050, 1052 (Colo.2004); Harrison v. Pinnacol Assurance, 107 P.3d 969, 971 (Colo.App.2004); see also Ashton Props., Ltd. v. Overton, 107 P.3d 1014, 1017 (Colo.App.2004) (de novo review of a trial court's legal conclusions on a motion to dismiss for lack of subject matter jurisdiction). Based on somewhat different reasoning, we agree with the result reached by the trial court.

I. Plaintiffs' Argument for Application of the Nullity Theory

It is not disputed that the revival provisions of section 13-80-111 permits the filing of a new complaint when an earlier complaint is dismissed for lack of subject matter jurisdiction. However, the statute does not apply when, as here, the earlier complaint has been dismissed with prejudice for failure to comply with the applicable statute of limitations. See SMLL, L.L.C. v. Peak Nat'l Bank, 111 P.3d 563, 565 (Colo.App. 2005); see also Broker House Int'l, Ltd. v. Bendelow, 952 P.2d 860, 864 (Colo.App.1998).

In light of these limitations of the revival statute, plaintiffs urged the trial court and now contend on appeal that their action should have been dismissed for lack of subject matter jurisdiction rather than on statute of limitations grounds. Specifically, plaintiffs argue that, because Lopez was already deceased, the original complaint conferred no subject matter jurisdiction on the court and was a nullity. Consequently, plaintiffs contend that the trial court had no authority to allow the filing of their amended complaint and, therefore, they could file a new complaint within the allowable ninety-day window of section 13-80-111.

Under the nullity theory urged by plaintiffs, if a complaint named as the only defendant a non-existent person, the action was void ab initio. The rule apparently was based on language in an 1881 opinion which concluded that a court can acquire no subject matter jurisdiction until a party defendant is brought before it who actually or legally exists or is capable of being sued. See Ash v. Guie, 97 Pa. 493 (1881). The supportive reasoning was that if a defendant does not have the ability to be sued, there are no adversarial parties; therefore, no real case or controversy exists; and, consequently, the court lacks subject matter jurisdiction. See, e.g., Bavel v. Cavaness, 12 Ill.App.3d 633, 299 N.E.2d 435, 437-38 (1973) ("It is axiomatic that in order to have a civil suit in tort there must be a plaintiff and a defendant and it is likewise clear that the prime requisite as to parties, whether plaintiffs or defendants, is that they be either a natural or artificial person and that the capacity to be sued exists only in persons in being and not those who are dead or have not yet been born.").

Under this theory, because decedents are not legal entities capable of being sued, a complaint naming a decedent, ipso facto, confers no subject matter jurisdiction on the court. See Vorhees v. Baltazar, 283 Kan. 389, 153 P.3d 1227, 1232-33 (2007) (discussing nullity theory and its history). Furthermore, under this reasoning, the original complaint could not initiate an action, and, therefore, a complaint naming a decedent could not be amended under C.R.C.P. 15 to add the decedent's estate as a defendant because there was nothing to amend or to which an amendment could relate back. See Mercer v. Morgan, 86 N.M. 711, 526 P.2d 1304, 1306 (App.1974) (amendment adding a duly appointed personal representative after the running of the statute of limitations did not relate back because there was no pending action to which it could relate).

In Jenkins, which involved substitution of parties under C.R.C.P. 25, a division of this court followed the nullity theory. The issue in Jenkins was whether the plaintiff could substitute the decedent's estate as a party defendant pursuant to the terms of C.R.C.P. 25 when the decedent had died prior to the filing of the lawsuit. In determining that the estate could not be substituted, the division properly concluded that substitution under C.R.C.P. 25 only applied when a named party dies during a pending action. However, the division also stated that, in order for a court to have subject matter jurisdiction, there must be a "true party," that is, a legal entity capable of suing or being sued. Jenkins, 800 P.2d at 1359. Thus, the division concluded that there was no legal entity named as a party defendant and, therefore, "no controversy between legal entities, . . . no subject matter to be litigated, and the court was without jurisdiction to proceed." Id.

No appellate decision in Colorado since Jenkins has squarely addressed the continuing viability of the nullity theory in the context of a complaint naming a defendant already deceased at the time of filing. We are aware that in Defelice v. Johnson, 931 P.2d 548, 550 (Colo.App. 1996), a personal injury action similar in posture to the case here, another division of this court concluded that when a plaintiff names a defendant who had died prior to the action and no personal representative has been appointed, then there is no legal entity that can be named as defendant and, therefore, "no jurisdiction to proceed." However, although the division cited Jenkins, its analysis did not discuss or refer to subject matter jurisdiction. Equally important, moreover, it did not treat the original complaint as a nullity. Indeed, the division proceeded without discussion to consider the question of whether, under C.R.C.P. 15(c), the plaintiffs amended complaint related back to the original complaint. See Defelice, 931 P.2d at 550.

II. The Trial Court Had Subject Matter Jurisdiction to Allow Plaintiffs' Amended Complaint under C.R.C.P. 15(a)

We...