APPEAL FROM THE SUPERIOR COURT, CHERYL M. LONG, J.
Before Schwelb and Ruiz, Associate Judges, and King,
Associate Judge, Retired.[fn*]
[fn*] Judge King was an Associate Judge of the court at the time of
argument. His status changed to Associate Judge, Retired, on
September 1, 1998.
The opinion of the court was delivered by: Ruiz, Associate Judge:
We review two consolidated appeals in which Old Republic Insurance Company ("Old Republic") challenges the orders of the Probate Division of the Superior Court entering judgment against Old Republic in the amount of $15,321.35 in the case of In re Estate of Felicia Spinner (the "Spinner case"), and $1,000 in the case of In re Estate of Natasha Hutchins (the "Hutchins case"). Old Republic, which as surety issued a general personal representative bond in the amount of $1,000 in each of the two estates, argues 1) that it was error for the trial court to enter judgment against the surety because the statute of limitations to bring an action against the surety had expired; and 2) even if judgment was properly entered, the court erred in entering judgment in excess of the $1,000 bond issued by Old Republic in the Spinner case. We do not address the first issue because appellant did not preserve it for appeal by first raising it before the trial court. We agree, however, that the trial court erred in entering judgment against Old Republic in excess of the surety bond. Because [717 A2d Page 363]
the trial court's subsequent amended order reducing the judgment to the bond amount was issued without jurisdiction as Old Republic had previously filed a notice of appeal with this court, we remand the judgment entered in the Spinner case to the Probate Division for reduction to the amount of the surety bond.
In re Estate of Felicia Spinner (No. 96-PR-837)
These two cases stem from an accident where three minor children died. The Spinner case commenced on February 3, 1986, with the filing of a petition for probate by John Spinner, father of one of the deceased minor children. The petition stated that decedent, infant Felicia Spinner, died at D.C. General Hospital on February 10, 1983, leaving no will or property other than a wrongful death action, and no debts other than funeral expenses unknown at the time of filing. Felicia Spinner was survived by her father, the petitioner, and her mother, Betty Hutchins. By order, the court appointed John Spinner as personal representative of the estate on February 4, 1986, after he had filed an undertaking in the sum of $1,000. *fn1
When John Spinner failed to meet audit requirements regarding the third and final account, the court held a summary hearing on August 8, 1989. Thereafter, the court entered an order removing John Spinner as personal representative and appointing a successor personal representative. *fn2 Unfortunately, the successor personal representative passed away before completing his duty of filing an inventory and account, thus making it necessary for the court, on February 26, 1993, to order that the matter be referred to the Auditor-Master for stating an account on behalf of the deceased successor personal representative. *fn2
After the Auditor-Master submitted her report to the probate court, Judge Long entered an order on May 15, 1996, granting judgment 1) in favor of the Auditor-Master for administrative costs and against John Spinner, removed personal representative, and Old Republic Surety Company, in the [717 A2d Page 364]
amount of $50 and 2) in favor of Sam Burgan, successor personal representative and against the removed personal representative and Old Republic Surety Company in the amount of $15,271.35, the amount owed to the estate after adjusting the settlement proceeds for lost interest and litigation and other expenses.
In re Estate of Natasha Hutchins (No. 96-PR-838)
Similarly, the Hutchins case commenced on February 3, 1986, with the filing of a petition for probate by Joyce Hutchins, mother of the deceased minor child. The petition stated that decedent, infant Natasha Hutchins, died on February 19, 1983, leaving no will or property other than a wrongful death action, and no debts except for undetermined funeral costs. She was survived by her mother and her father, Wayne Robinson. The court appointed Joyce Hutchins as personal representative of the estate on February 4, 1986, after Joyce Hutchins had filed an undertaking in the penal sum of $1,000. On July 16, 1986, Joyce Hutchins filed her Inventory Report, reporting as the sole asset of the estate the wrongful death and survival action.
After a summary hearing held on April 13, 1990, regarding the personal representative's failure to state an account, Joyce Hutchins was removed as personal representative on April 30, 1990. On March 3, 1991, the trial court referred the matter to the Auditor-Master to conduct a first and final accounting. After the Auditor-Master filed her report on September 6, 1995, *fn3 the trial court held a hearing to consider Joyce Hutchins' motion to amend the Report of the Auditor-Master. On May 13, 1996, the court entered an order against Joyce Hutchins and Old Republic and in favor of the Auditor-Master in the amount of $50 for administrative fees; and against Joyce Hutchins and Old Republic and in favor of Henry H. Brylawski, successor personal representative, in the amount of $950.
I. Expiration of the Statute of Limitations
Old Republic argues that it was improper for the Auditor-Master to propose judgment against the surety on these general personal representative bonds, and for the court to enter the judgments, because the applicable five-year statute of limitations had lapsed. Old Republic relies on D.C.Code § 12-301(6) as setting out the time frame within which an action on an executor's or administrator's bond must be brought. *fn4 Old Republic argues that in a claim against a bond, the cause of action accrues when a breach of the bonded obligation occurs, contending that in this case the cause of action accrued when a claim could be made against the bond, which is when an interested person was injured or damaged by some action of the personal representative. Applying these concepts, Old Republic argues, injury occurred and the claim accrued in July 1988, when the settlement funds ...