Jenkins v. Estate of Thomas
Decision Date | 11 October 1990 |
Docket Number | No. 89CA1214,89CA1214 |
Citation | 800 P.2d 1358 |
Parties | Lewis H. JENKINS, Plaintiff-Appellant, v. The ESTATE OF Nicholas A. THOMAS, Defendant-Appellee. . IV |
Court | Colorado Court of Appeals |
Calvert & Bryant, Randall M. Calvert, Englewood, for plaintiff-appellant.
Hall & Evans, Eugene O. Daniels and Malcolm S. Mead, Denver, for defendant-appellee.
Opinion by Judge METZGER.
Plaintiff, Lewis H. Jenkins, appeals the trial court judgment dismissing this action with prejudice based on his failure to comply with C.R.C.P. 25(a)(1). We affirm in part, reverse in part, and remand the cause with instructions.
Decedent, Nicholas A. Thomas, died January 20, 1984, and his estate was closed September 13, 1984; the personal representative was discharged October 15, 1984. Plaintiff, on June 30, 1986, filed his complaint, alleging negligence against the decedent based upon an automobile accident which had occurred between plaintiff and decedent on March 18, 1983.
Plaintiff served the former personal representative of decedent's estate in November 1987 without having taken any steps to seek the reopening of the estate. See § 15-12-1008, C.R.S. (1987 Repl.Vol. 6B). Thereafter, plaintiff attempted to substitute decedent's estate as party defendant pursuant to C.R.C.P. 25. The trial court dismissed the action with prejudice, concluding that plaintiff had failed to comply with C.R.C.P. 25(a)(1) because he had not substituted a party defendant within 90 days after the suggestion of decedent's death had been made part of the record.
Plaintiff contends that the trial court erred in determining that he failed to follow the requirements of C.R.C.P. 25(a)(1). In our view, this argument is misplaced because we conclude that C.R.C.P. 25 is not applicable to the facts here.
C.R.C.P. 25(a)(1), upon which both parties and the trial court relied, provides:
There are no Colorado cases which deal with the issue whether C.R.C.P. 25 applies to an action brought against a dead person. See R. Hardaway & S. Hyatt, Colorado Civil Rules Annotated § 25.2 (2d ed. 1985). However, those cases interpreting Fed.R.Civ.P. 25(a)(1) ( ) have held uniformly that the party substitution mechanisms of that rule apply only if a true party to a pending action dies during its pendency and that these mechanisms are not available if the party named in the suit had died before the action was commenced. See Mizukami v. Buras, 419 F.2d 1319 (5th Cir.1969); Banakus v. United Aircraft Corp., 290 F.Supp. 259 (S.D.N.Y.1968); Moul v. Pace, 261 F.Supp. 616 (D.Md.1966); Chorney v. Callahan, 135 F.Supp. 35 (D.Mass.1955); 3B Moore's Federal Practice 25.02 (2d ed.1987); 7C C. Wright & A. Miller, Federal Practice & Procedure § 1951 (1986).
Since the evidence is undisputed that decedent had died before this action was instituted, we hold that C.R.C.P. 25(a)(1) is not applicable here.
The question remains, however, whether plaintiff's motion to substitute decedent's estate as a party defendant was properly denied. We conclude that it was.
For litigation there must be a controversy and for a controversy there must be adverse parties. Thus, generally, it is indispensable that there be a named plaintiff and a named defendant in order for a trial court to have subject matter jurisdiction.
As our supreme court noted in People in Interest of R.D.S., 183 Colo. 89, 514 P.2d 772 (1973): Thus, actions may be brought only by...
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Moore v. Luther
...likewise. See Gregory v. DiCenzo, 713 A.2d 772 (R.I. 1998) (lawsuit brought on behalf of deceased plaintiff void); Jenkins v. Estate of Thomas, 800 P.2d 1358 (Colo. App. 1990) (no jurisdiction over case involving predeceased The rationale is that because a decedent does not have the capacit......
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Currier v. Sutherland
...This split of authority is evident even within our own court of appeals' decisions on the issue. Compare Jenkins v. Estate of Thomas, 800 P.2d 1358 (Colo.App.1990), and Defelice v. Johnson, 931 P.2d 548 (Colo.App.1996)(holding that a court lacks jurisdiction to proceed where the defendant h......
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People in Interest of E.E.A. v. J.M.
...witnesses, and to appeal in his own right. People in Interest of R.D.S., 183 Colo. 89, 514 P.2d 772 (1973); Jenkins v. Estate of Thomas, 800 P.2d 1358 (Colo.App.1990). Pursuant to § 13-22-101, C.R.S. (1987 Repl. Vol. 6A), any person under the age of 18 may not sue or be sued without being r......
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Currier v. Sutherland, No. 07CA1263.
...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......