Hayes v. Cardwell
| Decision Date | 11 December 1978 |
| Docket Number | No. 10567,10567 |
| Citation | 575 S.W.2d 816 |
| Parties | Rose Beryl HAYES, Respondent, v. James H. CARDWELL, Administrator of the Estate of James O. Cardwell, Appellant. |
| Court | Missouri Court of Appeals |
McCormick V. Wilson, Jefferson City, for appellant.
Michael P. Riley, Carson, Monaco, Coil & Riley, P.C., Jefferson City, for respondent.
Before FLANIGAN, P. J., STONE and TITUS, JJ., and MOORE, KENNEDY and CAMPBELL, Special Judges.
This action originated in the Probate Court of Camden County, Missouri, where plaintiff-claimant Rose Beryl Hayes filed a claim against the estate of James O. Cardwell, deceased. Defendant is the administrator of the estate. The claim contained five "items." Items I, II, and III were adjudicated by the probate court, after a hearing attended by the parties and their attorneys. Neither side attacked that adjudication and those items are not involved in this appeal. Items IV and V are alternative statements of a claim for services rendered decedent by plaintiff. At a subsequent hearing on that claim the probate court entered its order disallowing it. Plaintiff appealed to the circuit court where the cause was tried to a jury and a verdict in the amount of $20,000 was awarded plaintiff. Defendant appeals from the judgment based on the verdict.
Defendant's first "point relied on" is that the circuit court erred in denying defendant's motion to dismiss, the motion being based on the "failure of the plaintiff to comply with provisions of § 473.400 V.A.M.S." 1
The pertinent portion of § 473.400 reads: "Unless expressly waived in writing by the executor or administrator, a copy of each claim filed against the estate of any decedent on which is endorsed the date of filing, together with a notice stating the time within which offsets or counterclaims may be filed under section 473.410 and also stating the time for hearing as fixed by court rule or by the court, shall be promptly served on the executor or administrator in the manner provided by subdivision (1) of subsection 2 of section 472.100 RSMo, or by ordinary mail, and proof of service in the manner provided by section 472.110 RSMo shall be filed in the court prior to the hearing and allowance thereof. . . ." (Emphasis added.)
Defendant's first point must be considered in the light of certain facts surrounding the processing of plaintiff's claim in the probate court.
On May 30, 1973, Michael P. Riley, attorney for plaintiff, mailed a letter to the clerk of the probate court at Camdenton enclosing the claim of his client and requesting that it be filed. This letter stated that a copy of the claim, and of the letter itself, had been mailed to the administrator and to the administrator's attorney, McCormick Wilson. Both Riley and Wilson had their respective law offices in Jefferson City and the administrator lived in Jefferson City.
On May 31, 1973, the claim was received by the clerk of the probate court and it was filed. On the same date the administrator and attorney Wilson received their copies of the claim and Riley's letter of May 30 to the clerk.
On June 18, 1973, attorney Wilson mailed to the clerk of the probate court a pleading of the administrator and mailed a copy to attorney Riley. The original was received by the clerk on June 19. The first page (caption omitted) of that four-page document reads, in pertinent part:
. . ." Al
The remaining three pages of the administrator's pleading responded specifically to each of the five items of the claim and then pleaded a "set-off."
Also on June 19, 1973, attorney Wilson wrote a letter to Janice P. Noland, the probate judge, and sent copies to the administrator and attorney Riley. The caption of that letter referred to "Estate of James O. Cardwell, deceased, Estate No. 1095." The letter reads:
"Dear Judge Noland:
I talked to Mike Riley after he received my responsive pleading.
We are in agreement that it would be proper to submit the first three items of Mrs. Hayes' claim to you separately from the rest. This would be her claim for the bank account and the certificates of deposit as set out in those items of the claim.
The claim for services, Item Four, and the Contract to Will, Item Five, would be heard at a later time.
In order to start on finding a suitable time we can all be available on July 10 1973, if that is an acceptable date to you. If not, please contact me and Mr. Riley and we will set it at your convenience.
On June 21, 1973, the clerk of the probate court, using a "speed letter" form provided her by attorney Wilson, wrote a letter to Wilson informing him that "We have set the hearing for July 10 at 10:00 a. m." and asking Wilson to relay the information to Riley.
On June 25, 1973, attorney Wilson wrote a letter to Riley and sent copies to Judge Noland and administrator Cardwell. That letter reads:
"Dear Mike:
I attach hereto the pink copy of a speed letter from Carol Harper, Probate Clerk, notifying me that this matter is set for hearing on July 10 at 10 A. M. and requesting me to notify you.
It is still my understanding that this will be a partial hearing on your claim dealing with Items 1, 2 and 3 and not dealing with Item 4 or Item 5.
On July 13, 1973, a hearing was held in the probate court on Items I, II, and III. Plaintiff and defendant appeared in person and by their respective attorneys. The court, after hearing the evidence, adjudicated those claims. Another evidentiary hearing was held in the probate court on May 15, 1974, and the parties and their attorneys again appeared. It was at that hearing that the instant claim was disallowed.
Defendant asserts that the requirements of § 473.400 were not met in that there was not served on the administrator a copy of the claim "on which was endorsed the date of filing, together with a notice stating the time within which offsets or counterclaims may be filed under section 473.410 and also stating the time for hearing as fixed by court rule or by the court." Defendant also argues that there was no "proof of service filed in the court prior to the hearing and allowance of the claim."
Certain factors should be pointed out before defendant's first point receives disposition. Defendant's present descriptions of the alleged non-compliance are more specific than was ground 1 of his motion to dismiss. It should also be noted that defendant's first point, as does ground 1 of his motion to dismiss, alleges that Plaintiff failed to comply with § 473.400. However, it seems clear that any non-compliance with the statute was that of the clerk and not of the plaintiff. See the form mentioned in footnote 2.
Claims in the probate court are often processed with less formality than that accorded the handling of petitions in the circuit court. Before a probate claim is filed, the identity of the personal representative is a matter of public record and so is the identity of the attorney for the estate. Attorney Riley's letter of May 30 to the clerk did not instruct the latter to refrain from literal compliance with § 473.400. The clerk knew, however, that the administrator and the attorney had been mailed copies of the claim.
The transcript does not reflect that the administrator's motion to dismiss was brought to the attention of the probate judge or that it received a ruling in that court. The motion is not mentioned in either of the orders of the probate court which adjudicated the two sets of claims. Perhaps it was the strategy of the administrator to permit the motion to lie dormant in the probate file and to refrain from obtaining a ruling on it. If the motion had been pressed, the alleged non-compliance was readily curable by meeting the literal requirements of the first sentence of § 473.400. The motion, as a weapon of frontal assault, would gain only a temporary and hollow victory. Perhaps a more telling result would be won by ambuscade.
As a practical matter each of the purposes sought to be achieved by the first sentence of § 473.400 had been met by what was done in the case at bar. The administrator and his attorney had received a complete copy of the claim. 2 Although their copies did not bear the endorsement of the date the claim was filed, 3 each of them had received a copy of attorney Riley's letter of May 30, 1973, forwarding the claim to the clerk. Letters from attorney Wilson to the clerk and to the probate judge, of which the administrator received copies, demonstrate that Wilson and the administrator knew that the claim had been filed. The administrator did include a "set-off" in his pleading and there is no contention that he was prejudiced by a failure to receive "a notice stating the time within which offsets or counterclaims may be filed under section 473.410." 4 The "time for the hearing" was the subject of correspondence in which attorney Wilson participated and the hearing date was agreed upon.
In fine, if § 473.400 had received literal compliance, the administrator and his attorney would not have received any information which they did not already possess. There is a total lack of a showing of prejudice occasioned by any technical...
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