Landing v. McGough (In re The Estate of Landing)

• Docket Number: 120759
• Decision Date: 12 December 2023
• Parties: In the Matter of the Estate of GEORGE VERNON LANDING, JR., Deceased. v. JIM C. McGOUGH, Personal Representative of the Estate of George Vernon Landing, Jr., Appellee. EMMA G. LANDING, Appellant,
• Court: Oklahoma Supreme Court

2023 OK 117

In the Matter of the Estate of GEORGE VERNON LANDING, JR., Deceased.

EMMA G. LANDING, Appellant,
v.
JIM C. McGOUGH, Personal Representative of the Estate of George Vernon Landing, Jr., Appellee.

No. 120759

Supreme Court of Oklahoma

December 12, 2023

ON APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, STATE OF OKLAHOMA; HONORABLE KELLY GREENOUGH, DISTRICT JUDGE

Emily S. Eleftherakis, Oklahoma City, OK for Appellant.

Catherine Welsh, Tulsa, OK for Appellee.

KUEHN, J.

¶0 Appellant sought to remove the current administrator of her father's estate, claiming that under 58 O.S. § 135, she has superior right to the role and the court had no discretion to refuse her request. The District Court of Tulsa County, the Honorable Kelly Greenough, disagreed and denied Appellant's request. We hold that the trial court had discretion in the matter and did not abuse that discretion when it denied Appellant's motion.

¶ 1 George Landing, Jr. was tragically killed when his truck was hit by a motorist driving the wrong direction on the Turner Turnpike. Landing was divorced. He left behind two minor daughters. He left no will. One of the daughters, Emma, is the Appellant here. Among Landing's assets is the potential for his estate to recover in a wrongful-death action. This case involves a third-party administrator and personal representative for Landing's estate, the possibility of monetary recovery from the accident, and a succession of lawyers interested in participating in the wrongful-death suit. The issue presented is whether the trial court has discretion to deny removal of a third-party administrator when requested to do so by one of the family members listed in 58 O.S. § 135.

¶2 Landing died in July 2015. In August his ex-wife, Dana Landing (now Beagles), acting as their daughters' guardian, petitioned to be administrator of Landing's estate. The request was granted. In December 2015 Beagles, acting as personal representative of the estate, filed a wrongful-death action in Tulsa County. That action remains pending. ^[1] A local attorney with experience in probate matters, Appellee Jim McGough, was appointed general guardian to Landing's daughters. In early 2018, Beagles voluntarily resigned as administrator of the estate and named McGough to take her place. McGough was also substituted as the estate's personal representative in the wrongful-death suit.

¶3 An estate's representative chooses the attorneys who will prosecute civil suits on the estate's behalf. See generally 58 O.S. § 11. Since McGough's appointment, there have been many attempts to remove him from both of his roles. These attempts stem from Beagles's discussions with various lawyers interested in participating in the wrongful-death suit. Because McGough apparently did not agree to substitute the lawyers Beagles wanted for the lawyers he had already retained, in May 2020 Beagles tried to have him removed as administrator. The trial court concluded Beagles lacked standing to make such a challenge.

¶4 Just days after her eighteenth birthday in March 2021, Emma Landing made her own request to remove McGough and assume the roles of administrator and personal representative. That request was denied after a hearing. A second request, in July 2021, was later stricken by agreement. In June 2022, Emma filed the instant request to replace McGough. At a hearing in August 2022, the trial court granted an unopposed motion to end McGough's guardianship over both Emma and her younger sister, but it denied Emma's request to take McGough's place as administrator. Emma appealed, and we retained the case for decision.

STANDARD OF REVIEW

¶ 5 Probate proceedings are of equitable cognizance. We presume that the trial court's decision is correct and will not disturb it unless it is clearly contrary to the weight of the evidence. In re Estate of Fulks, 2020 OK 94, ¶ 9, 477 P.3d 1143. This case also involves questions of statutory interpretation; those questions are reviewed de novo. Id. De novo review affords this Court plenary, independent, and non-deferential authority to interpret the law. Schlumberger Technology Corp. v. Paredes, 2023 OK 42, ¶ 3, 528 P.3d 772.

ANALYSIS

A. Whether the appeal is foreclosed as res judicata.

¶ 6 In his response to Emma's Petition in Error, McGough claims Emma is barred from appealing the trial court's August 2022 ruling because she could have appealed the court's March 2021 denial of the same request but failed to do so. We disagree.

¶7 Emma's present attempt to remove McGough is based on the same grounds as her first attempt in March 2021. The question presented is one of law. Focusing on the language of 58 O.S. § 135, Emma claims that as Landing's adult daughter, her right to the role of administrator is superior to McGough's, and the court was required to grant her request.

¶8 The doctrine of claim preclusion, or res judicata, holds that parties (or their privies) may not relitigate issues once a final judgment on the merits has been rendered. In the Matter of the Estate of Sneed, 1998 OK 8, ¶ 13, 953 P.2d 1111. Failure to seek review of a trial court's adverse ruling on a particular claim, after final disposition on the merits, usually precludes any future attempt to have the claim reviewed. But the legislature has determined that certain interlocutory orders (those rendered before final judgment) are appealable by right, and many probate orders, including the instant one, fall in this category. 58 O.S. § 721 (1) (appeal may be taken from any grant, refusal to grant, or revocation of letters of administration); Sup.Ct. Rule 1.60(h). While these rulings may be appealed before final judgment, failure to take an interlocutory appeal does not bar the aggrieved party from raising the claim at a later date. Sup.Ct. Rule 1.40(f). Res judicata will not bar review of probate orders that could have been challenged previously but were not. Sneed, 1998 OK 8, ¶ 13 & n.15. See also In re Estate of Caldwell, 1984 OK 92, ¶ 6 n.8, 692 P.2d 1380 (untimely attempt to appeal interlocutory probate order would not prevent litigant from re-asserting the claim later).

¶9 Furthermore, the essence of Emma's claim is that she should have the right, as the estate's personal representative, to guide the wrongful-death lawsuit -- a suit that could produce the largest asset of the estate. Such a right, if it exists, is meaningless if not conferred while that lawsuit is ongoing. See 58 O.S. § 721 (10) (interlocutory appeal may be taken from any order in probate that "affect[s] a substantial right"); see also In re Guardianship of Berry, 2014 OK 56, ¶¶ 36-39, 335 P.3d 779 (interlocutory order on choice-of-counsel in guardianship matter was appealable before final judgment under 58 O.S. § 721 (10)). We conclude that Emma's timely appeal from the August 2022 ruling is not barred by res judicata.

B. Whether the trial court erred in denying Emma's request to take McGough's place as administrator.

¶ 10 Emma claims she has superior right to the role of administrator vis a vis McGough and therefore enjoys the absolute right to take his place. She claims it is not her burden to show, as a preliminary matter, that she is competent to replace him, but rather that it was McGough's burden to show that she is not competent to serve, and that he failed to meet that burden.

¶11 Since Landing was unmarried at the time of his death, his daughters were next on the preferred list of potential administrators. 58 O.S. § 122 (2). At the time, however, both girls were minors and thus ineligible to serve. 58 O.S. § 126 (1). The girls' mother, Beagles, acting as their guardian, stepped into their shoes to take preferred position as administrator. 58 O.S. § 125; Sparks v. Steele, 1972 OK 127, ¶ 13, 501 P.2d 1106. Later, Beagles voluntarily stepped down as administrator and nominated McGough to take her place. 58 O.S. § 134; Hesler v. Snyder, 1967 OK 4, ¶ 21, 422 P.2d 432.

¶12 Emma doesn't challenge her mother's ability to nominate a third party, or McGough's qualifications to accept it. Nor does she claim that McGough has done (or failed to do) anything since his appointment that would warrant removal. She simply claims that she has the absolute right to rescind that appointment under the applicable law. We disagree.

¶13 Our probate code sets out rules for the appointment, challenge, and removal of personal administrators. For the initial appointment, the law provides a list of those who must be given the opportunity to serve, in...