In re Estate of Forhan

• Decision Date: 08 November 2004
• Docket Number: No. 26092.,26092.
• Citation: 149 S.W.3d 537
• Parties: In the ESTATE OF Larry FORHAN, Deceased.
• Court: Missouri Court of Appeals

149 S.W.3d 537

In the ESTATE OF Larry FORHAN, Deceased.

No. 26092.

Missouri Court of Appeals, Southern District, Division Two.

November 8, 2004.

Mary Ellen Weeman, Minneapolis, MN, for appellant.

Francis J. Siebert, Scott City, MO, for respondent.

JEFFREY W. BATES, Chief Judge.

Larry Forhan ("Decedent") died testate on February 14, 2003. Decedent was domiciled in Scott County, Missouri, at the time of his death. On February 27, 2003, an Application for Letters Testamentary was filed in the Probate Division of the Scott County Circuit Court. That same day, Letters Testamentary authorizing independent administration of Decedent's estate were granted, and James Arnold was appointed personal representative of the estate.

Beginning on March 9, 2003, the clerk of the Probate Division had a notice of Arnold's appointment published in a local newspaper once a week for four consecutive weeks. This notice contained the following information for creditors of the estate:

All creditors of said decedent are notified to file claims in court within six months from the date of the first publication of this notice or if a copy of this notice was mailed to, or served upon, such creditor by the personal representative, then within two months from the date it was mailed or served, whichever is later, or be forever barred to the fullest extent permissible by law. Such six-month period and such two-month period do not extend the limitation period that would bar claims one year after the decedent's death, as provided in Section 473.444, RSMo, or any other applicable limitation periods. Nothing in Section 473.033, RSMo, shall be construed to bar any action against a decedent's liability insurance carrier through a defendant ad litem pursuant to Section 537.021, RSMo.

See § 473.033 (requiring a notice in substantially this form to be published).¹

On December 1, 2003, Sears (Citibank USA, N.A.) filed a claim against the estate. Sears' claim alleged that it was due $7,157.86 from the estate based on unsecured credit extended to Decedent via a charge account with Sears. On December 4, 2003, Arnold filed an objection to Sears' claim alleging, inter alia, that the claim was not timely filed. On December 19, 2003, Sears filed a motion requesting an extension of time to file its claim. The motion alleged that: (1) based on the United States Supreme Court's decision in Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988), Sears was a reasonably ascertainable creditor entitled to actual notice of the commencement of probate proceedings; (2) Sears did not receive such actual notice within the six-month time limit for filing claims established by § 473.360; and (3) it would be a violation of Sears' due process rights to apply this statute's six-month time limit to bar Sears' claim.

A hearing was held on Sears' motion on January 13, 2004. On January 26, 2004, the court entered an order stating that Sears' claim was barred by Missouri law because the claim was filed more than six months after the date of first publication of the notice of Arnold's appointment. See § 473.360. On February 6, 2004, Sears attempted to appeal from this order by filing a notice of appeal with the clerk of the Scott County Circuit Court.

Although neither of the parties question our jurisdiction to hear this appeal, we are required to do so sua sponte. Kohl v. Safeco Ins. Co., 755 S.W.2d 314, 315 (Mo.App.1988). Before we can address the merits of this appeal, we must decide two questions: (1) is this probate order appealable; and (2) if so, was the notice of appeal from the order timely filed?

Appealability of the Order

"Appeals are creatures of statutes and without underlying statutory authority, no right to appeal exists." Four Seasons Racquet and Country Club Property Owners Ass'n v. Abrams, 858 S.W.2d 835, 836 (Mo.App.1993). The principal Missouri statute that creates the right of appeal in a civil case is § 512.020. See Stelts v. Stelts, 126 S.W.3d 499, 502 (Mo.App.2004); Barlow v. State, 114 S.W.3d 328, 331 (Mo.App.2003). Insofar as it is pertinent here, § 512.020 permits an aggrieved party to appeal "from any final judgment in the case...."² A "final judgment," within the meaning of this statute, disposes of all parties and issues in the case and leaves nothing for further determination. Precision Investments, L.L.C. v. Cornerstone Propane, L.P., 119 S.W.3d 611, 614 (Mo.App.2003); Sunbelt Environmental Services, Inc. v. Rieder's Jiffy Market, Inc., 106 S.W.3d 556, 557 (Mo.App.2003); see also § 511.020 (defining a "judgment" to be the final determination of the rights of the parties in an action); In re Estate of Alexander, 327 S.W.2d 218, 219 (Mo.1959) (holding that there is no appealable judgment within the meaning of § 511.020 unless there has been a final determination of the rights of the parties that disposes of all issues in the case).

The trial court's January 26, 2004 order did not dispose of all parties and all issues pertaining to the estate's administration. Instead, the order merely denied one estate creditor's motion for an extension of time to file its claim. Since the trial court's ruling encompassed less than all parties and claims, the order does not constitute a "judgment" within the meaning of § 511.020, and it is not "final" within the meaning of § 512.020. Therefore, § 512.020 furnishes no statutory basis for Sears' appeal in this case. See Morrison v. Martin's Estate, 427 S.W.2d 783, 784 (Mo.App.1968) (absent specific authority, appeals do not lie from rulings on motions which do not constitute a final disposition of the cause).

Because the order which Sears seeks to challenge was entered in a probate proceeding, however, § 472.160 provides another possible statutory basis for Sears' appeal. See In re Estate of Sawade, 787 S.W.2d 286, 288 (Mo. banc 1990). This statute authorizes an appeal from a number of specific orders issued in a probate proceeding.³ Thus, it constitutes an exception to the general rule that "orders of the probate court are interlocutory, and not subject to appeal until final disposition." In re Estate of Burg, 68 S.W.3d 543, 544 (Mo.App.2001); see also In re Estate of Couch, 920 S.W.2d 165, 168 (Mo.App.1996). In the trial court's order, it denied Sears' motion for an extension of time to file a claim and ruled that the claim was barred by the six-month time limit found in § 473.360. Since Sears' claim exceeded the $100.00 threshold in § 472.160.1(1) and the claim was disallowed by the trial court, Sears may appeal this interlocutory order pursuant to § 472.160.1(13). See Kerber v. Alt, 275 S.W.2d 604, 606 (Mo.App.1955) (trial court's disallowance of creditors' demand, on the ground that the claim was barred because it had not been timely filed, was appealable).⁴

Timeliness of Sears' Filing of Its Notice of Appeal

Having determined that there is a statutory basis for Sears' appeal from the probate order disallowing its creditor's claim, we next consider whether the notice of appeal was timely filed. This is mandatory because "[a]ppeals are purely statutory, and must be taken within the time and in the manner provided by statute." Lucitt v. Toohey's Estate, 338 Mo. 343, 89 S.W.2d 662, 664 (1935); see also Holmes v. Navajo Freight Lines, Inc., 488 S.W.2d 311, 313 (Mo.App.1972). "Courts may not enlarge the statutory period within which an appeal may be taken...." In re Interest of T___ G___, 455 S.W.2d 3, 9 (Mo.App.1970).

Section 472.180 states that "[a]ll appeals shall be taken within the time prescribed by the rules of civil procedure relating to appeals." Section 472.210 states that, "[a]ppeals shall be taken in accordance with the rules of civil procedure relating to appeals." Rule 81.04 is the rule of civil procedure which establishes when and how an appeal must be taken:

When an appeal is permitted by law from a trial court, a party may appeal from a judgment or order by filing with the clerk of the trial court a notice of appeal. No such appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final.

Rule 81.04(a).⁵ As noted above, Sears attempted to appeal from the order disallowing its claim by filing a notice of appeal with the Scott County Circuit Clerk's office on February 6, 2004. Whether this filing was timely depends on when the trial court's order became final for purposes of appeal.

Section 472.160 creates an expedited right to appeal certain probate orders which otherwise would be interlocutory and unappealable. See, e.g., Cordes v. Caldwell, 731 S.W.2d 463, 465 (Mo.App.1987); State ex rel. Seiser's Estate v. Lasky, 565 S.W.2d 792, 794 (Mo.App.1978). Such expedited appeals serve the salutary purpose of allowing "many matters of importance to be resolved while the estate is open, and prevents one complex appeal from all matters that occurred during the administration of the estate." In re Erwin's Estate, 611 S.W.2d 564, 567 (Mo.App.1981). Because an appeal from one of the orders listed in § 472.160 is permitted while the estate is still open, such orders are immediately appealable upon entry. See In re Estate of Burg, 68 S.W.3d 543, 544-45 (Mo.App.2001); Kemp v. Balboa, 959 S.W.2d 116, 118 (Mo.App.1997). As the Western District of this Court noted in Kemp, the orders listed in § 472.160.1 "are ready for appeal when made." Kemp, 959 S.W.2d at 118. Therefore, the trial court's order disallowing Sears' claim became final for purposes of appeal on January 26, 2004. To be timely, Sears' notice of appeal had to be filed within ten days after January 26, 2004. See Rule 81.04; Burg, 68 S.W.3d at 544-45; 4 FRANCIS M. HANNA, MISSOURI PRACTICE, Probate Code Manual, § 472.160 pocket part at 10 (2d ed.2000). This 10-day period expired on February 5, 2004.

Sears' notice of appeal was untimely because it was not filed until February 6, 2004. Kohl v. Safeco Ins....