Rivera v. Estate of Rivera
Opinion
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5 IN THE SUPERIOR COURT OF GUAM 6
7 MARINA C. RIVERA, aka MARINA C. T A GALA 8 CIVIL CASE NO. CV 0854-14 9 Plaintiff,
10 DECISION AND ORDER v. II ESTATE OF FRANCISCO L. RIVERA, 12 and DOES 1-5,
13 Defendants. 14
16 INTRODUCTION 17 This matter came before the Honorable Arthur R. Barcinas upon the Plaintiff Marina C. 18 Rivera's September 16, 2014 Motion for Order for Publication of Summons. Attorney Ladd A. 19
20 Bauman represented the Plaintiff, and the Defendant is an un-administered estate that has not
21 appeared or retained counsel. Having determined that oral argument is unnecessary, for the 22 reasons set forth below, the Plaintiffs Motion for Order for Publication of Summons is 23 DENIED and the case is DISMISSED. 24 BACKGROUND 25
26 Marina C. Rivera ("the Plaintiff') was formerly married to Francisco L. Rivera, now
27 deceased. The parties divorced in 1986. Before their divorce, they owned a home, namely Lot 28 Number 16, Block 2, Tract 137, Dededo, Guam. The location is variously described as 157 Decision and Order CV 0854-14; Rivera v. Estate of Rivera
Santa Lourdes St., Harmon, Guam. Certificate of Title Registration Number 29994 registers the
2 real estate to the pair of them in fee simple. The Plaintiff states that the real estate was granted
3 to her in the divorce settlement. However, the settlement agreement was not recorded and 4 cannot be found. 5 The Plaintiff has obtained Waivers of Service and Consent to Default Judgment from 6 Franklin S. Rivera, Annette M.R. Johnston, Joanne R. Delgado, and Monica C. Rivera, the 7
8 children of the Plaintiff and her late former husband. The Plaintiff has filed a complaint to quiet
9 title to the real estate against "Estate of Francisco L. Rivera and Does 1-5." No administrator or 10 executor of this estate is named as a defendant. Nothing in the record indicates that any petition II to probate a will purportedly executed by Francisco L. Rivera, or any other petition to 12
13 administer his estate, has been filed. The Plaintiff seeks an order for publication of summons.
14 DISCUSSION 15 Rule 4( o) of the Guam Rules of Civil Procedure sets forth the procedures for service by 16 publication of summons and permits it "[w]henever a statute or order of court thereunder 17 provides ... " GRCP 4(o). Guam's statute governing service by publication of summons is 18
19 codified at 7 GCA § 14106, and, in relevant part, states as follows:
20 Where the person on whom service is to be made has departed from Guam, and cannot, after due diligence, be found in Guam, or conceals himself to avoid the 21 service of summons, or is a corporation having no officer, or other person upon 22 whom service may be served who, after due diligence, can be found in Guam ... such court or judge may make an order that the service be made by the 23 publication of the summons and by mailing the complaint and summons. 24 7 GCA § 14106(a) (2005). The statute envisions either "person[s]" or "corporation[s]" being 25 subject to summons by publication. Id. 26 The estate of a decedent cannot be a party to an action without being represented, and a 27
28 grant of administration is necessary to provide such a party. 33 C.J.S. Executors and
Page 2 of4 Decision and Order CV 0854-14; Rivera v. Estate of Rivera
Administrators § 5 (1942). Estates are not natural or artificial persons, and they lack legal
2 capacity to sue or be sued in their own name. Wisemantle v. Hull Enterprises, Inc., 432 N.E.2d
3 613, 616 (Ill. App. Ct. 1981); see also Correa v. Estate of Hascall, 850 N.W.2d 770, 774 (Neb. 4 2014) (holding that when an estate has been closed and the personal representative discharged, 5 there is no viable entity or person whom the plaintiff may sue). A probate estate is "a collection 6 of assets and liabilities," which, "has no capacity to sue or be sued or to defend an action," and 7
8 any litigation must be maintained by, or against, the administrator or executor. Smith v.
9 Cimmet, 199 Cal.App.4th 1381, 1390-91 (Cal. Ct. App. 2011). 10 When creditor or other plaintiff has a claim against a decedent's estate, instead of suing II the umepresented estate, by long-standing common law rule the creditor may compel 12
13 administration to subject an estate to the payment of debts. See Ricard v. Williams, 20 U.S. 59,
14 5 L. Ed. 398 (1822); see also McCoy v. Morrow, 18 Ill. 519, 1857 WL 6717 (1857); see also 31
15 Am Jur. 2d Executors and Administrators § 15 (2002). The creditor may petition a court of 16 competent jurisdiction to appoint an administrator. See Williams v. Grossman, 293 N. W.2d 315 17 (Mich. 1980); see also Wisemantle v. Hull Enterprises, Inc., 432 N.E.2d 613,616 (Ill. App. Ct. 18
19 1981 ); see also 31 Am Jur. 2d Executors and Administrators § 1181 (2002). This common law
20 rule is borne out by Guam's Probate Code, which at 15 GCA § 1805(a)(8) puts creditors in line 21 to be appointed as administrator, and in § 1805(e) permits a creditor to petition for letters of 22 administration. See 15 GCA §§ 1805(a)(8), (e) (2005). 23 In her complaint, the Plaintiff names as defendants the "Estate of Francisco L. Rivera 24
25 and Does 1-5." Pl.'s Com pl. Sep. 16, 2014. On the Plaintiff's information and belief, no said
26 estate has not been opened and is not being administered. Pl.'s Decl., Sep. 16, 2014. The 27 Plaintiff has also obtained waivers from certain persons, not named as defendants, consenting to 28
Page 3 of4 Decision and Order CV 0854-14; Rivera v. Estate of Rivera
her quiet title action. Franklin S. Rivera, Annette M.R. Johnston, Joanne R. Delgado, and
2 Monica C. Rivera, who, from the record, appear to be the children of the Plaintiff and the late
3 Francisco L. Rivera, have all signed a document entitled Waiver of Service and Consent to 4 Default Judgment. Waiver of Service and Consent to Default J., Sep. 16, 2014. The document 5 states that they have received the complaint, consent to the Plaintiff quieting title to 157 Santa 6 Lourdes St., Harmon, Guam, and consent to resolution of the case on the basis of default. Id. 7
8 The Plaintiff attempts to sue "a collection of assets and liabilities," that is not
9 represented by any human being who may appear to contest the suit. The Plaintiff also moves 10 for summons by publication "to allow the court to obtain jurisdiction over [Francisco L. II Rivera]." Pl.'s Decl., Sep. 16, 2014. But the summons by publication statute only permits 12
13 persons and corporations to be so summonsed, and an un-administered estate qualifies as
14 neither. See 7 GCA § 14106(a) (2005). A decedent's estate may only be sued by and through a
15 representative such as an administrator, and if the estate in un-administered then a creditor or 16 other claimant may seek to have one appointed. 17 CONCLUSION 18
19 For the reasons set forth above, the Plaintiffs Motion for Order for Publication of
20 Summons is DENIED. Because the Plaintiff has named no defendant who legally capable of 21 being sued over whom this Court has jurisdiction, the Court sua sponte DISMISSES the case. 22
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