C.r.c.p. 25
C.r.c.p. 25
Annotation I. General Consideration. Law reviews. For article, "Notes on Proposed Amendments to Colorado Rules of Civil Procedure", see 27 Dicta 165 (1950). For article, "Pleadings, Rules 7 to 25 ", see 28 Dicta 368 (1951). For article, "One Year Review of Civil Procedure", see 35 Dicta 3 (1958). Annotator's note. Since this rule is similar to §§ 15 and 290 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing those sections have been included in the annotations to this rule. Applied in In re Van Camp, 632 P.2d 1062 (Colo. App. 1981); B.C. Inv. Co. v. Throm, 650 P.2d 1333 (Colo. App. 1982); Garcia v. Title Ins. Co. of Minnesota, 712 P.2d 1114 (Colo. App. 1985). II. Death. This rule does not define the causes that survive. Clapp v. Williams, 90 Colo. 13, 5 P.2d 872 (1931). This rule merely provides that, if the cause survives, the action shall not abate. Clapp v. Williams, 90 Colo. 13, 5 P.2d 872 (1931). Trial court had personal jurisdiction over estate after plaintiffs amended complaint to name estate and estate's special administrator as defendants instead of deceased, non-existent defendant before any answer had been filed in the case. This cured the defect in personal jurisdiction contained in the original complaint. Currier v. Sutherland, 218 P.3d 709 (Colo. 2009). An action involving the death of a party shall remain in abeyance a reasonable time until a representative can be appointed and qualified, who may be substituted and the suit proceed to judgment. Williams v. Carr, 4 Colo. App. 363, 36 P. 644 (1894). An action does not abate by the death of a party, if the cause survives or continues. Williams v. Carr, 4 Colo. App. 363, 36 P. 644 (1894). This rule authorizes substitution of a proper party where a defendant dies and the claim against him is not extinguished by his death. Willis v. Neilson, 32 Colo. App. 129, 507 P.2d 1106 (1973). Section (a)(1) of this rule mandates personal service of suggestion of death on nonparty successors or personal representatives in accordance with C.R.C.P. 4. Where suggestion of death was not personally served upon daughters of decedent involved in negligence lawsuit, 90-day time limit for substitution was not triggered. Therefore, trial court improperly dismissed lawsuit for failure to substitute parties. Sawyer ex rel. Sawyer v. Kindred Nursing Ctrs. W., LLC, 225 P.3d 1161 (Colo. App. 2009). The provisions of section (a)(1) of this rule for substitution of parties are procedural. Duke v. Pickett, 30 Colo. App. 438, 494 P.2d 120 (1972). Survival of actions and substitution of parties are function of the substantive law. This 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, as this is a function of the substantive law. Duke v. Pickett, 30 Colo. App. 438, 494 P.2d 120 (1972). In case of the death of a party, the court may, on motion, allow the action to be continued by his representative or successor in interest. Williams v. Carr, 4 Colo. App. 363, 36 P. 644 (1894). The rule that an administrator cannot be joined in his capacity as administrator with codefendants in their individual capacity does not apply where an administrator is substituted in place of a deceased defendant, who died during the pendency of the action. Morgan v. King, 27 Colo. App. 539, 63 P. 416 (1900). The "proper party" is the administrator of decedent's estate. Mills v. Saunders, 30 Colo. App. 462, 494 P.2d 1309 (1972). This rule plainly recognizes the duty resting on litigants to make substitution of an administrator or executor for a party litigant who dies while a case is pending. Koon v. Barmettler, 134 Colo. 221, 301 P.2d 713 (1956). Action against deceased cannot be further prosecuted until administrator is substituted. Where a suit does not abate by reason of death, it cannot be further prosecuted against the estate of deceased or any liability on that account established against it until his legal representative, the administrator of the estate, is substituted as a party defendant. First Nat'l Bank v. Hotchkiss, 49 Colo. 593, 114 P. 310 (1911); Colo. Nat'l Bank v. Irvine, 105 Colo. 588, 101 P.2d 30 (1939). It is the duty of administrator to defend. Where an action commenced against deceased does not abate by reason of his death, it becomes the duty of the administrator to defend under this rule where he is properly made a party defendant. Morgan v. King, 27 Colo. 539, 63 P. 416 (1900). Until the administrator is made a party defendant, the action commenced against deceased remains in abeyance. First Nat'l Bank v. Hotchkiss, 49 Colo. 593, 114 P. 310 (1911); Colo. Nat'l Bank v. Irvine, 105 Colo. 588, 101 P.2d 30 (1940). An administrator is not required to take notice of pendency or defend until made a party thereto. First Nat'l Bank v. Hotchkiss, 49 Colo. 593, 114 P. 310 (1911); Colo. Nat'l Bank v. Irvine, 105 Colo. 588, 101 P.2d 30 (1940). An attorney for a deceased defendant has a duty to notify the court and the other parties in the action that his client has died. Farmers Ins. Group v. District Court, 181 Colo. 85, 507 P.2d 865, cert. denied, 414 U.S. 878, 94 S. Ct. 156, 38 L. Ed. 2d 122 (1973). This rule does not require notification of identity of representative. There is nothing in this rule which could reasonably be a basis for requiring that notification of the death of a defendant should include the identity of the deceased defendant's executor, administrator, or representative. Farmers Ins. Group v. District Court, 181 Colo. 85, 507 P.2d 865, cert. denied, 414 U.S. 878, 94 S. Ct. 156, 38 L. Ed. 2d 122 (1973). The plaintiff's attorney who receives notification of the defendant's death has the responsibility to promptly initiate the necessary inquiries to determine the identity of a person to be substituted for the deceased defendant and to file a motion for substitution. Farmers Ins. Group v. District Court, 181 Colo. 85, 507 P.2d 865, cert. denied, 414 U.S. 878, 94 S. Ct. 156, 38 L. Ed. 2d 122 (1973). Burden is on plaintiffs to show excusable neglect to file motion for substitution. Where the issue is whether the failure to file a motion for substitution within the required 90 days under the facts is the result of excusable neglect, the burden is clearly on the plaintiffs to show that the failure to comply was due to excusable neglect. Farmers Ins. Group v. District Court, 181 Colo. 85, 507 P.2d 865, cert. denied, 414 U.S. 878, 94 S. Ct. 156, 38 L. Ed. 2d 122 (1973). An intervenor is not required to move for revivor after such substitution. When substitution of parties is made and the legal representatives appear in the action, there can be perceived no valid reason why an intervenor therein, who supports the side of the party bringing about the revival and who originally intervened at the behest of the adverse party, should be required separately to additionally move for a revivor as a condition precedent to the final adjudication of the mutual controversy with the common adversary. Colo. Nat'l Bank v. Irvine, 105 Colo. 588, 101 P.2d 30 (1940). Lien may be enforced by substituting executor. If a valid lien existed during the lifetime of deceased, it might be enforced, under this rule, by the substitution of his executor as a party defendant, and the subsequent rendition of a judgment against him in his representative capacity in favor of the plaintiff. Thompson v. White, 25 Colo. 226, 54 P. 718 (1898). This rule does not apply to lien which became vested upon entry of divorce decree. This rule has no application where plaintiff is seeking to enforce against specific real property deeded by the deceased to defendant a lien which became vested upon entry of a divorce decree. Willis v. Neilson, 32 Colo. App. 129, 507 P.2d 1106 (1973). Merely because the person designated for appointment as personal representative in the motion for substitution is not appointed by the court does not serve to make the motion a nullity. Smith v. Bridges, 40 Colo. App. 171, 574 P.2d 511 (1977). When there is no prejudice caused by delay nor a lengthy period of inaction by a movant for substitution, rather than allowing substantial rights to be lost by dismissing the action, the court should either allow a reasonable additional time for the movant to submit an amended motion or, failing that, appoint a proper personal representative such as the public administrator. Smith v. Bridges, 40 Colo. App. 171, 574 P.2d 511 (1977). Dismissal of action based on C.R.C.P. 41 not to be considered under this rule. Where the record revealed that the action against the estate was dismissed voluntarily, without prejudice, under C.R.C.P. 41, and not based on failure to make a timely substitution under this rule, dismissal under this rule could not be considered in the appeal of the second action. Vigil v. Lewis Maintenance Serv., Inc., 38 Colo. App. 209, 554 P.2d 703 (1976). Dismissal for failure to make a timely substitution when a party dies falls within the purview of C.R.C.P. 41(b)(1), but not as to the claims against remaining defendants. Cheney v. Hailey, 686 P.2d 808 (Colo. App. 1984). If there is a substitution of parties, any error therein is waived by failure to object. Thomason v. McAlister, 748 P.2d 798 (Colo. App. 1987). Applied in Ray v. Schooley, 156 Colo. 33, 396 P.2d 730 (1964); Wildenstein v. Stills, 156 Colo. 96, 396 P.2d 969 (1964). III. Transfer of Interest. For cases construing the former code provision, see Perkins v. Marrs, 15 Colo. 262, 25 P. 168 (1890); Portland Gold Mining Co. v. Stratton's Independence, 196 F. 714 (D. Colo. 1912); Winchester v. Walker, 59 Colo. 17, 147 P. 343 (1915); Metro. State Bank v. Bisher, 82 Colo. 421, 260 P. 688 (1927). When plaintiff, on appeal, seeks to use section (c) of this rule to substitute a defendant post-judgment, and the trial court did not explain its decision to deny the original motion for substitution, the case shall be remanded for further proceedings conducted by the trial court, such that the trial court conduct an evidentiary hearing to determine transfer of interest. Liberty Mut. Fire Ins. Co. v. Human Res. Cos., Inc., 94 P.3d 1257 (Colo. App. 2004). Applied in Recreational Dev. Co. v. Am. Const., 749 P.2d 1002 (Colo. App. 1987). IV. Public Officers. Action against officer does not abate because his term of office expires. Where the obligation which is sought to be enforced is a duty devolving upon no particular officer, but is perpetual upon the then incumbent of the office and his successors, unless legally excused, the action will not abate by reason of the expiration of the term of office of the official against whom the action was originally commenced. Nance v. People, 25 Colo. 252, 54 P. 631 (1898). Successor in office must be substituted as a party within six months. Bach v. Schooley, 155 Colo. 30, 392 P.2d 649 (1964); Union P. R. R. v. State, 166 Colo. 307, 443 P.2d 375 (1968). Jurisdiction held not lost where facts establish predecessor's actions are continued. People ex rel. Dunbar v. Hively, 140 Colo. 265, 344 P.2d 443 (1959). Substitution had to be effected previously. Ray v. Schooley, 156 Colo. 33, 396 P.2d 730 (1964); Gilliland v. McClearn, 168 Colo. 358, 451 P.2d 756 (1969).
For service of process, see C.R.C.P. 4; for service and filing of pleadings and other papers, see C.R.C.P. 5.