City of Stigler v. Crumley

• Decision Date: 28 May 2004
• Docket Number: No. 99,220.,99,220.
• Citation: 2004 OK CIV APP 80,99 P.3d 253
• Parties: The CITY OF STIGLER, Oklahoma, a Municipal Corporation, Plaintiff/Appellee, v. Latresia CRUMLEY, Personal Representative of the Estate of David M. Hanke, Deceased, Defendant/Appellee, and John Hanke, Heir of the Estate of David M. Hanke, Deceased, Intervenor/Appellant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

99 P.3d 253

2004 OK CIV APP 80

The CITY OF STIGLER, Oklahoma, a Municipal Corporation, Plaintiff/Appellee, v. Latresia CRUMLEY, Personal Representative of the Estate of David M. Hanke, Deceased, Defendant/Appellee, and John Hanke, Heir of the Estate of David M. Hanke, Deceased, Intervenor/Appellant.

No. 99,220.

Court of Civil Appeals of Oklahoma, Division No. 3.

May 28, 2004.

Certiorari Denied September 27, 2004.

James W. Smith, Stigler, OK, for Plaintiff/Appellee, City of Stigler, Oklahoma.

Shannon Lee Denney, Stigler, OK, for Defendant/Appellee, Latresia Crumley.

Jeffrey M. Bonds, Bonds & Matthews Law Firm, P.L.L.C., Muskogee, OK, for Intervenor/Appellant.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.

Opinion by BAY MITCHELL, Presiding Judge.

¶ 1 David M. Hanke (decedent) died intestate on April 4, 2002 in Oklahoma County, Oklahoma. He was the record owner of certain real property in the City of Stigler, Oklahoma, in Haskell County. On June 6, 2002, Defendant/Appellee Latresia Crumley (Crumley), one of decedent's daughters, filed a "Petition for Letters of Administration, Appointment of Personal Representative and Determination of Heirs" in Haskell County District Court. On September 4, 2002, the trial court issued an order appointing Crumley personal representative of decedent's estate, and determining decedent's heirs to be his five children: Crumley, Cheryl Ann Molz, David E. Hanke, Jerry Hanke, and Intervenor/ Appellant John Hanke (Hanke).

¶ 2 On October 16, 2002, Plaintiff/Appellee the City of Stigler, desiring to use the eighty acres decedent owned in Haskell County to expand the size of its airport, filed a petition for condemnation with the trial court. The City sent notice of the condemnation to Crumley as personal representative of decedent's estate and to her lawyer, Shannon Lee Denney. It did not send notice to any of decedent's four other children. On December 10, 2002, the trial court entered an order confirming the condemnation of the real property and issuing a writ of assistance.

¶ 3 Hanke filed an "Application to Intervene as Mandatory Party and Motion to Set Aside and Vacate Condemnation and Brief in Support" on January 16, 2003. In it, Hanke argued the City's failure to notify the four heirs other than Crumley of the condemnation proceeding resulted in a denial of their due process rights. He further insisted the condemnation proceeding was void due to fraud or irregularity because Crumley's attorney and the attorney for the City of Stigler share the same business address. After a hearing on April 2, 2003, the trial court denied Hanke's application to intervene, overruled his motion to set aside and vacate the condemnation, and denied his oral motion to stay the writ of assistance during appeal. The trial court filed an order memorializing its decisions on April 9, 2003. Hanke appeals from that order. We affirm.

¶ 4 Title 11 O.S.2001 § 22-104 of the Oklahoma Statutes grants every municipality the right to "acquire, own, and maintain, within or without its corporate limits, real estate for sites and rights-of-way for any municipal purpose including ... airports" and to "exercise the right of eminent domain for any municipal purpose...." 11 O.S.2001 § 22-104(2) and (3). In its acquisition of property through eminent domain, "the municipality shall proceed in the manner now provided by law for the exercise of the right of eminent domain by railroad corporations in this state." 3 O.S.2001 § 65.3.

¶ 5 Upon application of a railroad corporation to exercise eminent domain over real property in Oklahoma, a district judge must appoint a three-member commission to assess just compensation. 66 O.S.2001 § 53(A). The railroad then must give notice of the proposed taking to the condemnee "by personal service or by leaving a copy of the notice at the condemnee's place of residence with some member of his family over fifteen (15) years of age...." 66 O.S.2001 § 53(B). Notice by publication is appropriate only where (1) the condemnee resides out of state or has left the state with intent to avoid service of notice; (2) the condemnor and his attorney "upon diligent inquiry" are unable to ascertain the condemnee's whereabouts; or (3) the condemnee is an "unknown heir, successor, or assign" of one who possessed title to the property. Id. Within ten days after the commissioners file their report, "the court clerk shall forward to the attorney of record for the condemnor, the attorney of record for each condemnee, and to all unrepresented condemnees, a copy of the commissioners' report and a notice stating the time limits for filing an exception or demand for jury trial...." 66 O.S.2001 § 55(B).

¶ 6 Crumley, as personal representative of the decedent's estate, has the exclusive right to possess and manage the real property in the estate until final settlement or distribution.¹ 58 O.S. § 251; see Cook v. Craft, 1952 OK 289, 248 P.2d 236

; In re Gentry's Estate, 1932 OK 539, 13 P.2d 156. In addition, it is the personal representative who may sue and be sued on behalf of the estate:

Actions for the recovery of any property, real or personal, or for the possession thereof, and all actions founded upon contracts, may be maintained by and against executors and administrators in all cases and in the same courts in which the same might have been maintained by or against their respective testators and intestates.

58 O.S.2001 § 252; see Jameson v. Goodwin, 1914 OK 296, 141 P. 767. Thus, in the City's condemnation proceeding against decedent's estate, Crumley stood in the position of condemnee, just as the decedent would have were he still living. Accordingly, it was to Crumley that the City owed notice of the proceedings, and it was to Crumley the City gave notice.

¶ 7 The fact that the probate division of the district court previously had designated the heirs of decedent's estate does not change this result. When Crumley filed her petition seeking appointment as personal representative of decedent's intestate estate, she also requested the trial court determine the identity of all heirs to the estate, as she is entitled to do under 58 O.S.2001 § 240. The probate division undertakes such preliminary determinations of the identities of heirs for purposes set forth in 58 O.S.2001 § 239, namely, so that the personal representative has the opportunity to notify all heirs and receive their written consent or waiver if and when she petitions the trial court for orders...