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.
* * * * * *