On October 29, 1979, Elizabeth A. Lynn entered into an agreement with respondents Thomas R. Stutchman and Fallon Convalescent Center, Inc. ("FCC") whereby Stutchman, individually and on behalf of FCC, assigned to Lynn certain debts allegedly owed to them. In return, Lynn promised, inter alia, not to enforce any judgment that might be entered against Stutchman in a pending action.
On October 24, 1985, John M. Woodley, on behalf of the Lynn Estate, brought the suit that is the subject of this appeal against Stutchman and FCC.
Subsequently, Gary Woodbury, the Nevada attorney employed to pursue the action, learned that Shaw, rather than Woodley, was the executor of Lynn's Estate and should have been named plaintiff. Pursuant to a stipulation between the parties, the district court ordered that Shaw be substituted for Woodley. Counsel for Stutchman and FCC later learned that neither Woodley nor Shaw ever obtained authorization to act as executor of Lynn's Estate in this state.
On September 11, 1987, almost two years after the complaint was filed, Stutchman and FCC moved for summary judgment. They argued that Woodley, who never had authority to act on behalf of Lynn's Estate, lacked "standing" to bring the suit and that Shaw, although executor of Lynn's Estate in Washington, had neither initiated ancillary administration nor qualified to act as executor of Lynn's Estate in Nevada. Thus, according to Stutchman and FCC, the district court was without subject matter jurisdiction and they were entitled to summary judgment as a matter of law.
Following a hearing on the motion, the district court ruled that Shaw's authorization to act as executor in Washington lacked effect in this state and, therefore, Shaw could not have initiated the suit. Apparently agreeing that it lacked jurisdiction, the district court granted summary
Shaw concedes that in the absence of authorization by statute, a foreign executor's commencement of suit in this state is defective. He argues, however, that the defect is one of capacity, not jurisdiction. We agree.
Most courts that have addressed the issue Shaw raises have concluded that a foreign representative's failure to obtain authorization to act on behalf of an estate involves a defect of capacity rather than subject matter jurisdiction. See also LeFebure v. Baker, 69 Mont. 193, 220 P. 1111 (1923). See also Canfield v. Scripps, 15 Cal.App.2d 642, 59 P.2d 1040, 1042 (1936) (right of foreign administrator to maintain action involves only question of capacity to sue); 6 C. Wright & A. Miller, Federal Practice and Procedure, § 1559 (1971) ("Capacity has been defined as a party's personal right to come into court, and should not be confused with the question of whether a party has an enforceable right or interest or is the real party in interest.").
NRCP 17(b) provides that "[t]he capacity of an individual, including one acting in a representative capacity, to sue or be sued shall be determined by the law of this State... ." (emphasis supplied). As the district court correctly noted in its order granting summary judgment, the Nevada Revised Statutes contain no statutory provision permitting suit by a foreign executor, and, in the absence of statutory law, the common law controls. See NRS 1.030. Under the common law,
Vaughan v. Northup, 40 U.S. (15 Pet.) 1, 6, 10 L.Ed. 639 (1841). See also Matter of the Estate of Widmeyer, 741 S.W.2d 758, 760 (Mo. App. 1987) ("an administrator, appointed in state A, cannot sue in his representative capacity in state B in the absence of a statute in state B authorizing him to do so...."). Thus Shaw, and a fortiori Woodley, lacked legal capacity to bring suit in this state on behalf of Lynn's Estate.
Shaw also argues that if the defect is one of capacity, then it may be waived. Again, we agree. NRCP 9(a), in pertinent part, provides:
In Kucharski v. Pope & Talbot, 4 F.R.D. 208 (S.D.N.Y. 1944), a fact situation similar to the instant matter was presented. There, a foreign administratrix, appointed in Pennsylvania, brought suit in New York. The defendant answered denying knowledge or information sufficient to form a belief concerning the plaintiff's allegation that she was the administratrix of the decedent's estate. Subsequently, the defendant moved for summary judgment on the ground that the plaintiff lacked capacity to sue in New York. In denying the motion, the district court stated: "Such a denial of knowledge or information did not satisfy
Here, the complaint affirmatively alleged Woodley to be the executor of the Lynn Estate. Approximately five months after the complaint was filed, and after making a demand and motion for a change of venue and a motion for a more definite statement, Stutchman and FCC answered. In their answer, Stutchman and FCC stated: "Defendants are without knowledge or information sufficient to form a belief as to the truth of the [allegation that Woodley is the executor of the Lynn Estate], and therefore, upon such lack of knowledge or information, deny the same." (emphasis supplied). Not until September 11, 1987, almost two years after the complaint was filed, did Stutchman and FCC in their motion for summary judgment raise the issue of Woodley/Shaw's "standing."
We believe that the authorities cited above are correct in suggesting that respondents' denial of Woodley's authority to sue was insufficient to raise the issue of Woodley's representative capacity. Respondents, with a minimum of effort, could have determined the identity of the executor of Lynn's Estate and whether that person had qualified to act as executor in Nevada. Having failed to raise the issue of capacity by "specific negative averment," as required by NRCP 9(a), Stutchman and FCC waived their objection. See Tobler & Oliver Constr. v. Nevada St. Bank, 89 Nev. 269, 510 P.2d 1364 (1973);
We conclude that the district court erred in granting summary judgment in favor of Stutchman and FCC. Although a foreign representative's commencement of suit in this state without authorization is defective, the defect is one of capacity. As such, if the opposing party does not raise the issue of capacity in the manner provided in NRCP 9(a), the objection is waived.
Accordingly, we reverse the district court's order granting Stutchman and FCC summary judgment, and remand the case to that court for further proceedings.