Soules v. Curtis

Utah State Courts - Opinions - Soules v. Curtis

IN THE UTAH COURT OF APPEALS

----ooOoo----

Wayne J. Soules,

Plaintiff and Appellant,

v.

Dale H. Curtis,

Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020542-CA

F I L E D
(September 5, 2003)

2003 UT App 299

-----

Third District, Salt Lake Department

The Honorable J. Dennis Frederick

Attorneys: James C. Haskins, Salt Lake City, for Appellant

Terry M. Plant and Cory D. Memmott, Salt Lake City, for Appellee

-----

Before Judges Jackson, Bench, and Davis.

JACKSON, Presiding Judge:

Wayne Soules appeals from the trial court's dismissal of his claim against Dale Curtis, who is now deceased. We affirm.

Under rule 25 of the Utah Rules of Civil Procedure, a surviving party who is unaware of the identity of the personal representative of a deceased opposing party may file "a motion seeking to substitute the 'Personal Representative of the Estate of the Decedent' or 'John/Jane Doe'" within ninety days of the filing of the suggestion of death. Stoddard v. Smith, 2001 UT 47,¶19, 27 P.3d 546. Instead of complying with the standards set forth in Stoddard, Soules attempted to substitute four of the siblings of Dale Curtis, without regard for whether they had actually been named as Curtis's personal representatives. If the motion had been granted, it would have exposed Curtis's surviving siblings to personal liability for a debt that should properly attach only to Curtis's estate. Such a maneuver is not allowed under the terms of either rule 25 or Stoddard. The trial judge was therefore correct in striking Soules's motion for substitution.(1)

Soules next argues that the trial court erred in dismissing his complaint with prejudice. Under Donahue v. Smith, a failure to comply with rule 25 is presumed to warrant a dismissal with prejudice. 2001 UT 46,¶8, 27 P.3d 552. Further, the decision as to whether the presumption of prejudice has been overcome is a decision that is left to the discretion of the trial court. See id. at ¶8 n.3. Here, Soules's insistence that the dismissal with prejudice produces a "harsh" result is simply insufficient to overcome the trial court's discretion.

Accordingly, we affirm.

______________________________

Norman H. Jackson,

Presiding Judge

-----

WE CONCUR:

______________________________

Russell W. Bench, Judge

______________________________

James Z. Davis, Judge

1. Soules also argues that the trial court erred in holding that the failure to include a notice of hearing was fatal to his motion to substitute. Because we hold that the attempt to substitute the siblings of Curtis was itself fatal to the motion to substitute, we need not reach the merits of this issue.