Opinion
No. 71-003
Decided February 23, 1972.
Heirs of decedent who was defendant and a counter-claimant in fraud action at time of his death moved to be substituted as parties in that action. From denial of the motion for substitution and grant of plaintiff's motion to dismiss, appeal was taken.
Order and Judgment Affirmed Appeal Dismissed
1. PARTIES — Substitution — Death of Party — Administrator or Executor — Proper. The proper party who may be substituted under C.R.C.P. 25(a)(1) upon the death of a party is his personal representative, i.e., his administrator or executor.
2. Decedent's Estate — Administered — Small Estates Act — Heirs-at-Law — — Distributees — No Authority — Continue Litigation. Where decedent's estate was administered under provisions of the Small Estates Act without the appointment of a personal representative and since that Act does not provide an alternative procedure which may be substituted for the appointment of a personal representative for decedent who at the time of his death is engaged in litigation which should be continued, individual appellants have no right or authority, either as decedent's heirs-at-law or as distributees of his estate, to continue the litigation in which decedent was involved at his death.
3. APPEAL AND ERROR — Heirs — Not Proper Parties — No Standing — Appellate Court. Since decedent's heirs are not proper parties in action in which decedent was involved at time of his death, they have no standing in appellate court to question the validity of judgment of dismissal of the action entered by trial court and, accordingly, their appeal from the judgment is dismissed.
4. PARTIES — Remand — Limited Issues — Corporation — Not Involved — Properly Dismissed. Where, following prior appeal, Supreme Court remanded action for resolution of certain limited issues and did not name corporation as one of the parties still involved in the action, and where, upon the remand, no claim asserted by or against the corporation in the original action remained for determination, the trial court properly dismissed the action as to the corporation.
Appeal from the District Court of Jefferson County, Honorable George C. Priest, Judge.
Tinsley, Frantz and Heady, Mansur Tinsley, for plaintiffs-appellees.
John M. Cogswell, for defendants-appellants.
The appellants, Vivian E. Strawn, Ruby A. Pickett, and Inez L. Pyle, have appealed from an order denying a motion to substitute said appellants as parties-defendants for the deceased defendant, Orville C. Pickett, in an action in which Pickett was both a defendant and a counter-claimant at the time of his death. These individual appellants and the corporate appellant, Gentle Breeze Mobile Home Court, Inc., have also appealed the judgment dismissing the action as to all defendants.
The factual background of this case is stated in Duke v. Pickett, 168 Colo. 215, 451 P.2d 288. It appears from that opinion that the Dukes (plaintiffs-appellees) "transferred a mobilehome court they owned to the defendants — the Picketts — in exchange for a promissory note secured by a chattel mortgage on furniture and appliances in, and a second deed of trust on, an apartment building in east Denver." Upon the basis of the record, which established that the Picketts had fraudulently misrepresented the value of the note, the Supreme Court held that the Dukes were entitled to rescind the transaction. The case was remanded to the trial court for the entry of an appropriate judgment, and the trial court thereafter entered judgment vesting title to the real estate in the Dukes.
This judgment of the trial court was affirmed in Pickett v. Duke, 170 Colo. 199, 460 P.2d 232, and the case was remanded with the following directions:
". . . the only matter remaining for the trial court's consideration is to conduct the hearing as previously ordered. Such hearing is to be limited to a complete accounting and an equitable adjustment between the parties. To this end the parties may file pleadings in the trial court within time limits set by that court wherein the parties may assert their respective contentions, and whereby the issues to be determined by the court may be framed in an orderly fashion."
On remand, the Dukes filed a supplemental complaint alleging that defendant Orville C. Pickett had received rents of $135,000 during the time he was in possession of the property and demanded an accounting for such rents. In answer, Pickett denied that he was obligated to account for such profits and alleged that his liability was limited to the reasonable rental value of the mobile home park. He also filed a counterclaim demanding judgment for $90,000 on the theory that he was entitled to recover this sum because of an alleged increase in the value of the mobile home park during the time he was in possession.
The defendant, Orville C. Pickett, died intestate on February 15, 1970. His first wife, Mable A. Pickett, was a defendant in the action when it was originally filed. She died prior to the first appeal to the Supreme Court, and the action, in some manner not disclosed by the record here, was continued by and against Orville C. Pickett alone.
On June 2, 1970, Vivian E. Strawn, a daughter of the decedent Pickett, filed a motion to substitute Pickett's heirs-at-law (the appellants) as defendants in place of the deceased defendant Pickett. Subsequently, an order of distribution under the Small Estates Act was filed in support of the motion. The order recited that no personal representative had been appointed and that no useful purpose would be served by such an appointment and ordered the counterclaim which Pickett has asserted in this action distributed to the individual appellants. The trial court denied the motion for substitution.
I.
The first issue on appeal is whether the individual appellants are proper parties for substitution under the provisions of C.R.C.P. 25(a) (1). This rule provides:
"If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party. . . ."
The provisions of C.R.C.P. 25(a) (1) for substitution of parties are procedural. 3 B. J. Moore, Federal Practice ¶ 25.04 (2d ed.); McManus v. Lykes Brothers Steamship Company, 275 F.Supp. 361. The 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. This is a function of the substantive law. The applicable statute (C.R.S. 1963, 153-1-9) provides for the survival of actions of the type here involved, and it also provides that a pending action which survives the death of a litigant may be continued by or against the personal representative of the deceased. The term "personal representative" is defined by the applicable statute as an executor, administrator, guardian, or conservator. C.R.S. 1963, 153-1-1(11).
[1] The "proper party" who may be substituted under C.R.C.P. 25(a)(1) upon the death of a party is his personal representative, i.e., his administrator or executor.
[2] C.R.S. 1963, 153-7-4 (popularly referred to as the Small Estates Act) provides for the distribution without administration of certain small estates. However, distribution under this statute is authorized only in those cases where "no useful purpose would be served by the appointment of a personal representative." C.R.S. 1963, 153-7-4, does not provide an alternative procedure which may be substituted for the appointment of a personal representative for a decedent who at the time of his death is engaged in litigation which should be continued. The individual appellants have no right or authority either as decedent's heirs-at-law or as distributees of his estate under C.R.S. 1963, 153-7-4, to continue this litigation. The trial court properly ruled that they were not proper parties for substitution pursuant to the provisions of C.R.C.P. 25.
II.
[3] Subsequent to the denial of the motion for substitution, the trial court dismissed the action on motion of plaintiffs. The individual appellants also assert that the trial court was in error in dismissing the action on plaintiff's motion following the entry of the order denying the motion for substitution. Since the individual appellants are not proper parties in this action, they have no standing in this court to question the validity of the judgment of dismissal. Accordingly, their appeal from the judgment is dismissed.
III.
[4] Gentle Breeze Mobile Home Court, Inc., also appears here as an appellant and seeks reversal of the judgment dismissing the action. This corporation was originally named as a party defendant because it held legal title to the real estate involved. Title to the real estate was transferred to the Dukes by a final judgment, and after the entry of that judgment, the corporation had no interest in the litigation. The Supreme Court in its order remanding this case to the trial court limited the issues to an accounting and an equitable adjustment between the parties. The parties referred to by the Supreme Court were the Dukes and the Picketts. After the remand, no claim asserted by or against the corporation remained for determination, and the trial court properly dismissed the action as to the corporation.
The order of the trial court denying the individual appellants' motion for substitution is affirmed; the judgment of the trial court dismissing the action as to the corporation is affirmed; and the appeal of the individual appellants from the judgment dismissing the action is dismissed.
CHIEF JUDGE SILVERSTEIN and JUDGE ENOCH concur.