Kemp v. Balboa
| Decision Date | 12 August 1997 |
| Docket Number | No. 71514,71514 |
| Citation | 959 S.W.2d 116 |
| Parties | In the Matter of Michael KEMP, Deceased, Respondent, v. Antonio BALBOA, Appellant. |
| Court | Missouri Court of Appeals |
Jeremiah W. (Jay) Nixon, Atty. Gen., David A. Johnston, Asst. Atty. Gen., Jefferson City, for appellant.
James E. Mello, Jeffrey T. McPherson, Armstrong, Teasdale, Schlafly & Davis, St. Louis, for respondent.
Antonio Balboa appeals from the order of the trial court denying his motion for revocation of letters of administration on the basis that no timely application for letters was made. We reverse.
Deceased was a former inmate who was incarcerated by the Missouri Department of Corrections. He died intestate on March 5, 1994, from respiratory arrest due to a severe seizure disorder as a consequence of epilepsy. At that time he was no longer incarcerated.
In 1989, Kemp initiated a lawsuit in the United States District Court for the Western District of Missouri against Antonio Balboa, a correctional "utility" officer at the Central Missouri Correctional Center where Kemp was incarcerated. Kemp alleged that under 42 U.S.C. Section 1983, his constitutional rights were violated by Balboa because Balboa intentionally deprived Kemp of access to medical care by confiscating his epilepsy medication. In a jury trial before the Honorable Scott O. Wright, Kemp received a $1.00 verdict against Balboa. Both parties appealed. On May 5, 1994, the United States Court of Appeals for the Eighth Circuit ordered the case remanded for trial on the issues of damages only because of an error in the jury instructions. On March 5, 1994, during the pendency of the appeal, Kemp died.
On August 23, 1994, Kemp's mother filed a motion to be substituted in the federal proceeding. Judge Wright allowed the substitution after a conference with counsel. In his suggestions in support of the motion for revocation, Balboa stated that the issue of the commencement of probate proceedings arose and mother's counsel stated that such proceedings would be commenced. Mother's suggestions in opposition to the revocation do not discuss the conference. Subsequently, when no probate estate had been opened, Balboa moved to dismiss the federal action. That motion was granted on October 10, 1995.
On October 20, 1995, Ms. Kemp applied for letters of administration in the Madison County Probate Court which were granted October 25, 1995. Ms. Kemp was appointed personal representative. The only property of decedent subject to administration is the federal lawsuit. After granting of the letters, Judge Wright vacated the order of dismissal of the federal case.
In May 1996, Balboa filed a motion for revocation of the letters of administration on the ground that the application was untimely because it was made more than a year after Kemp's death. That motion was denied on September 30, 1996 and this appeal followed.
First we address two preliminary matters. Section 472.160 RSMo 1994 provides for appeal by "any interested person" of a number of actions occurring in the probate court. Included are orders revoking letters testamentary or of administration and orders denying a request for revocation. Section 472.160.1. (9) and (13). "Interested persons" are defined in section 472.010(15) RSMo to mean heirs, devisees, spouses, creditors or any others having a property right or claim against the estate of a decedent being administered. This meaning may vary at different stages and different parts of a proceeding and must be determined according to the particular purpose and matter involved. In Estate of Glover, 854 S.W.2d 850 (Mo.App.1993) [2,3] we held a contingent debtor of the estate to be an "interested person" entitled to seek appointment of a personal representative for a decedent's estate. There we relied upon In the Matter of Windholz, 809 S.W.2d 30 (Mo.App.1991) which in turn relied upon In re Dugan's Estate, 309 S.W.2d 137 (Mo.App.1957). Balboa is a contingent debtor of the estate of Kemp and he "has an interest in knowing that the person ... who may obtain judgment against him ... is lawfully entitled to receive such money." Glover, supra at . Balboa has standing to seek revocation of the letters of administration and to appeal the denial of his motion to revoke.
Rule 74.01(a) provides: The order of the trial court denying Balboa's motion for revocation of letters of administration was not delineated as a judgment. The Supreme Court has recently stated that the "intent of this procedural amendment was to remove confusion that existed as to when a pronouncement or judgment was final for purposes of appeal." Linzenni v. Hoffman, 937 S.W.2d 723 (Mo.banc 1997). In Chambers v. Easter Fence Company, Inc., 943 S.W.2d 863 (Mo.App.1997)[2,3] we stated the requirement of denominating an order as a judgment was not a formality but was to require the trial court to carefully consider whether its decision constitutes a judgment, i.e. a "final determination of the rights of the parties."
Section 472.160 RSMo 1994, provides a long list of orders, many clearly interlocutory in nature, which may be appealed from a probate proceeding. Many of them do not purport to be a final determination of the rights of the parties. In most there is no confusion as to when the pronouncement is final for purposes of appeal. The orders listed in that section are ready for appeal when made. Rule 41.01(b) provides that certain rules, not specifically including 74.01, apply to proceedings in the probate division of the circuit court. We are unable to conclude that Rule 74.01 requires that every order in a probate proceeding which is subject to appeal under Section 472.160 must be labeled a judgment before it can be...
To continue reading
Request your trial
- Martin v. State
-
In re Estate of Forhan
...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." ......
-
In re Smith
...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).In Kemp v. Balboa, 959 S.W.2d 116, 118 (Mo. App. E.D. 1997), this Court interpreted the rules regarding appeals from an interlocutory probate order such as this. The court ......
-
In re Estate of Standley
...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), ......