Duty of Defense Counsel Limited in Failure to Revive Action

March 24, 2008

The Court of Appeals published, Frank v. Estate of Enderle, which dealt with the failure to revive an action within one year after the death of the defendant. In this case, the main issue was whether the actions of defense counsel estopped the application of this rule.

In this case defense counsel told the court and opposing counsel of the death of her client. The client did not have an estate probated. Plaintiff’s attorney requested information from the defense attorney to assist in having the public administrator appointed. The defense attorney provided the information in her possession through emails, including a copy of the death certificate and obituary. Unfortunately, the plaintiff’s attorney did not have the estate probated until after the one year statute had passed.

The trial court granted defense counsel’s third motion to dismiss, holding that the statute of limitation to revive had passed. On appeal the plaintiff’s attorney argued that the defense attorney’s communications were meant to mislead the plaintiff into believing that further information regarding the name of heirs would be forthcoming. Plaintiff argued the defendant was estopped from arguing the statute of limitation since the sole purpose of that communication was to deceive the plaintiff’s attorney into inaction.

The Court of Appeals disagreed. It did not find any intentional attempt by the defense attorney to mislead or misrepresent the information regarding her client’s death. Nor, did it believe that the failure of the plaintiff to revive the action was the result of anything the defense attorney did. Instead it was the failure of the plaintiff’s attorney to properly investigate and take steps to revive the action after he became aware of the defendant’s death.

Editor’s note: The ethical obligation of the defense attorney in this instance is set forth in Harris v. Jackson, 192 S.W.3d 297, 305 (Ky. 2006), which requires the attorney to place the opposing party and the court on notice of the death of the client. Here the obligation was fulfilled. There is no statutory or ethical duty to provide all the information needed to open a probate case. The burden of taking the appropriate steps to revive the action is on the plaintiff.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: