Duke v. Pickett, 71--003

• Decision Date: 23 February 1972
• Docket Number: No. 71--003,71--003
• Citation: 494 P.2d 120,30 Colo.App. 438
• Parties: Leroy A. DUKE and Frances K. Duke, Plaintiffs-Appellees, v. Orville C. PICKETT and Gentle Breeze Mobile Home Court, Inc., Defendants-Appellants, and Vivian E. Strawn et al., Appellants. . I
• Court: Colorado Court of Appeals

Page 120

494 P.2d 120

30 Colo.App. 438

Leroy A. DUKE and Frances K. Duke, Plaintiffs-Appellees, v. Orville C. PICKETT and Gentle Breeze Mobile Home Court Inc., Defendants-Appellants and Vivian E. Strawn et al., Appellants.

No. 71--003.

Colorado Court of Appeals, Div. I.

Feb. 23, 1972.

Tinsley, Frantz & Heady, Mansur Tinsley, Lakewood, for plaintiffs-appellees.

John M. Cogswell, Denver, for defendants-appellants.

DWYER, Judge.

The appellants, Vivian E. Strawn, Ruby A. Pickett, and Inez L. Pyle, have appealed from an order denying a motion to substitute said appellants as parties-defendants for the deceased defendant, Orville C. Pickett, in an action in which Pickett was both a defendant and a counterclaimant at the time of his death. These individual appellants and the corporate appellant, Gentle Breeze Mobile Home Court, Inc., have also appealed the judgment dismissing the action as to all defendants.

The factual background of this case is stated in Duke v. Pickett, 168 Colo. 215, 451 P.2d 288. It appears from that opinion that the Dukes (plaintiffs-appellees) 'transferred a mobilehome court they owned to the defendants--the Picketts--in exchange for a promissory note secured by a chattel mortgage on furniture and appliances in, and a second deed of trust on, an apartment building in east Denver.' Upon the basis of the record, which established that the Picketts had fraudulently misrepresented the value of the note, the Supreme Court held that the Dukes were entitled to rescind the transaction. The case was remanded to the trial court for the entry of an appropriate judgment, and the trial court thereafter entered judgment vesting title to the real estate in the Dukes.

This judgment of the trial court was affirmed in Pickett v. Duke, 170 Colo. 199, 460 P.2d 232, and the case was remanded with the following directions:

'. . . the only matter remaining for the trial court's consideration is to conduct the hearing as previously ordered. Such hearing is to be limited to a complete accounting and an equitable adjustment between the parties. To this end the parties may file pleadings in the trial court within time limits set by that court wherein the parties may assert their respective contentions, and whereby the issues to be determined by the court may be framed in an orderly fashion.'

On remand, the Dukes filed a supplemental complaint alleging that defendant Orville C. Pickett had received rents of $135,000 during the time he was in possession of the property and demanded an accounting for such rents. In answer, Pickett denied that he was obligated to account for such profits and alleged that his liability was limited to the reasonable rental value of the mobile home park. He also filed a counterclaim demanding judgment for $90,000 on the theory that he was entitled to recover this sum because of an alleged increase in the value of the mobile home park during the time he was in possession.

The defendant, Orville C. Pickett, died intestate on February 15, 1970. His first wife, Mable A. Pickett, was a defendant in the action when it was originally filed. She died prior to the first appeal to the Supreme Court, and the action, in some manner not disclosed by the record here, was continued by and against Orville C. Pickett alone.

On June 2, 1970, Vivian E. Strawn, a daughter of the decedent Pickett, filed a motion to substitute Pickett's heirs-at-law (the appellants) as defendants in place of the deceased defendant Pickett. Subsequently, an order of distribution under the Small Estates Act was filed in support of the motion. The order recited that no personal representative had been appointed and that no useful purpose would be served by such an appointment and ordered the counterclaim which Pickett has asserted in this action distributed to the individual appellants. The trial court denied the motion for substitution.

I.

The first issue on appeal is whether the individual appellants are proper parties for substitution under the provisions of C.R.C.P. 25(a)(1). This rule provides:

'If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party . . ..'

The provisions of C.R.C.P. 25(a)(1) for substitution of parties are procedural. 3B J. Moore, Federal Practice 25.04 (2d ed.); McManus v. Lykes Brothers Steamship Company, 275 F.Supp. 361. The rule does not attempt to state what actions survive the death of a party nor does it attempt to designate the 'proper parties' who may be substituted. This is a function of the substantive law. The applicable statute (C.R.S.1963, 153--1--9) provides for the survival of actions of the type here involved, and it also provides that a pending action which survives the death of a litigant may be continued by or against the Personal representative of the deceased. The term 'personal representative' is defined by the applicable statute as an...