Failure to revive action within one year results in dismissal and attempt to amend complaint fails: FRANK v. THE ESTATE OFJOHN ENDERIE (COA 3/21/2008)

FRANK v. THE ESTATE OF JOHN ENDERIE
CIVIL PROCEDURE:  Failure to revive cause of action and no duty on defense counsel to open estate
2006-CA-001106   
PUBLISHED: AFFIRMING
PANEL:  NICKELL PRESIDING; CAPERTON, TAYLOR CONCUR
COUNTY: JEFFERSON
DATE RENDERED: 3/21/2008

Court of Appeals affirms dismissal of action for failure to revive within one year of the death of the alleged tortfeasor.

During the pendency of this auto-collision case, the alleged tortfeasor died. Within a few weeks and at a pretrial conference in January 2005, his defense counsel advised the court and plaintiff’s counsel of her client’s death and that she was unaware of an estate having been opened. Trial was set for July 12, 2005, but did not go forward; various motions were argued, including a motion to dismiss for failure to revive. Defense counsel submitted copies of the death certificate, obituary, and a letter from the decedent’s brother noting that, since the decedent was insolvent at the time of death, no estate was opened. Plaintiff’s counsel candidly admitted that he had forgotten that the alleged tortfeasor had died (he had even prepared his cross-examination). He said he anticipated that the family would open an estate, but since they didn’t, he would petition probate court to have the public administrator appointed. The trial court granted plaintiff time to file the probate petition and amended its complaint, denying the motion to dismiss and setting a new pretrial conference for October 10, 2005.

Later on July 12, 2005, plaintiff’s counsel emailed defense counsel asking for next of kin information for the probate petition. Defense counsel responded that she didn’t know, but that she would "try" to reach the decedent’s brother. Six weeks later, plaintiff’s counsel asked for the same information and received essentially the same reply. In further emails, defense counsel noted that most of what plaintiff’s counsel needed was included in the obituary. At the October 10, 2005, pretrial conference, plaintiff’s counsel noted no problems whatsoever and merely got a trial date from the court. On December 15, 2005, plaintiff’s counsel finally petitioned the probate court, but since he did not have the next of kin’s addresses required for notification, the probate court continued the petition until January 2006 to allow proper notice. Although the one-year statute of limitations on reviver was to run on December 26, 2005, plaintiff’s counsel did not request an expedited hearing. Plaintiff’s counsel obtained the addresses, made proper notification and the public administrator was appointed in January 2006. Instead of filing a motion to substitute the administrator, plaintiff’s counsel filed a motion to amend the complaint.

Defense counsel filed another motion to dismiss and co-counsel took over for plaintiff. Co-counsel alleged that defense counsel had acted nefariously in her dealings with initial plaintiff”s counsel. Also, co-counsel argued that initial counsel felt ethically barred from contacting the family directly as they were represented and/or controlled by the defense.

CA held that defense counsel owed no duty to plaintiff’s counsel, that plaintiff’s counsel failed to review his own file and take appropriate steps. Further, defense counsel did not intentionally mislead counsel; she only noted that she would "try" to get information out of professional courtesy – she had no duty to do so. Also, counsel’s claims of not contacting the family out of ethical concerns are belied by the fact that counsel did, in fact, try to contact the presumably family to determine if defense counsel had contacted them.

By John Hamlet

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