Deceased v. Corn (In re Fowler)

• Decision Date: 16 April 2013
• Docket Number: No. WD 75394.,WD 75394.
• Citation: Deceased v. Corn (In re Fowler), 400 S.W.3d 796 (Mo. App. 2013)
• Parties: In the Matter of Lloyd FOWLER, Jr., Deceased, Richard J. Koury, II, Appellant, v. Debra Corn, Respondent.
• Court: Missouri Court of Appeals

400 S.W.3d 796

In the Matter of Lloyd FOWLER, Jr., Deceased, Richard J. Koury, II, Appellant,

v.Debra Corn, Respondent.

No. WD 75394.

Missouri Court of Appeals, Western District.

April 16, 2013.

Richard J. Koury, II, Appellant Acting Pro Se, Independence, MO, for appellant.

L. Clay Barton, Oak Grove, MO, for respondent.

Before Division One: MARK D. PFEIFFER, P.J., and VICTOR C. HOWARD and ALOK AHUJA, JJ.

ALOK AHUJA, Judge.

Respondent Debra Corn, daughter of Lloyd Fowler, Jr., filed a small-estate affidavit in the probate division of the Circuit Court of Jackson County on February 22, 2011, following Fowler's death on January 13, 2011. On May 16, 2012, Appellant Richard Koury filed a motion to enforce a settlement agreement he contended he had reached with Corn, concerning a claim against Fowler's estate. A commissioner in the probate division dismissed Koury's claim, and his motion to enforce the purportedsettlement of the claim, finding that no procedures exist within the small-estate statutes to litigate and dispose of contested claims. The circuit court confirmed the orders of the probate division, and Koury appeals. We affirm.

Statutory and Factual Background

Missouri's probate code creates a streamlined process for the payment of claims and the distribution of assets in situations in which a decedent leaves an estate valued at no more than $40,000. See§§ 473.097–473.107. ¹ The small-estate procedures do not require that the estate be opened for full administration, if the conditions specified in § 473.097.1(1) are satisfied.

To commence a small-estate proceeding, § 473.097.2 requires that the personal representative of the estate, or any distributee of the estate in the absence of a personal representative, file an affidavit containing the following statements and information:

(1) That the decedent left no will or, if the decedent left a will, that the will was presented for probate within the limitation periods specified in section 473.050;

(2) That all unpaid debts, claims or demands against the decedent or the decedent's estate and all estate taxes due, if any, on the property transfers involved have been or will be paid, except that any liability by the affiant for the payment of unpaid claims or demands shall be limited to the value of the property received;

(3) An itemized description and valuation of property of the decedent [, excepting] ... property which was held by the decedent as a tenant by the entirety or a joint tenant at the time of the decedent's death;

(4) The names and addresses of persons having possession of the property;

(5) The names, addresses and relationship to the decedent of the persons entitled to and who will receive, the specific items of property remaining after payment of claims and debts of the decedent, included in the affidavit;

(6) The facts establishing the right to such specific items of property as prescribed by this section.

If the property is valued at more than $15,000, the clerk of the court is required to publish in a general-circulation newspaper a “notice to creditors of the decedent to file their claims in the court or be forever barred.” § 473.097(5).² The statutory notice advises creditors “that section 473.444 sets a limitation period that would bar claims one year after the death of the decedent,” and that “[a] creditor may request that this estate be opened for administration.” Id.

The statutes direct the circuit clerk to annex a certificate to the small-estate affidavit, or endorse it on the affidavit, stating: the names and addresses of the persons entitled to the decedent's property; whether a will has been probated or that no will has been presented to the court; and that any applicable estate taxes have been paid. § 473.097.2. The probate division may, in its discretion, order an appraisal of the estate's property prior to issuance of the clerk's certificate. § 473.107.

The small-estate statutes require the affiant to collect the decedent's assets, pay claims against the estate, and distribute the remaining assets to the persons specified in the affidavit. § 473.097.7. The affiant is also authorized to liquidate assets as necessary to satisfy claims or facilitate distributions. Id. Distributees can establish their right to succeed to the decedent's real property “by filing a copy of the foregoing affidavit and certificate of the clerk in the office of the recorder of deeds of each county where the real property is situated.” § 473.097.4. The statutes also provide that,

Upon compliance with the procedure required by this section, the personal property and real estate involved shall not thereafter be taken in execution for any debts or claims against the decedent, but such compliance has the same effect in establishing the right of distributees to succeed to the property as if complete administration was had; but nothing in this section affects the right of secured creditors with respect to such property.

§ 473.097.6.

The small-estate statutes contain no procedures for the litigation or resolution of disputes over claims.

In this case, Lloyd Fowler, Jr. died intestate on January 13, 2011. On February 22, 2011, Fowler's daughter Debra Corn filed a small-estate affidavit in the probate division of the circuit court of Jackson County. The affidavit included all of the elements required by § 473.097.2. The only asset noted in the affidavit was a parcel of real property located in Independence, with a reported value of $30,000. The affidavit listed two distributees, Corn and her brother Doug Fowler.

The notice to creditors required under the statute was published on March 22, 2011.

On June 8, 2011, Richard Koury filed a Claim Against Estate in the amount of $5,185.65. Koury claimed that Fowler contracted to purchase a 2004 Cadillac Escalade from Koury in February of 2010. The contract price was alleged to be $24,000. According to Koury's claim, Fowler paid Koury a $1,000 deposit, but notified Koury on May 3, 2010, that he could not perform the contract. Koury's claim alleged that he sold the vehicle to a third party for $18,000 on August 21, 2010. Koury calculated the $5,185.65 claim amount based on the difference between the contract price for the vehicle and its ultimate sale price, plus Koury's sale-related expenses of $185.65, minus the $1,000 deposit Fowler had previously paid.

On September 14, 2011, the attorney representing the estate sent a letter to Koury which read in full, “[t]he personal representative will consent to the judgment in the estate of Lloyd Fowler. If you will submit to me a proposed consent I will get it signed and filed.” The record does not reflect that Koury ever tendered any “proposed consent” to the estate's counsel.

On May 16, 2012, Koury filed a Motion to Enforce Settlement Agreement, alleging that he had been told repeatedly by the estate's attorney that the claim was settled, and that counsel's September 24, 2011 letter confirmed the existence of a settlement agreement. In response, the estate's counsel filed a trial brief which argued that this Court's decision in Missouri Department of Social Services v. Brundage, 85 S.W.3d 43 (Mo.App. W.D.2002), was dispositive of the court's authority to resolve Koury's Motion. Counsel also submitted an affidavit which stated that he had discussed Koury's claim with Doug Fowler, the decedent's son and the brother of the affiant Debra Corn (but presumably had not discussed the claim with Corn herself). The affidavit states that “[t]he letter written to Richard J. Koury II on September 14, 2011[, which indicated Corn's willingness to consent to Koury's claim,] is not accurate.”

On June 6, 2012, a commissioner in the probate division dismissed Koury's June 8, 2011 claim. The commissioner noted that Koury had never petitioned the probate division to open Fowler's estate for full administration; relying on Brundage, the commissioner concluded that Koury's claim was therefore barred because “[t]here is no procedure in a small estate proceeding for the Court to allow or deny contested claims.” The commissioner dismissed Koury's Motion to Enforce Settlement Agreement on the same day for similar reasons.

On July 9, 2012, the circuit court confirmed the commissioner's orders. Koury appeals.³

Analysis

Koury's appeal of the probate division's dismissal of his claim presents solely legal issues which we review de novo. See, e.g., Doe ex rel. Subia v. Kansas City, Mo. Sch. Dist., 372 S.W.3d 43, 47 (Mo.App. W.D.2012).

Koury first argues that the small-estate statutes authorize the filing of claims against a small estate. We agree: the small-estate statutes make multiple references to the filing and payment of “claims” against an estate, and § 473.097.5 expressly requires notice to creditors advising them “to file their claims in the court or be forever barred.”

The critical issue here is not whether claims may be filed against the estate, however. Instead, the issue is whether disputes over claims can be resolved in the context of the small-estate proceeding itself. On this issue, our prior decision in Brundage is dispositive.

In Brundage, a small-estate affidavit was filed with respect to the estate of Vincent Brundage, who died in February, 1998. 85 S.W.3d at 44. The Missouri Division of Medical Services (“DMS”) filed a claim for Medicaid assistance paid to the decedent on September 17, 1998. Id. at 45. DMS and Brundage's estate exchanged correspondence over the next several months in an effort to reach a settlement of DMS's claim. Id. Our opinion notes that

[t]here appears to be no serious dispute regarding the validity of DMS' claim or of the amount of DMS' claim. The stumbling block in resolving the claim was the distributees' request that DMS execute a quitclaim deed releasing any interest it had to the real property in the estate. Because the amounts offered by distributees ... would not completely satisfy DMS' claim, the distributees contended that a quitclaim deed was...