Estate of Veselich v. Northwestern Nat. Cas. Co.
| Decision Date | 15 November 1988 |
| Docket Number | No. WD,WD |
| Citation | 760 S.W.2d 564 |
| Parties | In the ESTATE OF J.D. VESELICH, Deceased, Carol Veselich, As Surviving Spouse, and As Personal Representative, Appellants, v. NORTHWESTERN NATIONAL CASUALTY CO., et al., Respondents. 40380. |
| Court | Missouri Court of Appeals |
John E. Edwards, III, Kansas City, for appellants.
Mary L. Barrier, Kansas City, for Northwestern, for respondents.
Daniel P. Wheeler, Kansas City, Timothy H. Bosler, Liberty, for claimants.
Before FENNER, P.J., and GAITAN and MANFORD, JJ.
Carol Veselich is the widow of James D. Veselich who died on August 24, 1986. On September 3, 1986, Letters Testamentary were issued appointing Carol Veselich as Personal Representative in the Estate of J.D. Veselich, deceased (hereinafter the Estate).
Prior to his death, J.D. Veselich (hereinafter the decedent) was a practicing Missouri attorney. Numerous claims were filed against the Estate which included thirty-seven lawsuits seeking damages for alleged legal malpractice on the part of the decedent (hereinafter malpractice claimants). The pending malpractice claims prayed for total recovery in excess of thirty-eight million dollars. Prior to his death, the decedent had been issued professional liability insurance policies by The Bar Plan, whose underwriter is Northwestern National Casualty Company, (hereinafter Northwestern). The Estate tendered the defense of all thirty-seven malpractice suits to Northwestern and Northwestern undertook defending each of those suits under reservations of rights.
On July 2, 1987, Northwestern filed a declaratory judgment action, Northwestern National Casualty Company v. Carol Veselich, Executrix of the Estate of James D. Veselich, Deceased, Case No. 87-0673-CV-W8, in the United States District Court for the Western District of Missouri, hereinafter the Federal litigation. The Federal litigation seeks a declaration that the malpractice policies issued to J.D. Veselich were void ab initio on the basis of alleged misrepresentations made by the decedent in his applications for the policies. The malpractice claimants were allowed to intervene in Federal Court and the Federal litigation is still pending.
On January 12, 1988, Carol Veselich, as Personal Representative of the James D. Veselich Estate, hereinafter Carol Veselich, P.R., filed a motion in the Circuit Court of Platte County, Probate Division, seeking permission to cease her defense of the Federal litigation on the grounds that continuing to defend said action was not in the best interest of the Estate. An informal hearing was held on the motion before the Honorable Floyd R. Baber on January 21, 1988. On the same date, Judge Baber entered the following order:
... It is Ordered that:
"Personal Representative file settlement, proposed Schedule for Payment of Claims, proposed Order of Distribution or Order Approving Settlement and Closing Estate Assets Exhausted."
On February 22, 1988, Carol Veselich, P.R., filed a settlement reflecting the condition of the Estate as of January 31, 1988. The settlement showed assets valued at $181,649.43 and numerous assets with unknown or undetermined value. The assets with unknown or undetermined value were as follows:
PROPERTY VALUE
100 shares common stock of D.R.I.L.L. & OPERATORS, INC., an
Oklahoma corporation, represented by Certificate No. 4 Unknown
20,000 shares of Totem Industries, Ltd., represented by Certificate No
05049 Unknown
Interest in LVA Partnership, a/k/a LAV Partnership, a Missouri
general partnership Undetermined
5.658% limited partnership interest in Montebello Partners, Ltd., a
Missouri limited partnership, represented by Certificate No. 1 Unknown
50% interest as a general partner in Midtown Real Estate Partnership Unknown
2.8286% limited partnership interest in Arkoma Associates Unknown
4% limited partnership interest in Kansas City Real Estate Partnership #
2 Unknown
8% limited partnership interest in Casa Serena Properties, Ltd. Unknown
1.428% limited partnership interest in Diversified Properties 101 Unknown
2.03% interest as a general partner in Kansas City Real Estate Partnership #1
Unknown
Right to receive 3,250 shares of HICOR Mineral Exploration Series I
These shares are to be issued to the Estate because of Mr. Veselich's
investment in Highlands Management Company, which partnership was dissolved in
1985, prior to Mr. Veselich's death. It is uncertain when the shares will be
issued and the present value is undeterminable. Unknown
The settlement filed February 22, 1988, also reflected that as of January 31, 1988, costs had been incurred in the amount of $372, the expenses of administration totaled $56,302.66, a family allowance was allowed to Carol Veselich, as surviving spouse, in the amount of $100,000., claims for funeral expenses totaled $7,011.89 and claims for debts and taxes due the United States totaled $121,668.18. This was a total for the claims, costs of administration and family allowance of $285,354.73, exclusive of the 37 legal malpractice claims.
On February 26, 1988, a hearing was held in the Probate Division of the Circuit Court of Platte County, on the motion of Carol Veselich, P.R., requesting authority to cease her defense of the Federal litigation. Northwestern National Casualty appeared in opposition to the motion asserting that it was entitled to bring a declaratory judgment action against the Personal Representative of the Estate in order to determine its rights and obligations under the Policies, and that the determination of the validity of the Policies with all of the ramifications arising therefrom, was a proper matter for inclusion in the administration of the Estate. Northwestern maintained that if it was not allowed to proceed against the Estate it would not be able to have its rights determined without a multiplicity of lawsuits. Northwestern also objected to the Estate being closed and the Personal Representative being discharged if such was contemplated by the court's order of January 21, 1988. Several of the malpractice claimants also appeared in opposition to the motion. The motion was denied and Carol Veselich, P.R., was directed to continue to defend the Federal litigation until such time as she might be relieved of that duty by the Federal Court. Carol Veselich appeals the denial of the motion in her capacity of Personal Representative and in her capacity as surviving spouse. Northwestern National Casualty Company is a Respondent herein as are a number of the malpractice claimants.
The respondents herein argue that the order denying the motion of Carol Veselich, P.R., to abandon the Federal litigation was not a final and appealable order and therefore the court on appeal lacks subject matter jurisdiction. Orders of the Probate Division from which an appeal may be taken are statutorily enumerated in Section 472.160.1 RSMo, 1986, which states, in part:
Any interested person aggrieved thereby may appeal to the appropriate appellate court from the order ... of the probate division of the circuit court in any of the following cases:
(1) On the allowance of any claim against an estate exceeding one hundred dollars;
(2) On all settlements of the personal representative;
(3) On all apportionments among creditors, legatees or distributees;
(4) On all orders directing the payment of legacies, making distribution or making allowances to the surviving spouse or unmarried children;
(5) On all orders for the sale of assets of the probate estate;
(6) On all orders for the sale of real estate;
(7) On judgments for waste;
(8) On proceedings to recover balances escheated to the state;
(9) On all orders revoking letters testamentary or of administration;
(10) On orders making allowances for the expenses of administration;
(11) On orders for the specific execution of contracts;
(12) On orders compelling legatees and distributees to refund;
(13) On all orders denying any of the foregoing requested actions;
(14) In all other cases where there is a final order or judgment of the probate division of the circuit court under this code except orders admitting to or rejecting wills from probate.
This appeal does not fall within any of the first thirteen subsections, but it is a final order pursuant to subsection (14).
For a judgment to be final it must dispose of all parties and all issues. Leve v. Delph, 684 S.W.2d 952 (Mo.App.1985). An interlocutory order, on the other hand, is one which reserves and leaves some further question or direction for further determination and thus is not final for purposes of appeal. State, ex rel. Great American Insurance Co. v. Jones, 396 S.W.2d 601, 603 (Mo. banc 1965). Section 472.160.1(14) contemplates that as to any specific probate proceeding where the rights of all parties and all issues are fully adjudicated and disposed of, an order is appealable. Smith v. Snodgrass, 747 S.W.2d 743, 744 (Mo.App.1988).
The order of the judge herein denied the motion of the Personal Representative and directed that she was to continue to defend on behalf of the Estate in the Federal litigation. The rights of all interested parties were fully adjudicated and all issues addressed in the motion were disposed of. The order left nothing for further direction or determination. Therefore, the Respondent's argument that there is no subject matter jurisdiction because there was not a final and appealable order fails.
Appellant's first point on appeal is that the court erred as a matter of law in denying the Personal Representative's motion to cease defending the Federal litigation because the Estate was insolvent and it...
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