In re Estate of Standley

• Decision Date: 07 November 2006
• Docket Number: No. 27444.,27444.
• Citation: 204 S.W.3d 745
• Parties: In the ESTATE OF Elta B. STANDLEY, Deceased. Doris J. Standley and Michael D. Standley, Respondents, v. Charles K. Standley, Appellant.
• Court: Missouri Court of Appeals

204 S.W.3d 745

In the ESTATE OF Elta B. STANDLEY, Deceased Doris J. Standley and Michael D. Standley, Respondents, v. Charles K. Standley, Appellant.

No. 27444.

Missouri Court of Appeals, Southern District, En Banc.

November 7, 2006.

Verna L. Haun, Bolivar, for Doris J. Stanley.

Clifford S. Brown & J. Craig Preston, Springfield, for Michael D. Stanley.

ROBERT S. BARNEY, Judge.

This is an appeal brought by Charles K. Standley ("Appellant") arising from the probate court's "Judgment With Findings of Fact and Conclusions of Law," relating to the estate of Elta B. Standley ("Decedent"). There the probate court imposed two equitable liens against the assets of Decedent's estate ("the Estate"), one in favor of Respondent Doris J. Standley ("Doris"), and one in favor of Respondent Michael D. Standley ("Michael") (collectively "Respondents"). Additionally, the probate court denied Appellant's request to set aside its Letters Testamentary which named Doris as personal representative of the Estate.¹ We dismiss Appellant's untimely appeal.

The record reveals Decedent died testate on June 21, 2003. Decedent's will was presented for probate on August 8, 2003, accompanied by an affidavit for small estate filed by Doris.

On September 29, 2003, Appellant filed a "Petition for Accounting" against Respondents based on actions purportedly taken by them in their capacity as Decedent's attorneys-in-fact under a durable power of attorney granted them on February 29, 1996. In its interlocutory judgment, the probate court determined, inter alia, that Appellant was entitled to receive certain statements of accounts from each Respondent.

The record further shows that discovery commenced among the parties. At some point in time thereafter, Doris discovered a $25,000.00 bond which was payable to Decedent. As a result of this discovery, Doris filed an "Application for Letters Testamentary" on March 30, 2005, in which she explained that "[s]ince the [filing of the] small estate affidavit, additional assets have been discovered that have caused the estate of [Decedent] to exceed the limits of a small estate." The probate court then issued letters testamentary to Doris on March 31, 2005.

On July 15, 2005, Doris filed a claim against the Estate in the amount of $13,713.87 for "attorney fees and expenses incurred in making an accounting. . . ." Thereafter, on August 18, 2005, Michael filed a "Petition to Impose Lien" upon the Estate in the amount of $27,886.45 pursuant to a provision in the durable power of attorney that stated that if an accounting was required by the attorneys-in-fact, reimbursement would be made to them out of "property under their control," and if insufficient, then from the Estate by the personal representative.

On September 15, 2005, Appellant filed a motion to set aside the letters testamentary.²

A hearing was held relating to the aforementioned matters on October 18, 2005. The probate court thereafter entered its "Judgment with Findings of Fact and Conclusions of Law" on December 9, 2005, and sustained Respondents' separate petitions for the imposition of equitable liens against the Estate.³ The probate court also determined the letters testamentary issued to Doris, and dated March 31, 2005, were properly issued.

Appellant filed his notice of appeal on January 3, 2006. It is our determination that Appellant's appeal was not timely filed.

"`[A]ppeals are purely statutory, and must be taken within the time and in the manner provided by statute.'" In re Estate of Forhan, 149 S.W.3d 537, 541 (Mo.App.2004) (quoting Lucitt v. Toohey's Estate, 338 Mo. 343, 89 S.W.2d 662, 664 (1935)). "`Courts may not enlarge the statutory period within which an appeal may be taken. . . .'" Id. (quoting In re Interest of T.G., 455 S.W.2d 3, 9 (Mo.App. 1970)).

Section 472.180 provides that "[a]ll appeals shall be taken within the time prescribed by the rules of civil procedure relating to appeals." Section 472.210 of the Probate Code provides that, "[a]ppeals shall be taken in accordance with the rules of civil procedure relating to appeals."⁴ As such, we turn to Rule 81.04(a):

[w]hen 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.

(Emphasis added).

Generally, orders of the probate court are interlocutory and are not subject to appeal until final disposition of the matters before the court. In re Estate of Couch, 920 S.W.2d 165, 168 (Mo.App.1996); see § 472.150.⁵ However, if an order falls within the enumerated exceptions set forth in section 472.160.1,⁶ as in the present matter, it is deemed final for purposes of appeal, and any interested and aggrieved person has the right to appeal.⁷ In re Estate of Burg, 68 S.W.3d at 545; see State ex rel. Estate of Seiser v. Lasky, 565 S.W.2d 792, 794 (Mo.App.1978).⁸

"Section 472.160 creates an expedited right to appeal certain probate orders which otherwise would be interlocutory and unappealable." Forhan, 149 S.W.3d at 541. "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.'" Id. at 541-42 (quoting In re Estate of Erwin, 611 S.W.2d 564, 567 (Mo. App.1981)). It follows that "[b]ecause an appeal from one of the orders listed in [section] 472.160 is permitted while the estate is still open, such orders are immediately appealable upon entry." Id. at 542. "The orders listed in [section 472.160] are ready for appeal when made." Kemp v. Balboa, 959 S.W.2d 116, 118 (Mo.App. 1997).⁹

In the present matter, the probate court's "Judgment" was made final when it was entered on December 9, 2005. Per Rule 81.04(a), Appellant then had 10 days in which to file his notice of appeal; however, he did not do so until January 3, 2006. Accordingly, Appellant's appeal was untimely. "In the absence of a timely-filed notice of appeal, we have no appellate jurisdiction." Forhan, 149 S.W.3d at 542. "Therefore, this appeal must be dismissed." Id.

PARRISH, J., Concurs.

GARRISON, J., Concurs in principal opinion and concurs in concurring opinion.

BATES, C.J./P.J., Concurs in separate opinion.

SHRUM, J., Dissents in separate opinion.

RAHMEYER, P.J., Concurs in dissenting opinion.

LYNCH, J., Recused.

JEFFREY W. BATES, Chief Judge, concurring.

I concur in the principal opinion. I write separately only to explain why I disagree with the assertion in the dissenting opinion that the result reached in the case at bar is based upon an incorrect application of the rules of civil procedure governing the time for filing a notice of appeal.

As the principal opinion correctly notes, the appellants attempted to appeal from an interlocutory order in a probate proceeding. Prior to 1978, an appeal from an interlocutory order authorized by § 472.160.1(1)-(13) had to be taken within 30 days after the decision was made. § 472.180 RSMo (1969). Thus, the appeal time ran from the entry of the order. Id. In 1978, § 472.180 was amended to require that all appeals be taken "within the time prescribed by the rules of civil procedure relating to appeals." § 472.180 RSMo (1978).

Rule 81.04 specifies that a notice of appeal must be filed "not later than ten days after the judgment or order appealed from becomes final." I can find no provision in the rules of civil procedure which specifies when an order is deemed final for purposes of appeal. Forhan, Burg and Kemp all hold that an interlocutory probate order, appealable pursuant to § 472.160, is final upon entry. In re Estate of Forhan, 149 S.W.3d 537, 542 (Mo.App.2004); 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). Under that analysis, the appellants' notice of appeal was untimely because it was filed 25 days after the order became final. According to the dissenting opinion, this conclusion is flawed because the finality of an interlocutory order should be determined by also applying the provisions of Rule 81.05. For the following reasons, I believe that argument is unsound.

It is evident from reviewing the plain language of Rule 81.05 that it applies only to judgments.¹ Since the interlocutory order entered in the case at bar did not adjudicate the rights of all parties and issues in the case, it does not constitute a final judgment that is appealable pursuant to § 472.160.1(14). See, e.g., In re Estate of Hoskins, 996 S.W.2d 792, 794 (Mo.App. 1999); In re Estate of Buder, 781 S.W.2d 259, 260 (Mo.App.1989); Smith v. Snodgrass, 747 S.W.2d 743, 744 (Mo.App.1988). Thus, a simple textual analysis of Rule 81.05 does not support its use here.

In Desterbecque, I believe we went awry by eschewing such a textual analysis in favor of the more "logical" approach of simply treating an order as a judgment, so as to permit Rule 81.05 to be used in computing the order's finality. In re Estate of Desterbecque, 800 S.W.2d 142, 146 (Mo.App.1990).² By doing so, we failed to give appropriate consideration to the reasons why Rule 81.05 delays the finality of a judgment in a civil case.

The purpose of Rule 81.05 is to determine when a judgment becomes final. If no timely, authorized after-trial motions are filed, a judgment becomes final 30 days after entry. Rule 81.05(a)(1). This delay in finality corresponds to the time period during which the trial court has the opportunity to exercise its retained authority, pursuant to Rule 75.01, to "vacate, reopen, correct, amend, or modify its judgment. . . ." Once that time period elapses, the trial court loses jurisdiction over the judgment. See Fortner v. Fortner, 166 S.W.3d 615, 617 (Mo.App.2005). If a timely, authorized after-trial motion...