Rennie v. Freeway Transport

• Decision Date: 11 March 1982
• Docket Number: No. A7802-01952,A7802-01952
• Citation: 55 Or.App. 1008,640 P.2d 704
• Parties: Richard RENNIE, as administrator of the Estate of Eugene David Rennie, and in his own individual capacity, Appellant-Cross-Respondent, v. FREEWAY TRANSPORT, Leon Spada, Ernest Spada, and Sam Terese, Respondents-Cross-Appellants. ; CA 19045.
• Court: Oregon Court of Appeals

Page 704

640 P.2d 704

55 Or.App. 1008

Richard RENNIE, as administrator of the Estate of Eugene

David Rennie, and in his own individual capacity, Appellant-Cross-Respondent, v. FREEWAY TRANSPORT, Leon Spada, Ernest Spada, and Sam Terese,

Respondents-Cross-Appellants.

No. A7802-01952; CA 19045.

Court of Appeals of Oregon.

Argued and Submitted Sept. 28, 1981.

Decided Feb. 8, 1982.

Reconsideration Denied Mar. 11, 1982.

Magar E. Magar, Portland, argued the cause and filed the briefs for appellant-cross-respondent.

Marvin S. Nepom, Portland, argued the cause and filed the briefs for respondents-cross-appellants.

Before BUTTLER, P.J., WARREN, J., and HOLMAN, Senior Judge. ^*

HOLMAN, Senior Judge.

Plaintiff, as administrator of his father's estate, brought an action for fraud, contending that misrepresentations had been made to him as administrator concerning the value of a stock interest which the estate held in Freeway Transport, a closely-held corporation. As the result of these alleged misrepresentations, he contends, he, as administrator, was induced to sell the estate's interest to defendants at a sum which was a mere fraction of its true value. Plaintiff appeals from a summary judgment for defendants.

During probate, plaintiff in his individual capacity transferred his interest in his father's estate to his mother and, after completion, the probate of the estate was closed. Thereafter, the son petitioned the probate court that the estate be reopened and that he be reappointed as administrator so the present claim for fraud could be prosecuted. The petition was granted, and plaintiff filed the present litigation. Thereafter, defendants made an appearance in probate court and had plaintiff's appointment set aside on the basis that he was not an "interested person" and had no standing to apply to reopen of the estate under ORS 116.233 ¹ and ORS 111.005(19). ² There was no appeal from this ruling. Plaintiff's mother immediately petitioned the probate court to open estate and to reappoint plaintiff as administrator, and this was accomplished. However, the statutory period within which to bring the action elapsed prior to his reappointment on his mother's petition.

Defendants then filed a successful motion for summary judgment, asserting that plaintiff had no cause of action at the time the case was originally filed, because he was not validly appointed the estate's administrator and had no right to any recovery. They contended the reasserting of the claim upon his reappointment on his mother's petition was the commencement of a new action and was time-barred. They say the issue is whether plaintiff had a cause of action at the time the action was filed.

Defendants' position is based on Richard v. Slate, 239 Or. 164, 396 P.2d 900 (1964). In Richard, a non-resident of Oregon was killed in an automobile accident in Yamhill County. Richard made application in Multnomah County for letters of administration, which were granted. Thereafter, as administrator, he brought an action against the defendants for wrongful death. His appointment as administrator was then set aside by the Multnomah County court on the basis that the court was without jurisdiction to make the appointment, because the deceased was a non-resident of the state and left no estate in Multnomah County. Richard then made application in Yamhill County for letters of administration, which were granted, and he then filed an amended complaint setting forth his new appointment. Between the time of the issuance of the letters in Multnomah County and the issuance of the letters in Yamhill County, the statutory period within which to bring an action elapsed. The court held that the filing of the amended complaint was a new cause of action and was time-barred.

It is our opinion that the present case can be distinguished from Richard. In the first place, the court held in Richard that there was no right of action for wrongful death at common law, that the statute creating the action was not a survival statute, and that the two-year period within which to bring the action was not a statute of limitations but an element of the existence of any rights. The court deemed this important, saying that under the statute the personal representative must bring the action and that this was as much a condition of the right to bring it as that it be commenced within two years. It held that the party bringing an action under the statute must comply with all the conditions contained in the statute before its benefits can be secured. In the present situation, of course, no wrongful death statute was involved.

In addition, the court in Richard held that his appointment in Multnomah County was "a complete nullity" and "utterly void." In so saying, the court said "(n)o action could be taken by any court that would validate those proceedings so they could be related back to the commencement of this action." 239 Or. at 175, 396 P.2d 900. That sounds as if the court was saying that the Multnomah County court had no jurisdiction; in fact, that was the reason given by the trial court in that case for setting aside the original appointment. In the present case, the original appointment was made by a court which had subject matter jurisdiction over decedent's estate and could have granted letters of administration. The court had the authority to and did rectify plaintiff's mistake. In Richard, so the court indicated, the court in Multnomah County had no such authority and could never make an appointment, regardless of who applied.

Plaintiff's only debility was lack of capacity to sue. In his first complaint, plaintiff was not purporting to assert a personal claim but, rather, one for the benefit of the estate, which was the identical claim he ultimately asserted after reappointment. Therefore, he was not prosecuting any new or different cause of action when he filed a new complaint after his reappointment. Plaintiff was the very person upon whom the fraud was perpetrated while acting for the estate.

Also, this case does not present a situation which gives rise to the dangers the statute of limitations was meant to prevent. This was not a stale claim of which defendants were unadvised and, therefore, unable to preserve recollections or proof. They were timely advised of the identical claim by the bringing of the first action for the benefit of the estate. A termination in their favor, because of plaintiff's original lack of capacity, would be a triumph of form over substance. We conclude that the subsequent appointment of plaintiff on his mother's application related back to the original filing of the case. See Annot., 8 A.L.R.2d 6 (1949), and cases there cited for the following proposition:

"Where a person brings an action in his individual name and after the statute of limitations has run amends his action by substituting as party plaintiff his person in the...