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Wheeler v. Williams8/2/1995
d judgment of dismissal on that date. This appeal followed.
Plaintiff's assignments of error relate to the failure of the circuit and probate courts to appoint a personal representative of the estate for the purpose of receiving service and representing the estate in the personal injury action, and the subsequent dismissal of the proceedings.
An action based on the wrongful conduct or negligence of a deceased person is not maintained against the decedent, but rather against the personal representative of the decedent's estate. ORS 30.080; ORS 115.305. Plaintiff challenges the circuit court's ruling that only the probate department of the circuit court had jurisdiction to appoint a personal representative. Even assuming that that issue is properly before us, we need not decide it. The probate court also declined to appoint a personal representative. Because we agree with the probate court's rationale for not appointing a personal representative, as well as its ruling, we affirm.
The probate court refused to appoint a personal representative on the ground that the complaint against the personal representative would have been filed after the statutory period and would not have related back to the original complaint. ORS 12.190(2) provides:
"If a person against whom an action may be brought dies before the expiration of the time limited for its commencement, an action may be commenced against the personal representative of the person after the expiration of that time, and within one year after the death of the person."
The time for the commencement of this action was limited to two years. ORS 12.110. ORS 12.190(2) provides a brief extension of that period to April 26, 1993, which is one year after the date of the death of the decedent. Plaintiff first filed her complaint naming the decedent as defendant on March 31, 1993. Although plaintiff had served summons and complaint on the attorney for the affiant of the small estate within 60 days of the filing of the complaint and within the statutory period for bringing the action, she did not seek the appointment of a personal representative until July 1993, beyond the
statutory period. Thus, the question is whether, if the court had appointed a personal representative at that time, the amended complaint naming the personal representative as defendant would have related back to the original complaint.
ORCP 23 C provides:
"Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party to be brought in by amendment, such party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining any defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party brought in by amendment."
It is conceded that the substantive allegations of negligence and damages are the same in the original and amended complaints. Plaintiff claims to have satisfied the requirement of notice to the party to be brought in by having served the attorney for the affiant of the small estate within the period of limitation. Because we conclude that there has been no notice, we agree with the probate court that there can be no relation back.
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