Easter Seal Soc. for Disabled Children v. Berry

• Decision Date: 14 June 1993
• Docket Number: No. 92-PR-263.,92-PR-263.
• Citation: 627 A.2d 482
• Parties: EASTER SEAL SOCIETY FOR DISABLED CHILDREN, et al., Appellants, v. Jeffrey R. BERRY, et al., Appellees.
• Court: D.C. Court of Appeals

627 A.2d 482

EASTER SEAL SOCIETY FOR DISABLED CHILDREN, et al., Appellants, v. Jeffrey R. BERRY, et al., Appellees.

No. 92-PR-263.

District of Columbia Court of Appeals.

Argued April 26, 1993.

Decided June 14, 1993.

As Revised June 25, 1993.

Jeffrey I. Zuckerman, Washington, DC, for appellants.

Robert L. Weinberg, with whom Raymond C. Ortman, Jr., Nathaniel S. Preston, and Lipman Redman, Washington, DC, were on the brief for appellees.

Before STEADMAN, SCHWELB, and KING, Associate Judges.

KING, Associate Judge:

Appellants appeal from a Superior Court order dismissing with prejudice their complaint challenging the validity of a will. Appellants contend that the trial court erred in dismissing their complaint either on the ground that it was not filed in a timely manner or that it was improperly verified.¹ We agree with appellants and reverse the order of the trial court.

I.

The action in the trial court was initiated to contest the validity of the Last Will and Testament of Sue L. Firestone, dated February 10, 1987, on the ground that Ms. Firestone was not "of sound and disposing mind" when she executed the will. The 1987 will purported to replace Ms. Firestone's prior will, dated September 10, 1970, which had directed that her estate, after payment of all just debts and funeral expenses, be distributed to a number of charities specified in that will. Appellants are beneficiaries named in Ms. Firestone's 1970 will, who were not named as beneficiaries in the 1987 will.

Following Ms. Firestone's death on January 11, 1991, the Superior Court appointed appellee Jeffrey R. Berry on April 24, 1991, as the personal representative of Ms. Firestone's estate, and admitted her will to probate. See D.C.Code §§ 20-311, -312 (1989). The notice of appointment was first published on May 9, 1991, and it provided, inter alia, that any objections to the probate of the decedent's will must be filed on or before November 9, 1991. November 9, 1991 was a Saturday.

On November 12, 1991, appellants filed a complaint contesting the validity of the 1987 will, contending that Ms. Firestone was not of sound mind when she executed it. Appellees filed a Motion to Dismiss Complaint to Contest the Validity of a Will for Lack of Jurisdiction. They argued that the complaint should be dismissed because: 1) the complaint was not filed within the six-month period prescribed by statute, and 2) the complaint violated the statutory verification requirement since it was verified by an attorney and not by the actual party. In support of their first point, appellees argued that while anyone may file a verified complaint to test the validity of a will "within 6 months following notice by publication of the appointment ... of a personal representative," see D.C.Code § 20-305 (1989), that provision is a "substantive statutory provision enacted by the Council of the District of Columbia" creating the right of action that appellants purport to assert, and is therefore jurisdictional. Accordingly, appellees argued that even though the six-month time period for contesting the will ended on a Saturday, Super.Ct.Civ.R. 6(a) cannot justify filing on the following Tuesday (Monday was Veterans' Day, a legal holiday) because Super.Ct.Civ.R. 82 provides that the Superior Court Rules of Civil Procedure "shall not be construed to extend ... the jurisdiction of this court." Under appellees' interpretation, the complaint would have been timely only if it had been filed on or before November 9, 1991.

In support of their second argument, i.e., that verification must "be made and executed by the party seeking to challenge the will," appellees contended in their motion to dismiss that verification by appellants' trial counsel was inadequate. They maintained that officers of the plaintiff corporations, the actual parties to the action, should have verified the complaint, and that failure to provide such verification rendered the complaint insufficient to invoke the jurisdiction of the court under § 20-305.

Appellants, in their opposition to the motion to dismiss, contended that the complaint was timely since D.C.Code § 20-305 permits a complaint to be filed "within 6 months" of the publication of a personal representative, and the six-month time period ended on a Saturday. Appellants maintained that Super.Ct.Civ.R. 6(a) extended the time for filing to November 12, 1991, the day of actual filing, because there was an intervening Sunday and a Monday holiday. They also argued that verification by an attorney was proper under Super.Ct.Civ.R. 9-I, which expressly permits an attorney to provide verification when a corporation is a party.

After the motion and response were filed, the trial court entered an order which stated: "Upon consideration of Personal Representative Jeffrey R. Berry's and defendant legatees' Motion to Dismiss Complaint to Contest the Validity of a Will for Lack of Jurisdiction, and any opposition thereto, it is this 5th day of February, 1992, hereby ORDERED that the Motion to Dismiss be GRANTED, and the Complaint is hereby DISMISSED with prejudice." We conclude that the trial court erred in so ordering and we therefore reverse.

II.

Appellees' contention that Super.Ct.Civ.R. 6(a) is inapplicable to the circumstances of this case is based on two separate and independent grounds. First, appellees argue that the six-month filing requirement is "jurisdictional," and therefore Rule 6(a) cannot apply to extend that time period since Rule 82 provides that the rules of court may not be construed to extend the jurisdiction of the trial court. Second, appellees argue that even if the filing requirement is a statute of limitation, rather than a jurisdictional element, Rule 6(a) should not be read to apply to statutes of limitation. We reject both contentions.

a.

Super.Ct.Civ.R. 6(a) provides that:

in computing any period of time prescribed or allowed by these rules, by order of the court, or by applicable statute, the day of the act ... from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, a Sunday, or a legal holiday, ... in which event the period runs until the end of the next day which is not one of the aforementioned days.

(Emphasis added). Appellees first contend that Rule 6(a) is inapplicable to D.C.Code § 20-305, because the six-month period prescribed in the statute is a jurisdictional element of the right of action initiated by appellants. Appellees maintain that because "the very statutory sentence which creates the cause of action to challenge a will includes the condition for its exercise within the prescribed six-month period," that six-month period is a jurisdictional element of the cause of action as opposed to a statute of limitation. In support for that position, appellants rely upon cases describing "statutes of creation." See, e.g., Ewing v. Risher, 176 F.2d 641, 644 (10th Cir. 1949) (in a statute of creation, the time limitation "defines and controls the right of action and the right ceases to exist if not asserted within the time limit fixed in the statute therefor"); Matheny v. Porter, 158 F.2d 478, 479 (10th Cir.1946) (federal price control statute "is a statute of creation, and when the period fixed by its terms has run, the substantive right and the corresponding liability end.... The commencement of the action within the time is an indispensable condition of the liability");² see also 54 C.J.S. Limitation of Actions § 5 (1987) ("a distinction exists between statutes of limitation and special statutory limitations qualifying a given right in which time is made an essence of the right created.... statutes which create substantive rights unknown to common law and in which time is made an inherent element of the right so created, are not `statutes of limitation' in the sense of merely suspending the remedy and not the right of action").

Appellees then attempt to distinguish between "statutes of creation," i.e., those laws creating a cause of action which include a time limitation in which to initiate the action, and statutes which permit an action to be initiated pursuant to a general statute of limitation e.g., any personal injury claim must be brought within three years of the date of injury (D.C.Code § 12-301(8) (1989)). They concede that there is no District of Columbia authority applying this distinction. Indeed, no such distinction is ordinarily drawn. The general practice is to treat all time limitations as statutes of limitation. See 4A CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1163 (1987) (discussing the view that Rule 6(a) "is inapplicable to newly-created statutory remedies" under the minority view which holds that the computation provisions of Rule 6 do not apply to statutes of limitation.) We conclude, for the reasons discussed below, that the distinction advanced by appellees is without significance, and that the case law provides significant support for applying Rule 6(a) in the circumstances of this case.

In Watson v. Scheve, 424 A.2d 1089 (D.C.1980), the applicable statute permitted the owner of property sold for taxes to redeem such property "at any time within two years after the last day of sale." Id. at 1092 (quoting D.C.Code § 47-1005). The two years from the last day of sale ended on a Sunday. The court ruled that the property could properly be redeemed on the following Monday. Id. Watson involved a law that would, under appellees' definition, be characterized as a statute of creation since the statute gave the property owner the right to redeem property and simultaneously limited the time in which he was authorized to pursue that right. Similarly in the instant case, D.C.Code § 20-305 defines the right to contest a will and limits the time within which a contest can be instituted. Thus, we conclude, based on Watson, that where a statute grants a right and...