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In re Johnson

United States Bankruptcy Appellate Panel of the Eighth Circuit.
Mar 11, 2009
402 B.R. 313 (B.A.P. 8th Cir. 2009)

Summary

holding attorney has no authority to pursue appeal on behalf of client because the attorney-client relationship terminated upon client's death

Summary of this case from Higgins v. Deep Discounts LLC

Opinion

No. 09-6005.

3-11-2009

In re Rodney Arthur JOHNSON, Debtor. Rodney Arthur Johnson, Plaintiff-Appellant, v. Gregory County Auditor, Defendant-Appellee.

Douglas R. Kettering, Yankton, SD, for appellant. Sandy Jo Steffen, Gregory, SD, for appellee.


This is an appeal of the bankruptcy court's 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. We dismiss the appeal.

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 Debtor's 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 Debtor's 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. --------------- Notes: Honorable Charles L. Nail, Jr., United States Bankruptcy Court, District of South Dakota.


Summaries of

In re Johnson

United States Bankruptcy Appellate Panel of the Eighth Circuit.
Mar 11, 2009
402 B.R. 313 (B.A.P. 8th Cir. 2009)

holding attorney has no authority to pursue appeal on behalf of client because the attorney-client relationship terminated upon client's death

Summary of this case from Higgins v. Deep Discounts LLC

finding that a party who was not the representative of debtor's probate estate lacked standing to initiate an action for violation of debtor's discharge

Summary of this case from In re Alexander
Case details for

In re Johnson

Case Details

Full title:In re Rodney Arthur JOHNSON, Debtor. Rodney Arthur Johnson…

Court:United States Bankruptcy Appellate Panel of the Eighth Circuit.

Date published: Mar 11, 2009

Citations

402 B.R. 313 (B.A.P. 8th Cir. 2009)

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