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06/14/93 EASTER SEAL SOCIETY FOR DISABLED CHILDREN

DISTRICT OF COLUMBIA COURT OF APPEALS


June 14, 1993

EASTER SEAL SOCIETY FOR DISABLED CHILDREN, ET AL, APPELLANTS
v.
JEFFREY R. BERRY, ET AL, APPELLEES

Appeal from the Superior Court of the District of Columbia; (Hon. Eugene N. Hamilton, Trial Judge)

Before Steadman, Schwelb, and King, Associate Judges

The opinion of the court was delivered by: King

KING, Associate Judge: Appellants appeal from a Superior Court order dismissing with prejudice their complaint challenging the validity of a will. Appellants contend that the trial court erred in dismissing their complaint either on the ground that it was not filed in a timely manner or that it was improperly verified. *fn1 We agree with appellants and reverse the order of the trial court.

I.

The action in the trial court was initiated to contest the validity of the Last Will and Testament of Sue L. Firestone, dated February 10, 1987, on the ground that Ms. Firestone was not "of sound and disposing mind" when she executed the will. The 1987 will purported to replace Ms. Firestone's prior will, dated September 10, 1970, which had directed that her estate, after payment of all just debts and funeral expenses, he distributed to a number of charities specified in that will. Appellants are beneficiaries named in Ms. Firestone's 1970 will, who were not named a beneficiaries in the 1987 will.

Following Ms. Firestone's death on January 11, 1991, the Superior courts appointed appellee Jeffrey R. Berry on April 24, 1991, as the personal representative of Ms. Firestone's estate, and admitted her will to probate. See D.C. Code §§ 20-311, -312 (1989). The notice of appointment was first published on May 9, 1991, and it provided, inter alia, that any objections to the probate of the decedent's will must be filed on or before November 9, 1991. November 9, 1991 was a Saturday.

On November 12, 1991, appellants filed a complaint contesting the validity of the 1987 will, contending that Ms. Firestone was not of sound mind when she executed it. Appellees filed a Motion to Dismiss Complaint to Contest the Validity of a Will for Lack of Jurisdiction. They argued that the complaint should be dismissed because: 1) the complaint was not filed within the six-month period prescribed by statute, and 2) the complaint violated the statutory verification requirement since it was verified by an attorney and not by the actual party. In support of their first point, appellees argued that while anyone may file a verified complaint to test the validity of a will "within 6 months following notice by publication of the appointment . . . of a personal representative," see D.C. Code § 20-305 (1989), that provision is a "substantive statutory provision enacted by the Council of the District of Columbia" creating the right of action that appellants purport to assert, and is therefore jurisdictional. Accordingly, appellees argued that even though the six-month time period for contesting the will ended on a Saturday, Super. Ct. Civ. R. 6(a) cannot justify filing on the following Tuesday (Monday was Veterans' Day, a legal holiday) because Super. Ct. Civ. R. 82 provides that the Superior Court Rules of Civil Procedure "shall not he construed to extend . . . the jurisdiction of this court." Under appellees' interpretation, the complaint would have been timely only if it had been filed on or before November 9, 1991.

In support of their second argument, i.e., that verification must "be made and executed by the party seeking to challenge the will," appellees contended in their motion to dismiss that verification by appellants' trial counsel was inadequate. They maintained that officers of the plaintiff corporations, the actual parties to the action, should have verified the complaint, and that failure to provide such verification rendered the complaint insufficient to invoke the jurisdiction of the court under § 20-305.

Appellants, in their opposition to the motion to dismiss, contended that the complaint was timely since D.C. Code § 20-305 permits a complaint to be filed "within 6 months" of the publication of a personal representative, and the six-month time period ended on a Saturday. Appellants maintained that Super. Ct. Civ. R. 6(a) extended the time for filing to November 12, 1991, the day of actual filing, because there was an intervening Sunday and a Monday holiday. They also argued that verification by an attorney was proper under Super. Ct. Civ. R. 9-I, which expressly permits an attorney to provide verification when a corporation is a party.

After the motion and response were filed, the trial court entered an order which stated: "Upon consideration of Personal Representative Jeffrey R. Berry's and defendant legatees' Motion to Dismiss Complaint' to Contest the Validity of a Will for Lack of Jurisdiction, and any opposition thereto, it is this 5th day of February, 1992, hereby ORDERED that the Motion to Dismiss be GRANTED, and the Complaint is hereby DISMISSED with prejudice." We conclude that the trial court erred in so ordering and we therefore reverse.

II.

Appellees' contention that Super. Ct. Civ. R. 6(a) is inapplicable to the circumstances of this case is based on two separate and independent grounds. First, appellees argue that the six-month filing requirement is "jurisdictional," and therefore Rule 6(a) cannot apply to extend that time period since Rule 82 provides that the rules of court may not be construed to extend the jurisdiction of the trial court. Second, appellees argue that even if the filing requirement is a statute of limitation, rather than a jurisdictional element, Rule 6(a) should not be read to apply to statutes of limitation. We reject both contentions.

a.

Super. Ct. Civ. R. 6(a) provides that:

in computing any period of time prescribed or allowed by these rules, by order of the court, or by applicable statute, the day of the act . . . from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, a Sunday, or a legal holiday, . . . in which event the period runs until the end of the next day which is not one of the aforementioned days.

(Emphasis added). Appellees first contend that Rule 6(a) is inapplicable to D.C. Code § 20-305, because the six-month period prescribed in the statute is a jurisdictional element of the right of action initiated by appellants. Appellees maintain that because "the very statutory sentence which creates the cause of action to challenge a will includes the condition for its exercise within the prescribed six-month period," that six-month period is a jurisdictional element of the cause of action as opposed to a statute of limitation. In support for that position, appellants rely upon cases describing "statutes of creation." See, e.g., Ewing v. Risher, 176 F.2d 641, 644 (10th Cir. 1949) (in a statute of creation, the time limitation "defines and controls the right [of action] and the right ceases to exist if not asserted within the time limit fixed in the statute therefor"); Matheny v. Porter, 158 F.2d 478, 479 (10th Cir. 1946) (federal price control statute "is a statue of creation, and when the period fixed by its terms has run, the substantive right and the corresponding liability end . . . . The commencement of the action within the time is a indispensable condition of the liability"); *fn2 see also 54 C.J.S. Limitation of Actions § (1987) ("a distinction exists between statutes of limitation and special statutory limitations qualifying a given right in which time is made an essence of the right created . . . . statutes which create substantive rights unknown to common law and in which time is made an inherent element of the right so created, are not 'statutes of limitation' in the sense of merely suspending the remedy and not the right of action").

Appellees then attempt to distinguish between "statutes of creation," i.e., those laws creating a cause of action which include a time limitation in which to initiate the action, and statutes which permit an action to be initiated pursuant to a general statute of limitation (e.g., any personal injury claim must be brought within three years of the date of injury (D.C. Code § 12-301(8) (1989)). They concede that there is no District of Columbia authority applying this distinction. Indeed, no such distinction is ordinarily drawn. The general practice is to treat all time limitations as statutes of limitation. See 4A. CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1163 (1987) (discussing the view that Rule 6(a) "is inapplicable to newly-created statutory remedies" under the minority view which holds that the computation provisions of Rule 6 do not apply to statutes of limitation.) We conclude, for the reasons below, that the distinction advanced by appellees is without significance, and that the case law provides significant support for applying Rule 6(a) in the circumstances of this case.

In Watson v. Scheve, 424 A.2d 1089 (D.C. 1980), the applicable statute permitted the owner of property sold for taxes to redeem such property "at ay time within two years after the last day of sale." Id. at 1092 (quoting D.C. Code § 47-1005). The two years from the last day of sale ended on a Sunday. The court ruled that the property could properly be redeemed on the following Monday. Id. Watson involved a law that would, under appellees' definition, be characterized as a statute of creation since the statute gave the property owner the right to redeem property and simultaneously limited the time in which he was authorized to pursue that right. Similarly in the instant case, D.C. Code § 20-305 defines the right to contest a will and limits the time within which a contest be instituted. Thus, we conclude, based on Watson, that where a statute grants a right ad simultaneously limits the time period within which to pursue that right, the time period is not, absent an expression to the contrary in the statute, a jurisdictional element of the cause of action.

Moreover, we do not agree that § 20-305 is a statute of creation in the sense that it creates a new right. The right to challenge the validity of a will was codified in the District of Columbia as early as 1901. See 31 Stat. 1212, ch. 854, § 137 (1901). Furthermore, a statute establishing the right to challenge a will is vastly different from one which literally creates a right previously unknown. See, e.g., Ewing v. Risher supra, 176 F.2d 641 (suit to recover benefits under Social Security Act, 42 U.S.C.A. § 402); Matheny v. Porter, supra, 158 F.2d 478 (involving the Emergency Price Control Act, 50 U.S.C.A. § 901); Wiss v. Weinberger, 415 F. Supp. 293 (E.D. Pa. 1976) (suit to recover disability benefits under Social Security Act, 42 U.S.C.A. § 301); Davidson v. Secretary of Health, Education and Welfare, 53 F.R.D. 270 (N.D. Ok. 1971) (same); Zeller v. Folsom, 150 F. Supp. 615 (N.D.N.Y. 1956) (same). The statutes under review in the cases cited created new causes of action which were not recognized under common law. The right to challenge the validity of a will, however, is not recent, nor is it apparent that the right would not exist independent of a statute authorzing such a challenge. Accordingly, we reject appellees' contention that § 20-305 created a new right.

Finally, we note that even if the statute in question is jurisdictional, it does not follow that a filing limitation cannot he extended. For example, the Supreme Court has held that the time for filing a notice of appeal can he extended if the last day of the time period falls on Saturday. Jones & Laughlin Steel Corp. v. Gridiron Steel Co., 382 U.S. 32, 33, 15 L. Ed. 2d 26, 86 S. Ct. 152, (1965). It is settled law that time limits for filing notices of appeal are jurisdictional. District of Columbia Public Employee Relations Board v. District of Columbia Metropolitan Police Department, 593 A.2d 641, 643 (D.C. 1991) ("time limits for filing appeals with administrative adjudicatory agencies, as with courts, are mandatory and jurisdictional matters") (citations omitted); 442 A.2d 957, 958 (D.C. 1982) (time limits established by this court are mandatory and jurisdictional) (citations omitted). Thus, even if we agreed with appellees that the six-month period prescribed in § 20-305 was jurisdictional, under the authority of Jones & Laughlin, supra, filing time limits can he extended if the final day of the period falls on a Saturday.

b.

In addition, appellees contend that even if the six-month limitation in § 20-305 is a statute of limitation -- as we hold that it is -- Rule 6(a) may not be applied to permit a filing of the complaint after the Saturday when the six months actually expired. We disagree. The 'majority rule' is that the Rule 6 exclusion of final Saturdays, Sundays, and legal holidays is applicable to federal statutes of limitations." 4A WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE, (supra) , § 1163. *fn3 Our own cases establish that the rule in the District of Columbia is the same as the majority view, namely, that Rule 6(a) is properly applied to statutes of limitation. See Poole v. Lowe, 615 A.2d 589, 592 n.6 (D.C. 1992) (where three-year statute of limitation for a legal malpractice claim ended on a Saturday, under Super. Ct. Civ. R. 6(a) a complaint filed the following Monday would be timely); Banks v. Chesapeake and Potomac Telephone Co., 256 U.S. App. D.C. 22, 24, 802 F.2d 1416, 1418 (1986) (where last day of three-year statute of limitation for a personal injury claim fell on Sunday, FED. R. CIV. P. 6(a) extended the period an additional day); Jones & Laughlin Steel Corp. v. Gridiron Steel Co., supra, 382 U.S. at 32-33 (where statute and rules required notice of appeal to be filed within thirty days from judgment and the thirtieth day fell on a Saturday, Rule 6(a) applied thereby permitting filing on the following Monday); Union National Bank v. Lamb, 337 U.S. 38, 40, 93 L. Ed. 1190, 69 S. Ct. 911 (1948) (where 28 U.S.C. § 2101(c) required an appeal to the Supreme Court to be instituted within ninety days of entry of a civil judgment or decree, and the ninetieth day fell on a Sunday, the appeal could be filed consistently with Rule 6(a) on the following day); *fn4 see also Watson v. Scheve, supra, 424 A.2d at 1092 (where two-year period for redemption ended on Sunday, property owner could redeem property the following Monday); People's Counsel v. Public Service Commission of the District of Columbia, 451 A.2d 90, 91 (D.C. 1982) (where Commission was required to respond to a motion for reconsideration within thirty days or else be deemed to have denied a petitioner's motion, if the thirtieth day fell on a Sunday or legal holiday, the Commission had until the next day which was not a Sunday or legal holiday to respond). *fn5 We conclude, therefore, in accordance with the great weight of authority in this and other jurisdictions, that Super. Ct. Civ. R. 6(a) is properly construed to apply to statutes of limitation.

Appellants' time for filing a complaint expired on a Saturday and Rule 6(a) provides that the filing is timely if filed by the following Tuesday (because of the intervening Sunday and legal holiday). The complaint was in fact filed on that Tuesday and therefore we hold that it was timely under D.C. Code a § 20-305.

III.

Appellants also contend that the trial court erred in dismissing their complaint for inadequate verification. They claim that the verification therein meets the requirements of Super. Ct. Civ. R. 9-I. *fn6 Appellees, however, argue that Rule 9-I is inapplicable to this probate proceeding, and that appellants' verification was insufficient because: 1) a litigating attorney, rather than a party, verified the complaint, and 2) appellants did not satisfy the requirements of D.C. Code § 20-102(a) (1989).

Section 20-305 provides that "any person may file a verified complaint to test the validity of a will . . . ." Appellees argue that this verification requirement "is based on the public policy that imposes an important condition on the right of a party to delay and disrupt the orderly administration of a decedent's estate by instituting a self-seeking challenge." They maintain that public policy requires that a party submit the verification in order to "discourage self-seeking will contest complaints" and to ensure that the challenger be appraised of all pertinent facts.

D.C. Code § 20-102(a) provides that:

when a writing is required by this title to be verified, verification shall be sufficient if the writing is signed by the person required to make the verification and contains the following representation:

"I do solemnly declare and affirm under penalty of law that the contents of the foregoing document are true and correct to the best of my knowledge, information and belief."

According to appellees, "the person required to make verification" must be an actual party to the suit. In the present case, the litigating attorney for the corporate plaintiffs signed the verification. *fn7 Although § 20-102(a) itself does not specify what person is required to provide verification, we conclude that when a corporate party is involved, the litigating attorney representing the corporation may properly verify a complaint.

Super. Ct. Prob. R. 107(a) provides, inter alia, that an action to contest a will in accordance with § 20-305 "may be commenced by any party in interest by filing a verified complaint with the Register of Wills. Except as hereinafter provided the procedure in such actions . . . shall be governed by the Superior Court Rules of Civil Procedure." Civil Rule 9-I(c) provides that "a verification . . . may be made by an officer, agent or attorney. . . when a corporation is a party" (emphasis added). Because Probate Rule 107(a) specifically provides that the Superior Court Civil Rules apply in an action pursuant to a § 20-305, and because we find no provisions in the probate statute precluding the litigating attorney for a corporation from verifying a complaint, we conclude that Rule 9-I applies in this probate proceeding, and that the complaint should not have been dismissed on that basis.

Appellees argue, for the first time on appeal, *fn8 that the verification submitted by plaintiffs was also inadequate because it did not conform to the requirements of § 20-102. Specifically, appellees contend that the verification did not declare and affirm under penalty of law," but instead simply recited that trial counsel verily believed the facts in the proceeding to be true. "Only in exceptional cases where inJustice might otherwise result will an appellate court be prompted to review questions of law which were not raised at trial." Wagshal v. District of Columbia, 430 A.2d 524, 527 (D.C. 1981) (quoting Bullock v. Young, 118 A.2d 917, 919 (D.C. 1955)). Although the presumptive rule that this court will not consider questions raised for the first time on appeal normally refers to issues raised by an appellant, rather than by the appellee, we conclude, under the circumstances of this case, that the rule should also apply to an appellee who was the moving party below.

If appellees had raised this claim in the trial court, and if the trial court had found the verification to be inadequate, appellants could then have moved the trial court to allow them the opportunity to submit a proper verification. *fn9 An imperfect verification is not a jurisdictional defect. Johnston Broadcasting Co. v. FCC, 85 U.S. App. D.C. 40, 44, 175 F.2d 351, 355 (1949) (holding that initial failure to verify a complaint can be cured by a subsequent verification, and noting that "generally speaking, it seems to be held in the state courts that a statutory requirement for a verified pleading is not jurisdictional but can be . . . cured by amendment") (footnote omitted citing cases); In re Royal Circle of Friends Building Corporation, 159 F.2d 539, 541 (7th Cir. 1947) ("precedents hold) [] that imperfect verification is not a jurisdictional defect") (footnote omitted citing cases); 5A WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE, (supra) , § 1339 (1990). Accordingly, even though appellants filed their complaint on the last day permitted by the statute of limitation, they could have later filed an amended verification without the action being time-barred. See Yuri Yajima v. United States, 6 F.R.D. 260, 262 (E.D.N.Y. 1946) (filing of unverified complaint where verified complaint is required tolls the statute of limitation, and defect may be corrected by amendment); see also Super. Ct. Civ. R. 15(c) (amendments to complaints relate back to the date of the original pleading); Strother v. District of Columbia, 372 A.2d 1291, 1297-98 (D.C. 1977) (the rationale behind Rule 15 is that where a defendant is put on notice that the plaintiff seeks to enforce a claim against him, "there is no cognizable prejudice to the defendant when, after the running of the statute of limitations period, plaintiff is allowed to amend the complaint to reassert the claim that was deficiently stated the first time") (citations omitted). *fn10 Because the defect, if any, in the verification could have been corrected by an amendment had appellees made this argument below, we conclude that because appellees failed to raise this argument in the trial court, we need not consider it on appeal. *fn11

Accordingly, the judgment appealed from is hereby reversed and the case remanded for further proceedings consistent with this opinion.

Reversed.


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