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Korn v. Mackey5/27/2005
{ } Roger C. Korn appeals from a judgment of the Montgomery County Court of Common Pleas, which granted summary judgment in favor of Thomas Mackey (deceased) and Roy Miller.
{ } A review of the record reveals the following facts.
{ } On April 6, 1999, Korn was involved in an automobile accident with Mackey on Troy Street near State Route 4. On April 5, 2001, Korn brought a negligence action against Mackey in the Montgomery County Court of Common Pleas. Korn v. Mackey, Montgomery Case No. 01-CV-1751. Korn attempted service of Mackey via certified mail. The docket indicates that the certified mail receipt was signed by Roy Miller; however, Miller denies having been served with that complaint.
{ } On May 3, 2001, defense counsel filed a suggestion of death, indicating that Mackey had died on February 8, 2000. Defense counsel also corresponded with Korn's counsel, informing him that Mackey had died testate, that his wife had been the personal representative of the estate, and that the estate had been closed. Defense counsel also requested that Miller now be appointed the personal representative, as Mrs. Mackey was elderly. On July 5, 2001, Korn filed a motion to substitute Miller in place of Mackey, stating that Miller would be appointed the estate's representative for purposes of defending the lawsuit. Korn's motion also indicated that he had requested that defense counsel have Miller appointed in order to avoid a conflict of interest by his counsel. On September 1, 2001, Korn filed a supplemental memorandum in support of his motion to substitute, in which he indicated that he would make a motion for Miller to be appointed as the estate's representative within the next ten days.
{ } According to Korn's submissions to the trial court, an application for authority to administer the estate was prepared by Korn's counsel and signed by Miller, and a fiduciary bond was obtained. Korn's attorney also prepared an application to reopen Mackey's estate, which contained a signed certificate of service to defense counsel dated December 21, 2001. However, the record reflects -- and Korn concedes -- that these documents were never filed in the probate court. See Montgomery Case No. 2000EST331811. Miller was never appointed as the personal representative of Mackey's estate by the probate court. The trial court never ruled on the motion for substitution.
{ } On July 25, 2002, Jeffery Rezabek filed an application for authority to administer Mackey's estate, and he was appointed by the probate court on August 20, 2002. See Montgomery Case No. 2002EST340349. Rezabek accepted service of Korn's complaint on October 23, 2002. State Farm subsequently filed an answer on behalf of Mackey.
{ } On December 5, 2002, the action was voluntarily dismissed without prejudice. (Around the same time, Korn also dismissed a separate negligence action against Chad Carpenter, with whom he had had an automobile accident on October 2, 1999. Korn v. Carpenter, Montgomery Case No. 01-CV-5397.) Mackey's estate was again closed on February 3, 2003.
{ } On November 25, 2003, Korn filed the present action, alleging negligence claims against Mackey and Carpenter, arising out of the two 1999 automobile accidents. Korn v. Mackey, Montgomery Case No. 03-CV-8589. Korn also named Miller as a defendant, alleging that Miller "was either appointed substitute fiduciary of the Estate of Thomas Mackey, or is willing to be for purposes of this suit."
{ } On June 14, 2004, Mackey (with defense counsel acting on his behalf) and Miller moved for summary judgment. They argued that Korn had failed to amend his complaint in Case No. 01-CV-1751 to name Mackey's estate a
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