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Law Offices of Michael E. Douglas
P.O. Box 251551
Woodbury, Minnesota 55125-6551
   

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 mdouglas@injurylawtwincities.com

 

Johnson v. Gregory County Auditor: BANKRUPTCY | APPELLATE PROCEDURE | ATTORNEY - dead men file no adversary proceedings; attorney showed no appointment for probate estate

1 Honorable Charles L. Nail, Jr., United States Bankruptcy Court, District of
South Dakota.
United States Bankruptcy Appellate Panel
FOR THE EIGHTH CIRCUIT
_______________
No. 09-6005
________________
In re: *
*
Rodney Arthur Johnson, *
*
Debtor. **
Rodney Arthur Johnson, *
* Appeal from the United States
Plaintiff - Appellant, * Bankruptcy Court for the District of
* South Dakota
v. **
Gregory County Auditor, *
*
Defendant - Appellee *
_____
Submitted: February 25, 2009
Filed: March 11, 2009
_____
Before FEDERMAN, MAHONEY, and VENTERS, Bankruptcy Judges.
_____
VENTERS, Bankruptcy Judge.
This is an appeal of the bankruptcy courts order denying a motion for a default
judgment and dismissing an adversary complaint seeking damages for alleged
violations of the automatic stay or discharge injunction.1 We dismiss the appeal.
2
Although the caption names the Debtor, Rodney Arthur Johnson, as the
Plaintiff-Appellant, Mr. Johnson is not a party to this appeal, nor was he a party to the
adversary proceeding, because he died before the complaint was filed in September
2008. Douglas Kettering, the attorney who represented the Debtor in his bankruptcy
case prior to his death, filed the underlying adversary proceeding as well as this
appeal.
Mr. Kettering has not shown that he has any authority or standing to pursue this
appeal, or to bring the underlying adversary action, after the death of his client. The
attorney-client relationship between Mr. Kettering and the Debtor terminated upon the
Debtors death. 7A C.J.S. Attorney & Client 274 (2008). See also Kasting v.
American Family Mutual Insurance Company, 196 F.R.D. 595, 598 (D. Kan. 2000).
An attorney cannot file a suggestion of death on behalf of a former client, let alone
initiate an adversary proceeding or pursue an appeal. Id.; In re Klein, 36 B.R. 390,
392 (Bankr. E.D. N.Y. 1984).
In the absence of any proof that Mr. Kettering has been appointed as the
attorney or representative of the Debtors probate estate, Mr. Kettering does not have
standing to pursue this appeal (nor did he have standing to initiate the underlying
adversary action). We therefore dismiss this appeal for lack of jurisdiction. See Jones
v. Gale, 470 F.3d 1261, 1265 (8th Cir. 2006) (standing is a prerequisite to subject
matter jurisdiction).
Appeal dismissed.
 

 
 
 

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Work-Related Injury
Wrongful Death
Dog Bite
Slip and Fall
Other:


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  your life?

 


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  professionals have you seen?

 


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  Is Insurance Involved?
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        this.

Someone else's insurance
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        offer.

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        offer.

  Were there any witnesses?
Bystanders Witnessed This.
Police Responded and Filed
        a Police Report

Police Responded but Did
        Not File a Police Report


 

 

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