Mojo Properties, LLC v. Woods

313 P.3d 619, 2011 WL 3332459
CourtColorado Court of Appeals
DecidedAugust 4, 2011
DocketNo. 10CA1725
StatusPublished
Cited by1 cases

This text of 313 P.3d 619 (Mojo Properties, LLC v. Woods) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mojo Properties, LLC v. Woods, 313 P.3d 619, 2011 WL 3332459 (Colo. Ct. App. 2011).

Opinion

Opinion by

Judge BERNARD.

In this appeal, we resolve a question involving Colorado's statute establishing the priorities of those persons who seek appointment as a personal representative to administer the estate of a deceased. Specifically, we are asked to determine whether the nominee of one with a prior right to appointment stands in the shoes of his or her nominator with regard to that priority. We hold that the answer to this question is "yes." As a result, we affirm the district court's order.

I. Background

Mojo Properties, LLC (creditor), appeals the district court's order appointing Patrick J. Woods (nominee), as personal representative of the estate of Kathryn E. Newton (decedent).

Decedent died in December 2009. She was survived by two daughters and nominee, who had lived with her for approximately ten years. She did not leave a will. In March 2010, both daughters nominated nominee to act as personal representative of decedent's estate.

Creditor had been involved in business dealings with a construction company owned by nominee and decedent before her death. A dispute ensued, and creditor sued decedent, nominee, and the construction company in Denver District Court Case No. 0O9CV3278.

After decedent died, creditor requested, in May 2010, to be appointed as personal representative of the estate, identifying itself as one of the estate's creditors. The district court rejected creditor's argument that it had statutory priority to serve as personal representative of the estate and appointed nominee.

II. Discussion

A. General Principles of Statutory Construction

Statutory interpretation presents a question of law we review de novo. Bly v. Story, 241 P.3d 529, 533 (Colo.2010). "Our primary objective is to effectuate the intent of the General Assembly by looking to the plain meaning of the language used, considered within the context of the statute as a whole." Id. Further, we must avoid statutory construction that leads to an absurd result. Town of Erie v. Eason, 18 P.3d 1271, 1276 (Colo.2001).

B. Relevant Sections of Colorado's Probate Code

Section 15-12-208, C.R.S.2010, establishes the order of priority among persons seeking appointment as personal representative of an estate. Subsection (1) provides:

Whether the proceedings are formal or informal, persons who are not disqualified have priority for appointment in the following order:
(a) The person with priority as determined by a probated will including a person nominated by a power conferred in a will;
(b) The surviving spouse of the decedent who is a devisee of the decedent;
(b.5) A person given priority to be a personal representative in a designated beneficiary agreement made pursuant to article 22 of this title;
(c) Other devisees of the decedent;
(d) The surviving spouse of the decedent;
(e) Other heirs of the decedent;
(£) Forty-five days after the death of the decedent, any ereditor.

Thus, where, as here, an unmarried person dies intestate, his or her heirs have priority over creditors. An heir or group of heirs [621]*621may also nominate a person to serve as personal representative:

A person entitled to letters under paragraphs (b) to (e) of subsection (1) of this section ... may nominate a qualified person to act as personal representative.... When two or more persons share a priority, those of them who do not renounce must concur in nominating another to act for them or in applying for appointment,

§ 15-12-2038), C.R.S.2010 (emphasis added).

As pertinent here, subsection (5) states:

Appointment of ... a person who is nominated pursuant to subsection (8) of this section ... may be made in an informal proceeding. Before formal appointment of one without priority, the court must determine that those having priority, although given notice of the proceedings, have failed to request appointment or to nominate another for appointment and that administration is necessary.

§ 15-12-2083(5), C.R.S.2010.

C. Nominee's Priority over Creditor

It is undisputed here that, under section 15-12-208(1)(e), decedent's daughters, as her heirs, had priority to be appointed personal representative over creditor, whose priority is next in line under section 15-12-203(1)(f). However, nominee, absent his status as a nominee, has no statutory priority in his own right. Therefore, unless the daughters' priority was conferred to nominee, creditor had a prior right to appointment as personal representative.

We conclude that the plain language of the foregoing statutes provides nominee with the daughters' priority. We reach this conclusion for the following reasons.

First, subsection (1) establishes priorities, and subsection (5) adds that any nomination may be made informally. Subsection (8) states that a nominee "acts for" his or her nominators.

As relevant here, the verb "to act" means to "take action," and the preposition "for" means "in behalf of." Webster's Third New International Dictionary 20, 886 (2002). Thus, a nominee takes action in behalf of his or her nominator.

When read together, the language of these subsections leads us to conclude that a nominee, by acting for a person enumerated in paragraphs (b) to (e) of subsection (1), is the nominator's agent. See Black's Law Dictio-mary 68 (8th ed. 2004) (defining "agent" as "lolne who is authorized to "act for or in place of another; a representative"); MDM Group Associates, Inc. v. CX Reinsurance Co. Ltd., 165 P.3d 882, 889 (Colo.App.2007)("[TJhe principal ... entrusts business to the agent to act for the principal's benefit.").

Because an agent generally represents a principal contractually, he or she may take authorized actions on the principal's behalf that bind the principal. See Grease Monkey Int’l, Inc. v. Montoya, 904 P.2d 468, 472 (Colo.1995). The existence of this authority leads us to conclude that a nominee, as the nominator's agent, stands in the nominator's shoes, and, thus, assumes the priority of the nominator.

Further, subsection (5) conditions a court's power to appoint a person without statutory priority as a personal representative on a determination that all persons who have priority have not requested such an appointment, and that they have not nominated another person for appointment. This language implies that nominees have the priority of their nominators.

Second, our interpretation is consistent with the general policies of the Colorado Probate Code set forth by the legislature. The General Assembly has declared that the Colorado Probate Code shall be construed liberally and "applied to promote its underlying purposes and policies." § 15-10-102(1), C.R.S.2010.

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313 P.3d 619, 2011 WL 3332459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mojo-properties-llc-v-woods-coloctapp-2011.