Opinion
No. 75-569 No. 75-570
Decided October 27, 1977. Opinion modified and as modified petition for rehearing denied December 8, 1977.
In negligence action, following the death of one defendant, motion for substitution was filed within prescribed period but the person proffered for substitution was rejected by the court. Then, the day after period for substitution had expired, defendant moved for, and the court granted, motion to dismiss. Plaintiffs appealed.
Reversed
1. PRACTICE AND PROCEDURE — Suggestion of Death — Ninetieth Day — Motion to Substitute — Attorney's Secretary — Timely Made — Person Suggested — Not Appointed — Motion Not Void. Where on the 90th day after the filing of a suggestion of death as to defendant, the plaintiffs moved, pursuant to C.R.C.P. 25, to substitute their attorney's secretary as personal representative in both the estate proceedings and in their pending tort action, that motion for substitution was "made" within 90 days of service of the suggestion of death, and merely because the person designated therein for appointment as personal representative was not appointed does not serve to make the motion a nullity.
2. Suggestion of Death — Motion for Substitution — Denied — No Prejudice to Defendant — Error — Dismiss the Action — Proper Response — Allow Additional Time — Appoint Proper Person. When on the 90th day after the filing of a suggestion of death as to the defendant in tort action, the plaintiffs moved, pursuant to C.R.C.P. 25, to substitute their attorney's secretary as personal representative in both the estate proceedings and in their pending tort action and the trial court, in denying the motion, specifically stated that defendants were not prejudiced by the delay, and the denial of the motion was immediately followed by the filing of a supplemental motion, the trial court should not have dismissed the action, but rather should have either allowed additional time for the movant to substitute an amended motion or, failing that, should have itself appointed a proper personal representative.
Appeal from the District Court of Arapahoe County, Honorable M. O. Shivers, Jr., Judge.
William Pehr, Perry W. Fox, for plaintiffs-appellants.
Yegge, Hall Evans, Eugene O. Daniels, for defendants-appellees.
Paul and Lahoma Smith sued Hollis and Marshall Bridges for damages arising out of an automobile collision. Hollis Bridges died prior to trial and his attorney filed a "suggestion of death." On the 90th day after the filing of the suggestion of death, the Smiths moved, pursuant to C.R.C.P. 25, to substitute their attorney's secretary as personal representative in both the estate proceedings and in the pending tort action. The same judge presided in the probate matter as well as the tort action. The court denied the motion in both proceedings because it considered the person designated by the Smiths to be improper.
On the 91st day after the filing of the suggestion of death, the Smiths submitted an amended motion for substitution urging appointment of plaintiffs, or "whoever the court appointed as administrator and/or special administrator," to serve as personal representative. Counsel for the Bridges then moved to dismiss the tort action alleging that the plaintiffs had failed to comply with the time limit for substitution mandated by C.R.C.P. 25. The court thereupon dismissed the Smiths' tort case. Accordingly, the determinative issue before us is whether the court erred in dismissing the tort case even though a motion for substitution was filed within 90 days of the service of the suggestion of death.
C.R.C.P. 25(a)(1) sets forth the mechanics for substitution of parties when a death occurs during the pendency of litigation. It makes provision for service of a "suggestion of death" to make known the fact of the death and to make apparent the need for substitution for the deceased party. The rule provides that after service of such suggestion of death, "if the motion for substitution is not made within 90 days . . . the action shall be dismissed as to the deceased party." (emphasis added)
[1] C.R.C.P. 1(a) directs that the rules "shall be liberally construed to secure the just, speedy and inexpensive determination of every action." Here, the motion for substitution was "made" within 90 days of service of the suggestion of death. Merely because the person designated for appointment as personal representative in the motion was not appointed by the court does not serve to make the motion the nullity. Cf. Vigil v. Lewis Maintenance Service, Inc., 38 Colo. App. 209, 554 P.2d 703 (1976).
[2] It is noteworthy that we are not dealing with a situation in which the defendants were prejudiced by the delay. The court stated specifically that there had been no such prejudice. Nor was the denial of the motion for substitution followed by a lengthy period of inaction by the movant; rather, on the very next day a supplemental motion was filed. Under these circumstances, rather than permitting substantial rights to be lost by dismissing the action, the court should have either allowed a reasonable additional time for the movant to submit an amended motion, or failing that, should have appointed a proper personal representative such as the public administrator. See §§ 15-12-614(1)(b) and 15-12-619, C.R.S. 1973.
The judgment of dismissal in Case No. 75-569 is reversed and both causes are remanded with directions to the trial court sitting in probate to appoint a proper person to serve as administrator of the estate of Hollis Bridges in Case No. 75-570, and for the trial court in the tort case (No. 75-569) to reinstate the complaint, and the administrator so appointed shall be substituted in Case No. 75-569.
JUDGE ENOCH and JUDGE SMITH concur.