Boatright v. Derr

Justice SCOTT,

dissenting:

This case requires that we determine the force of section 15-12-608, 6B C.R.S. (1987). I agree that section 15-12-608 expressly provides for the termination of an appointment as personal representative. Therefore, I cannot agree that under section 15-12-608, a personal representative’s authority does not terminate and is indefinite “with respect to the performance of acts ‘necessary to protect the estate.’” Maj. op. at 225. To the contrary, section 15-12-608 expressly provides that “[Germination ends the right and power pertaining to the office of personal representative.” § 15-12-608. Section 15-12-608 terminated Charlene Hill’s right to pursue litigation as a personal representative of the estate in March of 1992. Therefore, unlike the majority, I would conclude that Charlene Hill was without the “right and power” to pursue the civil action as the personal representative of the Nixon estates. Accordingly, I respectfully dissent.

I

Our primary task in construing a statute is to give effect to the intent of the General Assembly. Scoggins v. Unigard Ins. Co., 869 P.2d 202 (Colo.1994); Farmers Group, Inc. v. Williams, 805 P.2d 419 (Colo.1991). To discern intent, we first look to the plain language of the statute. People v. Terry, 791 P.2d 374 (Colo.1990). If the language of the statute is clear and the intent of the General Assembly may be discerned with certainty, it is not necessary to resort to other rules of statutory interpretation. McKinney v. Kautzky, 801 P.2d 508 (Colo.1990). Even if the intent of the General Assembly can be disputed, if the plain language of the statute is clear, it is controlling. Scoggins, 869 P.2d at 205. We should not read a statute to accomplish something the plain language does not suggest, warrant, or mandate. See Schlessinger v. Schlessinger, 796 P.2d 1385 (Colo.1990) (holding that the court should be careful to avoid judicial legislation by adding to a statute that which the legislature did not deem proper); Jones v. People, 155 Colo. 148, 393 P.2d 366 (1964) (stating the court may not change the laws enacted by the legislature).

II

Section 15-12-608 provides that the tenure of a personal representative is not without limits:

Termination of appointment — general. Termination of appointment of a personal representative occurs as indicated in sections 15-12-609 to 15-12-612.[1] Termination ends the right and power pertaining to the office of personal representative as conferred by this code or any will; except that a personal representative, at any time prior to distribution or until restrained or enjoined by the court order, may perform acts necessary to protect the estate and may deliver the assets to a successor representative. Termination does not discharge a personal representative from liability for transactions or omissions occurring before termination, or relieve him of the duty to preserve assets subject to his control, to account therefor, and to deliver the assets. Termination does not affect the jurisdiction of the court over the personal representative, but terminates his authority to represent the estate in any pending of future proceeding.

(Emphasis added.)

The plain language of the second sentence of section 15-12-608 indicates that upon termination of appointment, the personal representative’s “right and power” ends. The statute, however, provides one exception to this loss of authority: When the personal representative acts to protect the estate or to “deliver the assets to a successor representative.” § 15-12-608. However, the exception is limited in its own terms to that “time prior to distribution.” Id. Thus, after distribution, when there are no assets to protect, the *231statute’s plain language terminates the personal representative’s authority to “perform acts [ ] to protect the estate.” As a result, the personal representative’s authority has temporal limitations. It simply does not last indefinitely.

' Here, and as the majority acknowledges, Hill filed closing statements in March of 1991. See maj. op. at 223. Under the plain language of sections 15-12-608 and 15-12-610(1), Hill’s authority to continue in the litigation as the estate’s personal representative terminated in March of 1992 or “one year after the filing of a closing statement.”

The majority’s reading of the second sentence of section 15-12-608 assumes that there is no limit to the authority or ability of an individual to act as a personal representative so long as he or she acts “to protect the estate.” The majority states “[wjhile her closing statements reflected that the assets of the estates had been distributed, the record contains no evidence that she had been enjoined or restrained by court order from continuing to exercise her responsibility to protect the assets of the estates by maintaining this lawsuit.” Maj. op. at 225 (emphasis added). I disagree. Without reappointment by the court administering the estate, Hill lacked statutory authority to act on behalf of the estate. See § 15-12-1008, 6B C.R.S. (1987).

Because the plain language of section 15-12-608 terminated Hill’s “rights and power pertaining to the office of personal representative” in March of 1992, as a consequence of her own actions, ie., the filing of the closing statement, I can find no authority for her to continue as personal representative.

Accordingly, I respectfully dissent.

I am authorized to say that Chief Justice VOLLACK joins in this dissent.

. Section 15-12-610(1) provides that ''appointment of a personal representative terminates as provided in § 15-12-1003 one year after the filing of the closing statement.”