Escareno v. Carl Nolte Sohne GmbH & Co.

United States Court of Appeals,

Eleventh Circuit.

No. 94-9206.

Alejandro ESCARENO, Plaintiff-Appellant,

v.

CARL NOLTE SOHNE GmbH & COMPANY, and Carl Nolte Sohne GmbY,
Defendants-Appellees.

March 13, 1996.

Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:92-cv-103-JEC), Julie E. Carnes, Judge.

Before BIRCH, Circuit Judge, GODBOLD, Senior Circuit Judge, and
O'KELLEY*, District Judge.

GODBOLD, Senior Circuit Judge:

The temporary administrator of a deceased plaintiff's estate

moved, pursuant to Fed.R.Civ.P. 25, that he be substituted as party

plaintiff. The district court declined to order the substitution

on the ground that the temporary administrator was not a "proper

party" within the meaning of Rule 25 because the state court that

appointed him did not have jurisdiction to make the appointment.

In the same order the court dismissed the case because a

substitution of parties had not been effected within 90 days after

a suggestion of plaintiff's death was filed. We vacate the

decision of the district court and remand.

The plaintiff Alejandro Escareno, then a resident of Georgia,

brought this diversity products liability suit in January 1992, in

N.D. Georgia, for serious personal injuries he suffered at his

place of employment when a crucible for melting lead burst,

*
Honorable William C. O'Kelley, U.S. District Judge for the
Northern District of Georgia, sitting by designation.
inflicting devastating burns to him. The defendant is Carl Nolte

Sohne GmbH & Co., a German corporation, which is alleged to

regularly do business in N.D. Georgia out of which business this

case arose.1

Pending suit plaintiff returned to his home in Mexico. There,

suffering from severe physical and psychiatric consequences of his

injuries, he committed suicide on December 26, 1992.

On February 26, 1993 plaintiff's counsel in Atlanta, Irwin

Stolz, learned of Escareno's death. The same day he filed a

suggestion of death pursuant to Rule 25 and asked that the action

be stayed pending appointment of an administrator and substitution

of the administrator as a party. On March 10 the court entered an

order providing that the action would be dismissed unless a

substitution of parties was made within 90 days after the

suggestion of death was filed.

On April 23, 1993 Stolz filed an ex parte application with the

judge of the probate court of Fulton County, Georgia, seeking his

appointment as temporary administrator. The application alleged

that plaintiff died intestate, a resident of Mexico, and that he

left "an estate of real property valued at approximately N/A and

personal property valued at approximately -0-." These references

were followed by this statement: "Decedent died with a claim

pending U.S. district court for the Northern District Georgia."

The petition also alleged: "Said estate is unrepresented and it is

1
A second defendant was Noltina Crucible and Refractory
Corporation, alleged to be a Delaware corporation and a
subsidiary of Sohne. Plaintiff's appeal as to it was dismissed
with prejudice.
necessary for Temporary Letters of Administration to be granted for

the sole purpose of preserving the assets of the deceased." The

same day the application was filed the judge of probate granted it

and appointed Stolz temporary administrator, and Stolz was sworn in

that capacity.

On May 17, 1993, pursuant to Rule 25, Stolz moved the district

court to enter an order substituting him as plaintiff, in his

capacity as temporary administrator. Defendant filed an

opposition, relying on three major grounds: One: a temporary

administrator is not a proper party for substitution under Rule 25;

Two: Stolz was not a proper party to be substituted because the

probate court lacked jurisdiction to make the appointment and,

alternatively, it improperly exercised jurisdiction; Three:

plaintiff's motion failed to add the plaintiff's heirs, who, under

Fed.R.Civ.P. 17, were the real parties in interest.

Defendant's contention that the probate court lacked

jurisdiction centered on paragraph (2) of O.C.G.A. § 15-9-31, which

provides:

15-9-31. Authority of judge of probate court to grant
administration.

The judge of the probate court can grant administration
only on the estate of a person who was:

(1) A resident at the time of his death of the
county where the application is made; or

(2) A nonresident of the state, with property in the
county where the application is made or with a bona fide
cause of action against some person therein.

Defendant addressed both prongs of (2), alleging that the

nonresident decedent left no real or personal property within the

State of Georgia and that there was no bona fide cause of action
instituted by decedent "against a person in the State." According

to defendant, with neither prong met, the probate court did not

have jurisdiction and improperly exercised jurisdiction.

Plaintiff responded that in the second prong of paragraph (2),

§ 15-9-31, "a bona fide cause of action against some person

therein" referred to the location or situs of the particular entity

sued. Plaintiff read in pari materia O.C.G.A. § 15-9-32, which

provides:

15-9-32. Jurisdiction over estate of nonresident with property
or cause in several counties.

When a nonresident decedent has property or a cause of
action in more than one county, letters of administration may
be granted in any county in which such property or cause of
action is located. The judge of the probate court who first
grants such letters acquires exclusive jurisdiction.
(emphasis added)

Plaintiff also submitted that his reading of (2) comported

with O.C.G.A. § 53-6-26(a), which provides in pertinent part:

53-6-26. Designation of county where application for letters
of administration is to be made; contents of application;
waiver of bond and granting of powers.

(a) Every application for letters of administration shall be
made to the judge of the probate court of the county of
residence of the decedent, if a resident of this state and, if
not a resident, then in a county where the estate or some
portion thereof is located. (emphasis added)

Plaintiff also pointed out that if defendant's interpretation

of (2) were adopted, since defendant was not "in the county" (under

defendant's interpretation), no probate court in Georgia would have

jurisdiction to appoint an administrator of the estate of one like

Escareno who filed suit and thereafter left the state, leaving no

property in the county.

The district court did not address defendant's grounds One and
Three. It denied the motion to substitute, relying on the second

prong of paragraph (2) of § 15-9-31. It construed "cause of action

against some person therein" to mean "against some person residing

in the county," and, since the defendant did not reside in Fulton

County, it held that the probate court lacked jurisdiction. The

court acknowledged that § 15-9-32, which refers to a cause of

action as "located in the county," was "somewhat supportive" of

plaintiff's reading, but it considered Georgia cases to favor

defendant's construction.

The court went on to hold that, even if plaintiff's

construction of paragraph (2) were followed, the situs of the cause

of action was not Fulton County because the situs of a cause of

action is the domicile of the plaintiff, and Escareno was domiciled

in Mexico.

The court did not address on its merits the question of

whether, under paragraph (2), plaintiff's cause of action was

itself "property in the county." Rather it accepted defendant's

contention that absent evidence that plaintiff owned property in

the county the probate court lacked jurisdiction, and since the

motion to substitute had not alleged that plaintiff owned property

in the county the property prong was unavailing as a basis for

jurisdiction.2

2
By a motion for reconsideration, plaintiff did specifically
urge that the cause of action was itself property in the county.
However, the court refused to consider this on the ground it was
untimely raised. This was error. Under Georgia law, the probate
court is a court of general jurisdiction that is presumed to have
jurisdiction, and the facts that give it jurisdiction need not
appear on the face of the record, hence its jurisdiction is
presumed to exist. Davis v. Melton, 51 Ga.App. 685, 181 S.E. 300
(1935); Stuckey v. Watkins, 112 Ga.App. 268, 37 S.E. 401 (1900);
 The district court, having concluded that the requirements of

paragraph (2) had not been met, held that the probate court lacked

jurisdiction, that the order appointing Stolz was void, and since

a substitution of parties had not been effected within the 90 days

provided by the court's March 10 order, the case was dismissed.

For several reasons we vacate and remand.

First, the court conflated the period allowed to file a

motion to substitute and the time allowed to consummate a

substitution. Rule 25(a) permits the court to dismiss the case if

a motion for substitution is not made within 90 days after death is

suggested upon the record. Plaintiff timely filed such a motion.

The court did not act on the motion until November 29, 1993, at

which time it denied the motion and, in the same order, dismissed

the case "for failure to substitute a party for the deceased

pursuant to Rule 25(a) of the Federal Rules of Civil Procedure" and

it noted in its March 10 order that a party be substituted within

90 days of the suggestion of death. The Rules do not require that

a substitution be made within 90 days of the suggestion of death,

only that a substitution be asked. Plaintiff asked. The court was

empowered to set a time limit within which a substitution had to be

consummated, but the time limit it set was based on a misreading of

Jones v. Smith, 120 Ga. 642, 48 S.E. 134 (1904). Defendant
questioned that jurisdiction existed, and alleged that plaintiff
left no personal property in Georgia. Assuming that defendant's
attack on the jurisdiction of the rendering court was
permissible, (see discussion below), the burden was upon
defendant to show absence of jurisdiction, including jurisdiction
that might arise from the "property in the county" prong of
paragraph (2). The court could not find that jurisdiction was
lacking by pretermitting ruling on whether the cause of action
itself was "property in the county," on the ground plaintiff had
not asserted it in his motion to substitute.
the Rule.

Second, it appears on the face of the record that the probate

court, in acting on the Stolz application, made an error of fact

directly bearing on the issues before us. The petition accurately

sets out that plaintiff was a nonresident and accurately describes

the existence of Escareno's lawsuit. However, in granting the

petition, the probate court held: "It appears that said deceased

died a resident of said [Fulton] County, intestate." This

implicates paragraph (1) of § 15-9-31. We do not know what action

the probate court would have taken under a correct assessment of

the facts and an application of paragraph (2).

Third, this is a full faith and credit case. A panoply of

problems spring from that. See the full discussion inFehlhaber v.

Fehlhaber, 681 F.2d 1015 (5th Cir.1982), cert. denied, 464 U.S.

818, 104 S.Ct. 79, 78 L.Ed.2d 90 (1983). The court did not analyze

it in full faith and credit terms. 28 U.S.C. § 1738 requires that

a federal court must give to Georgia judgments "the same full faith

and credit as they have by law or usage in the courts [of

Georgia]." Even if the proceedings in the probate court were not

flawed as we have described, we would not be able to address with

any degree of confidence whether a Georgia court would give full

faith and credit to the judgment of a probate court entered in an

ex parte proceeding, appointing a temporary administrator for the

estate of a nonresident, when its jurisdiction is questioned in

another Georgia court by one who is not a party to the probate

court proceeding but is a party to the proceeding in the other

court in which the temporary administrator seeks to appear. We do
not know with assurance whether Georgia would even permit such a

reexamination. If permitted, a sunburst of questions emerge.

Bearing in mind Georgia's overall statutory scheme for

administration of decedents' estates and appointments of

administrators,3 what is the proper construction of paragraph (2)
of § 15-9-31? Under the first prong, is the cause of action

property in the county? Under the second prong, must the cause be

against one residing in the county? Is a nonresident corporation

a resident of the county for purposes of this provision if it can

be constitutionally served with process emanating from the county?

If it is the cause of action that must be "therein," when is a

cause "therein"? Once the controlling statutory provision[s] are

identified, if they have not been complied with, does the failure

appear on the face of the record? Is it merely an error subject to

3
Inter alia:

§ 15-9-30. Subject-matter jurisdiction; powers
and duties generally; copy of Official Code of
Georgia Annotated furnished to each judge.

(a) Probate courts have authority, unless otherwise
provided by law, to exercise original, exclusive, and
general jurisdiction of the following subject matters:

(2) The granting of letters testamentary and of
administration and the repeal or revocation of the
same.

§ 53-6-34: Temporary administration—Purpose;
duration; appeal.

(a) The judge of probate may at any time grant
temporary letters of administration upon any
unrepresented estate for the purpose of collecting and
taking care of the effects of the decedent.

See also, §§ 19-9-31 15-9-32 and 53-6-26, quoted
above.
correction by appellate review or is it a "jurisdictional" error

that stripped the court of its power to act and made its judgment

void? These are matters of Georgia law.

The district court in this case relied upon Diehl v. U.S., 438

F.2d 705 (5th Cir.1971), cert. denied, 404 U.S. 830, 92 S.Ct. 67,

30 L.Ed.2d 59 (1971). There the federal district court vacated its

order permitting a purported executrix (a former wife) to intervene

in the decedent's federal tax refund suit, because the Texas state

court appointment of the former wife as executrix was fraudulent,

having been obtained by acts defined as misrepresentations by Texas

law (allegations by the former wife that her Mexican divorce from

decedent was invalid). A temporary administrator was subsequently

appointed, but his appointment was invalid because the record of

the state court of Texas that appointed him revealed on its face

that the court lacked jurisdiction because the only asset was a

claim against the United States, the situs of which, under federal

law, was California.

In Simmons v. Atlantic Coast Line R.R. Co., 235 F.Supp. 325

(E.D.S.C.1964), the federal district court held that a South

Carolina temporary administrator had not been properly appointed.

The state court record revealed on its face that the administrator

had not taken the oath required by South Carolina statute, and the

court considered—or perhaps assumed without analysis—that, under

South Carolina law, taking the oath was a prerequisite to

qualification as administrator.

In neither Diehl nor Simmons was there a factual flaw by the

appointing court such as that made in this case. Also, neither
decision involved construing state statutes to determine whether

under the circumstances the appointing state court could properly

act. Nor does either speak to whether, if a Georgia probate court

did depart from circumstances authorizing it to act, the departure,

under Georgia law, would be jurisdictional in nature.

The courts of Georgia are the proper forum for unraveling the

skeins of this case in the first instance. And even that cannot be

done until the probate court acts on the correct facts. Orderly

disposition of this case calls for the Georgia courts to act first.

We, therefore, VACATE and REMAND to the district court.

Plaintiff should be allowed a reasonable time in which to again

present to a Georgia probate court the matter of appointment of an

administrator or temporary administrator, or such other

representative as may be appropriate under Georgia law, at which

time the probate court can address the matter, recognizing that

plaintiff was a nonresident, construe the Georgia statutes if

necessary, and consider its jurisdiction. Whether the actions of

that court will then be reviewable in the Georgia courts, and by

whom, and on what record, are matters to be addressed by the

Georgia courts in the first instance. Plaintiff should be given a

reasonable time after Georgia courts act in which to file a new

motion to substitute if plaintiff wishes to do so.

* * * * * *