Estate of Pope, Matter of

• Decision Date: 27 November 1990
• Docket Number: No. 72180,72180
• Citation: 808 P.2d 640
• Parties: In the Matter of the ESTATE OF H. Everett POPE, Jr., Deceased. TULSA PROFESSIONAL COLLECTION SERVICES, INC., Appellant, v. Joanne POPE, Executrix of the Estate of H. Everett Pope, Jr., Appellee.
• Court: Oklahoma Supreme Court

Page 640

808 P.2d 640

1990 OK 125

In the Matter of the ESTATE OF H. Everett POPE, Jr., Deceased.

TULSA PROFESSIONAL COLLECTION SERVICES, INC., Appellant, v. Joanne POPE, Executrix of the Estate of H. Everett Pope, Jr., Appellee.

No. 72180.

Supreme Court of Oklahoma.

Nov. 27, 1990.

Rehearing Denied March 25, 1991.

On Appeal from the District Court, Tulsa County; David E. Winslow, Judge.

In an earlier appeal for review of a probate decision in the same case this court affirmed a trial judge's order that denied a hospital's application to direct the estate representative's payment of decedent's last illness expenses without a timely statutory creditor's claim. The U.S. Supreme Court vacated this court's decision on certiorari and remanded the cause--in Tulsa Professional Collection Services v. Pope ¹--for a factual probe into the publication service's sufficiency as notice--conformable to the minimum standards of due process--of the statutory time after which claims against the estate would be barred. Pursuant to these directions, we ordered the district court to carry out the federal court's mandate. After implicitly holding the publication notice to the hospital was constitutionally sufficient and its quest for payment untimely, the district court denied relief.

THE TRIAL COURT'S ORDER IN PROBATE IS REVERSED AND THE CAUSE REMANDED FOR FURTHER PROCEEDINGS WITH DIRECTIONS.

Randall E. Rose, Naylor & Williams, Inc., Tulsa, for appellant.

Phillip K. Smith, Smith and Smith, Tulsa, for appellee.

OPALA, Vice Chief Justice.

Two issues are tendered for our decision in this second appeal from denial of a hospital's quest that payment be ordered for the decedent's last illness expenses without a timely statutory creditor's claim: ² Does Oklahoma law charge the estate representative with knowledge that the hospital where the decedent died as a paying patient was a potential creditor of the estate? and if so Did the hospital effectively relinquish that which was its constitutional due--actual notice under Oklahoma's nonclaim statute? We answer the first question in the affirmative and the second in the negative.

THE ANATOMY OF LITIGATION

The trial court denied the hospital's application for payment of decedent's last illness expenses, which was pressed without an antecedent and timely statutory creditor's claim. ³ We affirmed its order on appeal. ⁴ The U.S. Supreme Court vacated this court's decision on certiorari and remanded

the cause ⁵ for a factual inquiry into the publication service's sufficiency as notice to the hospital--conformable to the minimum standards of due process--of the time after which the hospital's claim against the estate would be barred. We ordered the district court to carry out the federal court's mandate, ⁶ and that court denied the relief sought, implicitly holding service by publication was constitutionally sufficient, and the hospital's quest for payment untimely. The hospital once again appeals.

I THE MINIMUM STANDARDS OF NOTICE UNDER THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT

No state may deprive a person of property without due process, commands the Fourteenth Amendment. ⁷ Since the landmark case of Mullane v. Central Hanover Bank & Trust Co., ⁸ the U.S. Supreme Court has required that notice meeting minimum constitutional standards precede judicial action which affects a protected property interest. Notice must be reasonably calculated to inform interested parties of the pending action and of every critical stage so as to afford them an opportunity to defend ⁹ or to meet the issues at a meaningful time and in a meaningful manner. ¹⁰

Under Mullane and its progeny, one who seeks to alter another's legal rights must give actual notice to the latter before a court can act upon the claim. In Mullane's aftermath the Court held that publication notice is insufficient to inform a known creditor that the latter's claim would be barred in bankruptcy unless filed within a statutory period. ¹¹ The Court next elaborated on its Mullane mandate in Walker v. City of Hutchinson, ¹² where it held that The Court's teaching in Pope ¹⁸ directly applies Mullane to probate proceedings. ¹⁹

                actual notice must be given in state proceedings which "directly and adversely affect" a protected property interest.  Notice of condemnation proceedings published in a local newspaper was pronounced insufficient vis-a-vis the landowner whose name and address the city knew, or should have learned, from the official county records.  The Court further amplified this message in Schroeder v. City of New York. 13  There it concluded that posted and published notice of condemnation proceedings is inadequate to afford the landowners an opportunity to defend against the loss of their rights in land.  Actual notice, the Court opined, is due all "known or very easily ascertainable" parties.  In Greene v. Lindsey 14 the Court condemned the posting of a summons on a tenant's apartment door as constitutionally substandard notice of forcible entry and detainer--when an "inexpensive and efficient mechanism such as mail service is available."   In Mennonite Board of Missions v. Adams 15 the Court continued refining Mullane.   There, mortgagees received notice of a tax sale by publication alone.  The Court held that "a mortgagee's knowledge of delinquency in the payment of taxes is not equivalent to notice that a tax sale is pending.  " 16  (Emphasis added.)   The state's failure to provide the mortgagee with actual notice of the tax sale violates due process, because "reasonably diligent efforts" could have identified the mortgagee and ascertained its address. 17
                Its pronouncement places on the estate representative an affirmative duty to make "reasonably diligent efforts" to uncover the identity of estate creditors and to ascertain their whereabouts for actual notice which would inform them of the time to file claims against the estate. 20
                

MULLANE'S IMPACT ON OKLAHOMA'S NOTICE SCHEME

Some thirty years after Mullane, Oklahoma litigants were still required to protect their interest by monitoring court dockets during critical litigation stages. If an appealable decision was rendered in absentia and without notice to the defeated litigant, the unsuccessful party was nonetheless bound by its terms if he failed to learn of them in time to bring an appeal within the statutorily prescribed time. Implementing the standards and spirit of Mullane as well as of its progeny, this court expressly condemned in McCullough v. Safeway ²¹ "as clearly in discord with the notions of due process, state and federal" the then obtaining notion of duty to monitor the court's docket for appealable events that might occur in absentia when the case was under advisement and not regularly set on the docket for pronouncement of the court's decision.

Under an earlier version of railroad ²² and highway condemnation statutes, ²³ the time for filing an exception or demand for trial by jury ran 60 days from the date the clerk would file the commissioner's report of valuation. In those cases the landowner similarly had the duty to monitor the docket for the appearance of the critical report and then count 60 days for computing the terminal day. The due process notions counseled by the dissenting opinion in State ex rel. Department of Highways v. Brown ²⁴ finally led to legislative amendments of the pertinent condemnation statutes. The enactments now provide that in eminent domain cases actual notice of the filing of the commissioner's report must be given. The legislature itself relieved the condemnee-landowner of the once-borne duty to monitor a court docket. It placed the onus of notice giving on the party who Our pre-Pope practice similarly required a decedent's creditor to monitor the court's docket for the earliest paper trail of instituted probate proceedings. Absent from our statutory and case law was the very notion that the estate representative must use diligence to ascertain the potential creditors' identity as well as their whereabouts for compliance with the minimum standards of due process. Post-Pope legislation has now cast on the estate representative an affirmative duty to protect "reasonably ascertainable creditors" by giving them actual notice of the time after which claims against the estate would be barred. ²⁶

seeks adversely to affect the condemnee's title to property. ²⁵

II STATE-LAW STANDARDS FOR ASSESSING THE QUANTUM OF

DILIGENCE THE ESTATE REPRESENTATIVE MUST USE TO

IDENTIFY POTENTIAL CREDITORS

On the scanty record before it, the U.S. Supreme Court declined in Pope to determine initially whether the estate representative was less than diligent in failing to identify the hospital as a potential creditor. The cause was remanded for a factual probe. ²⁷ Pope neither guided nor attempted to preempt state law by imposing articulated federal norms for measuring the quantum of diligence required of an estate representative to identify persons or entities with likely creditor status vis-a-vis a decedent's estate so that these persons may be afforded the quality of notice that is their constitutional due. ²⁸ Once a person has been so identified, federal law determines the process of diligence in ascertaining the affected entity's last whereabouts for notice of the pendency of proceedings to be given at a meaningful time and in a meaningful manner. ²⁹ We hence fashion today state-law standards to govern the degree of diligence an estate representative must use when making "reasonably diligent efforts ... to uncover the identities of [potential] creditors." ³⁰

The estate representative must use due Under state-law standards an estate representative who knows of a decedent's last-illness hospital stay as a paying patient is put on notice by the provisions of 25 O.S.1981 §§ 11-13 that the health care provider is likely to stand, vis-a-vis the decedent's estate, in the status of a creditor. It is then the estate representative's state-law...