Missouri Highway and Transp. Com'n v. Myers

• Decision Date: 10 January 1990
• Docket Number: No. 71286,71286
• Citation: 785 S.W.2d 70
• Parties: MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Appellant, v. Ardeis H. MYERS, Jr., Personal Representative, Estate of Flora E. Myers, Respondent.
• Court: Missouri Supreme Court

Page 70

785 S.W.2d 70

MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Appellant, v. Ardeis H. MYERS, Jr., Personal Representative, Estate of Flora E. Myers, Respondent.

No. 71286.

Supreme Court of Missouri,

En Banc.

Jan. 10, 1990.

Dissenting Opinion of Judge Higgins March 13, 1990.

Rehearing Denied March 13, 1990.

Thomas Rynard, Missouri Highway & Transp. Com'n, Jefferson City, for appellant.

Robert Raymond, Claudia J. York, Kathleen A. Forsyth, Kansas City, for respondent.

RENDLEN, Justice.

This direct appeal is from the dismissal of the Missouri Highway and Transportation Commission's (Commission) petition to force a sale of real property inventoried in the estate of Flora Myers. The Commission had filed its petition as an alleged creditor of the estate, and among its contentions challenges the constitutionality of Missouri's probate nonclaim statute, § 473.360, RSMo 1978 ¹, bringing the cause within the ambit of our original appellate jurisdiction. Mo. Const. art. V, § 3.

The issues preserved for review include the following:

(1) Though the Commission failed to file a claim against the decedent's estate within the six-month limitation period of § 473.360, the personal representative is estopped from raising the time bar of the statute; (2) The Commission should be allowed to take advantage and be considered within the compass of a timely claim filed by one of its adversaries in these matters, the Commerce Bank of Kansas City (Bank), against Flora Myers' estate; (3) Missouri's nonclaim statute, § 473.360, is unconstitutional, as applied, in light of Tulsa Professional Collection Services v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988); and (4) The decision in Pope, though decided nearly nine years after the Commission's claim was barred, should be applied retrospectively to the case sub judice.

When examining the record before us, one is beset with the disquieting impression that this litigation has about it an aura of life everlasting. See State ex rel. State Highway Commission v. Morganstein (Morganstein I), 588 S.W.2d 472 (Mo. banc 1979); State ex rel. State Highway Commission of Missouri v. Morganstein (Morganstein II), 649 S.W.2d 485 (Mo.App.1983); Commerce Bank of Kansas City v. Randall, 675 S.W.2d 687 (Mo.App.1984); State ex rel. Missouri Highway and Transportation Commission v. Morganstein (Morganstein III), 703 S.W.2d 894 (Mo. banc 1986); State ex rel. State Highway Commission of Missouri v. Morganstein (Morganstein IV), 714 S.W.2d 576 (Mo.App.1986); and Missouri Highway and Transportation Commission v. Commerce Bank of Kansas City, 763 S.W.2d 172 (Mo.App.1988).

In July, 1970, the Commission instituted condemnation proceedings against land of Ardeis Myers, Sr. and Flora Myers and on February 2, 1971, the commissioners in condemnation assessed the landowners' damages at $387,000. That sum, deposited by the Highway Commission in the court registry on February 23, 1971, and ordered paid to the Myers along with seven other named parties ², was promptly drawn down. Shortly thereafter the Commission filed exceptions naming the several defendants including Ardeis Myers, Sr. Though Ardeis, Sr. died January 20, 1974, the Commission did nothing to establish a claim against his estate other than moving to substitute his coexecutors as parties in the decedent's stead, more than ten months following the first publication of notice of letters testamentary. On May 24, 1976, the jury in the trial of exceptions set damages at $150,000, $237,000 less than the commissioners' award and the court entered judgment on the verdict, ordering defendants to repay the excess plus interest. From that judgment the defendants appealed. In Morganstein I, this Court held that the estate of Ardeis Myers, Sr. had been improperly included as a party by the trial court when the exceptions were tried and that time limitations barred the Commission's action against his estate. The six-month requirement of § 473.360 had long been held to be jurisdictional. State ex rel. Whitaker v. Hall, 358 S.W.2d 845 (Mo. banc 1962).

Lamentably, on March 8, 1979, during the pendency of Morganstein I, Flora Myers died. On April 20, her son, Ardeis Myers, Jr., in his capacity as trustee, filed here a Suggestion of the Death of Flora Myers, serving the Commission with copies thereof. On May 8, Ardeis, Jr. applied for letters testamentary, which issued May 15, 1979, and on May 18 the first Notice of Letters Testamentary was published as required by § 473.033.

On June 15, 1979, Ardeis, Jr. moved to substitute himself, in his capacity as executor, as a party in place of his mother. A copy of that motion was served on the Commission and on June 20, this Court ordered that the executor be substituted for Flora Myers in the pending appeal. Thus the Commission received actual notice of these essential facts from the executor and further was again advised thereof by the factual recitals contained in the Court's opinion handed down September 11, 1979, in Morganstein I. In sum, the publication of notice of letters gave the Commission at least constructive notice ³ of the administration on the decedent's estate. Actual notice of the fact of death and the date thereof, as well as the fact that an estate had been opened, the probate division of the court where this had occurred, the assigned number of the estate, and the name and identity of the executor, were all provided the Commission by the executor's motion to substitute.

Notwithstanding such notice, the months wore on and the Commission filed no claim or notice of substitution in the probate division of the Jackson County Circuit Court. On November 18, 1979, all claims not then filed or otherwise properly commenced in the estate of Flora Myers were barred.

On remand, judgment was entered September 14, 1983, in which the trial court found that the estate of Flora Myers was liable for the full amount of the excess condemnation award, which by then totaled $415,626.58. On January 11, 1984, the Commission sent a copy of that judgment to the probate division, and on March 29, 1988, the Commission filed its present petition praying an order of the probate division to sell real property of the Flora Myers estate. The executor responded with a motion to dismiss the petition for lack of standing, asserting as its basis the fact that the Commission had never properly filed or otherwise instituted a claim against the estate. Thereafter, on September 6, 1988, the Commission for the first time filed its claim, and on December 5 of that year, the probate division denied the Commission's request to file an amended petition and sustained the personal representative's motion to dismiss. This appeal followed.

There is no question that the Commission simply did not file a claim in the probate division of Jackson County within the time frame mandated by § 473.360. We have examined the former and current versions of § 473.360 and again conclude, as in State ex rel. Whitaker v. Hall, 358 S.W.2d 845, that the statute, which in its pertinent provisions remains unchanged, is mandatory and jurisdictional. In Hall at 849, the Court aptly described the statute's sweep as follows:

The statutes here involved deal with and define in precise terms the limitations placed upon the jurisdiction of probate courts to allow claims not filed within the time and manner prescribed by law; they are mandatory and jurisdictional; so made for the purpose of expediting the liquidation and distribution of estates of deceased persons and they may not be waived.

To avoid the consequence of its inaction, the Commission contends it should be permitted to proceed by virtue of § 473.363.1, RSMo 1978, which states:

1. Any action pending against any person at the time of his death, which, by law, survives against the executor or administrator, is considered a claim duly filed against his estate from the time substitution of the executor or administrator for the deceased defendant, or motion therefor, is made and written notice thereof is filed in the probate division. (Emphasis added.)

The purpose of this provision is twofold. It first explains the type of claims that may be considered within the purview of the section and next the manner in which actions pending against the decedent are deemed filed under the scheme prescribed in § 473.360, naming two requirements:

(1) The personal representative must be substituted for the deceased defendant in the pending action, or motion for such substitution must be filed in that action;

(2) Written notice of such substitution or motion must be filed in the probate division.

It is necessary that both requirements be met before a claim represented by an action pending at the decedent's death can be considered by the probate court. The second of these was never fulfilled and such is an indispensable jurisdictional prerequisite. The express language of 473.360.2, referencing § 473.363, reiterates that "unless written notice of actions instituted or revived under § 473.363 or § 473.367 is filed in the probate division within six months after the first published notice of letters, no recovery may be had in any such action on any judgment therein against the personal representative out of any assets [of the estate] (emphasis added)." Though § 473.363.2 tasks the personal representative within 90 days of his appointment to notify the probate division of known pending actions, that subsection also specifically provides:

Nothing herein contained, however, shall be construed as extending, suspending, or in any other way affecting the period of nonclaim provided by section 473.360.

And further:

No executor or administrator shall have any liability for failing to give notice.

The burden to commence and prosecute claims against a decedent's estate remains the responsibility of a claimant. The general purpose of the nonclaim statutes is to provide relief against uncertainty, facilitating prompt...