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Dixon v. Hill11/1/2005
after the expiration of 30 days from the commencement of the action . . . move with or without supporting affidavits for a summary judgment in his favor . . . ." (Emphasis added.) Rule 56(c) further provides that any motion for summary judgment must be served on the opposing party at least 10 days before any scheduled hearing on the matter. This Court has held that notice of a hearing on a summary judgment motion must also be given at least 10 days prior to the hearing. Barnett v. King, 134 N.C. App. 348, 350, 517 S.E.2d 397, 399 (1999). Here, the action did not commence against the Barber estate until 15 September 2003, the day Hill was joined as a party. Defendant Hill was, therefore, denied the notice required by Rule 56.
Plaintiffs argue, however, that the estate was actually made a party when the trial court on 14 February 2000 ordered "that the Estate of John Barber and John Barber's personal representative or collector be substituted for Defendant John Barber." We disagree. It is undisputed that as of that date, no personal representative or collector existed. Thus, the order did not effectively substitute anyone.
As this Court explained with respect to a lawsuit mistakenly brought against a deceased person named John Daniel Johnson rather than against his estate:John Daniel Johnson, a legal entity, is transformed, after death, into the estate of John Daniel Johnson, a legal entity. . . . he life and estate of John Daniel Johnson are inextricably dependent: Death of the person is a point at which a legal transformation to an estate can occur. Once death occurs, the legal entity known as the life of John Daniel Johnson can never again have legal standing.
Pierce v. Johnson, 154 N.C. App. 34, 40, 571 S.E.2d 661, 665 (2002). In recognition of this principle, N.C. Gen. Stat. § 28A-18-1(a) provides that upon the death of any person, all right to defend any action existing against the deceased "shall survive . . . against the personal representative or collector of his estate."
As a result, when Barber died, this action did not abate, but it could not be continued against Barber or his estate generally. The action survived only against the personal representative or collector of Barber's estate. Shaw v. Mintz, 151 N.C. App. 82, 86, 564 S.E.2d 593, 596 (Greene, J., dissenting) ("An injured party's right to proceed with a claim against a person she claims to have negligently caused her injuries is not abated by the death of the party alleged to have been negligent, as the action survives against the personal representative or collector of the decedent's estate."), adopted per curiam, 356 N.C. 603, 572 S.E.2d 782 (2002). The personal representative must then be substituted under N.C.R. Civ. P. 25(a). In re Estate of Etheridge, 33 N.C. App. 585, 587, 235 S.E.2d 924, 926 (1977) ("If, as in the case at bar, there is a death of a party to an action, then G.S. 1A-1, Rule 25(a) . . . requires the substitution of either a personal representative or a successor in interest."). The 14 February 2000 order directing the substitution of the non-existent "personal representative or collector" does not comply with N.C. Gen. Stat. § 28A-18-1 or Rule 25. As our Supreme Court has stated, "our statutory scheme for handling claims against decedents' estates presumes the appointment of a personal representative or collector to receive those claims." Ragan v. Hill, 337 N.C. 667, 673, 447 S.E.2d 371, 375 (1994). In both Ragan and Shaw, our courts acknowledged that a plaintiff is unable to proceed with litigation against an estate until an administrator is actually appointed. Ragan, 337 N.C. at 673, 447 S.E.2d at 375 ("Once Hill was appointed administrator, plaintiffs were able to proceed with t
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