Heidbreder v. Tambke

• Decision Date: 28 April 2009
• Docket Number: No. WD 69378.,WD 69378.
• Citation: 284 S.W.3d 740
• Parties: James D. HEIDBREDER, Janet Otke, R.W. Heidbreder, Thomas R. Branstetter and Kathryn J. Branstetter, Appellants, v. James R. TAMBKE d/b/a Tambke Auto Sales, Respondent.
• Court: Missouri Court of Appeals

284 S.W.3d 740

James D. HEIDBREDER, Janet Otke, R.W. Heidbreder, Thomas R. Branstetter and Kathryn J. Branstetter, Appellants, v. James R. TAMBKE d/b/a Tambke Auto Sales, Respondent.

No. WD 69378.

Missouri Court of Appeals, Western District.

April 28, 2009.

Ashley Webb, Kansas City, MO, for appellant.

Daniel R. Green, Jefferson City, MO, for respondent.

Before JOSEPH P. DANDURAND,¹ P.J., HAROLD L. LOWENSTEIN, and JAMES M. SMART, JR., JJ.

JAMES M. SMART, JR., Judge.

The heirs of Donald Heidbreder appeal the judgment dismissing their action against James Tambke for repayment of a loan. They argue that dismissal was improper because they have standing to bring the action and that the action is not barred by the statute of limitations. The judgment is reversed, and the case is remanded.

Facts

In 1997, Donald Heidbreder loaned his friend James Tambke $8,000. Heidbreder died later that year. No estate was opened within one year of his death, and no will was offered for probate during that period.

Heidbreder's heirs allege that after Heidbreder's death, Tambke made two partial payments to Heidbreder's heirs after the first year. They allege that a $1,100 payment was made in 2002 and that a $1,000 payment was made in 2004. They asserted that after the second payment, a balance of $5,900 remained.

In 2007, the appellants applied to the probate division of the Cole County Circuit Court for a judicial determination pursuant to section 473.663 that the appellants are Heidbreder's sole heirs at law and that they are therefore the owners of the balance receivable for the $8,000 loan to Tambke. The probate division granted their petition and determined the extent of their respective interests in the loan receivable. Pursuant to the determination of heirship, Heidbreder's heirs demanded payment of the balance of the debt from Tambke.

After Tambke did not pay the balance, Heidbreder's heirs filed a petition seeking a judgment against Tambke for the unpaid $5,900. They alleged that Tambke owed them the money pursuant to the determination of heirship.

Tambke filed a motion to dismiss on the basis that Heidbreder's heirs do not have standing to bring the action because only a personal representative of Heidbreder's estate would have authority to do so. Tambke also asserted that the action to collect the loan receivable is barred by the statute of limitations. The trial court issued a judgment sustaining the motion to dismiss. The judgment did not state the reason for dismissal.

Heidbreder's heirs appeal.

Standard of Review

Review of a motion to dismiss "is a de novo examination of whether the petition invokes principles of substantive law." Rychnovsky v. Cole, 119 S.W.3d 204, 208 (Mo.App.2003). Because the trial court did not state the grounds for dismissal, this court presumes that the decision was based one of the grounds alleged in the motion to dismiss. Id. The dismissal will be affirmed if it was proper as a matter of law based on any ground alleged in the motion to dismiss. Id. Here, dismissal was asked on two grounds. One ground related to standing and one related to the statute of limitations.

Standing

Heidbreder's heirs argue that dismissal was improper to the extent that it was based on lack of standing. They assert that they have the legally recognized right to pursue collection of amounts due under the oral loan agreement because they were judicially determined to be the heirs and entitled to recover the amount due on the loan. The heirs acknowledge that they were not a party to the contract and that they were not third party beneficiaries of any agreement to repay the loan. They base their claim of right to pursue this action on the judicial determination of heirship obtained pursuant to 473.663.

Section 473.663, which was added to the Missouri Probate Code in 1955, was taken from the "Model Probate Code." Borron, Missouri Probate Law and Practice, 5A MISSOURI PRACTICE SERIES, section 621, at 268 (third ed.); Welch, "New Probate Code," 11 J. Mo. Bar 145, 169 (1955). Section 473.663 provides that an action for determination of the heirs of a decedent who has died leaving property, and the extent of their interest therein, may be brought by any person having an interest in the property if no administration was commenced on the decedent's estate within a year of death and if no will was presented for probate within that period.²

Currently, no letters of administration may be issued more than one year from the date of death. Section 473.050.6. Nor may any will be admitted to probate after one year from the date of death. Section 473.050.3(2). However, any heirs asserting inheritance of property from the decedent may apply at any time after that first year for the formal recognition of ownership of the property pursuant to 473.663. Section 473.663 states in particular that if a decedent "died leaving property or any interest in property in this state" and no administration has been had, "then any person claiming an interest in such property as heir or through an heir may file a petition in the probate division." After procedural steps have been followed, "the court shall make a decree determining the person or persons entitled to the property with respect to which a determination is sought, and their respective interest in the property as heirs or successors in interest to such heirs."

The statute refers to "the property" without any distinction as to types of property. Heidbreder's heirs argue that even before they obtained the decree of heirship, they were the rightful owners of the decedent's cause of action; they simply lacked formal legal recognition such that they could bring an action in court. With the decree under 473.663, they assert that they are properly armed with everything needed to pursue the claim.

Tambke, in response, argues that only a personal representative can bring an action to recover a claim of a decedent's estate. Id. Tambke cites section 473.270, which states:

Executors and administrators shall collect all money and debts of every kind due to the decedent, and give receipts and discharges therefor, and shall commence and prosecute all actions which may be maintained and are necessary in the course of his administration, and defend all actions brought against him.

(Emphasis added.)

Tambke asserts that this statute should be understood as granting exclusive authority to a personal representative to bring a claim on behalf of a deceased person. Therefore, according to Tambke, once the one-year deadline for opening an estate has passed, any effort to recover by litigation the balance of the debt is effectively barred. Under Tambke's argument, the practical effect of the one-year administration deadline is a de facto one-year limitations period after the death of the deceased. Tambke argues that 473.663 does not authorize suits by heirs to collect any debts owed to a decedent.

While section 473.270 clearly gives authority and responsibility to the personal representative (and not to the heirs) to bring all actions, the language granting the authority to the personal representative to bring "all actions" is modified by the phrase "necessary in the course of his administration." The context of 473.270 is clearly limited to estate administration, whereas 473.663 addresses a scenario in which there is no estate administration. We cannot say, therefore, that section 473.270 purports to govern the matter of whether, when there is no administration of an estate, heirs may bring an action as to any right or property formerly possessed by the decedent. Accordingly, we are doubtful that 473.270 purports to rule the issue before us.

The determination of heirship statute, section 473.663, appears on its face to allow the formal recognition and declaration of the devolution of any "property" from the deceased to those entitled to succeed to the deceased's property. Tambke must, therefore, explain the application of 473.663 if indeed the statute does not accomplish what Heidbreder's heirs say that it does. The interpretation of 473.663 suggested by Tambke is that its purpose is only to clarify the ownership of property that is already in the possession of the heir (or of property as to which the right of possession is not adversely contested). It is, Tambke would seem to suggest, designed merely to settle a dispute between feuding heirs, not to declare ownership of an intangible cause of action. Tambke, however, lacks authority directly on point that would clearly limit the intended purpose of section 473.663 in that fashion.

Tambke points out that 473.663 makes no mention of an heir being entitled to bring an action. It is true that a decree pursuant to section 473.663 vests heirs with legally cognizable ownership of proceeds they already possess, and specifies how they are to divide those among each other, but the statute does not expressly say that the order would entitle them to prosecute an action in court on the contract.

In these circumstances, we look to the statutory wording and also to the historical context and framework of the statutory scheme, including any amendments to the probate laws.

Historically, an action for recovery of a debt owed the decedent could not be brought by an heir as an heir, but could be brought only by the personal representative. See, e.g., Clubine v. Frazer, 346 Mo. 1, 139 S.W.2d 529 (1940). In 1955, as we have noted, section 473.663 was enacted. Even prior to 1955, the statutes specified that in cases of small estates where there has been a refusal of letters of administration, a surviving spouse, unmarried children or even a creditor may "sue for all the property belonging to such estate." Art. 1, section 2, Mo.Rev.Stat. Ann (West 1942; see also section 461.120 RSMo.1949); currently section 473.090.3. Thus, even apart from 473.663, the right to sue for recovery of the decedent's property has not, for many years, been limited to personal...