Glover v. Kell

996 S.W.2d 559, 1999 Mo. App. LEXIS 551
CourtMissouri Court of Appeals
DecidedApril 27, 1999
DocketNo. 74868
StatusPublished
Cited by1 cases

This text of 996 S.W.2d 559 (Glover v. Kell) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Glover v. Kell, 996 S.W.2d 559, 1999 Mo. App. LEXIS 551 (Mo. Ct. App. 1999).

Opinions

ROBERT G. DOWD, Jr., Chief Judge.

Appellant Carthell Glover (Carthell) appeals from the trial court’s order dismissing his petition for revocation of independent administration filed in the Estate of Rita Glover.1 Carthell contends the trial court erred in ruling that the petition was time barred because the court had subject matter jurisdiction and the lack of notice under the nonclaim statute, Section 473.360, RSMo Supp.1998, is not a jurisdictional bar. Carthell further contends the trial court erred as a matter of law in finding there was no estoppel. We affirm.

Carthell is the son of decedent William Glover and the stepson of decedent Rita Glover. Carthell brought a wrongful death action against defendants Dennis Hornsby and Rita Glover for the death of William Glover. In November 1996, during the pendency of the wrongful death action, Rita Glover died. In December 1996, Carthell filed a motion in the wrongful death action seeking the substitution of Mark Ostenfeld, the public administrator, to serve as a party defendant upon the ■suggestion of death of Rita Glover. On December 16, 1996, Christopher Simms (Simms), attorney for Lilly Kell (Kell), advised Carthell’s attorney by letter that Kell had filed an application for letters testamentary for Rita Glover’s estate and that they expected an order of appointment and a probate cause number in the next few days.

On January 2, 1997, Kell was appointed the personal representative for the Estate of Rita Glover. On January 4,1997, notice of the letters testamentary appointing Kell was first published. On January 8, 1997, Donald Nangle (Nangle), Rita Glover’s attorney, filed a Suggestion of Death and Motion to Substitute in the wrongful death action.

[561]*561On February 4, 1997, Carthell filed his petition for revocation of Kell’s independent administration of the Estate of Rita Glover. This petition was later amended and included the $500,000 judgment against Kell, as personal representative, from the wrongful death action. In his Second Amended Petition, Carthell alleged that Kell and Simms paid Nangle and Art Muegler (Muegler), another of Rita Glover’s attorneys, an excessive amount for attorneys’ fees out of the estate. Carthell also alleged Kell and Simms made improper disbursements from the estate to the attorneys, Nangle and Muegler, in violation of a district court order. Carthell sought the revocation of Kell’s independent administration of the Estate of Rita Glover and also the revocation of the letters of administration of Kell as the personal representative. Carthell further sought a judgment against Kell and Simms in the amount of the improper disbursements for attorneys’ fees, with the judgment to be paid back into the estate.

In response, Kell and Simms filed their motion to dismiss arguing that Carthell was not an interested party with standing to raise these issues because 1) he had not filed a verified notice of his claim as required by Section 472.080, RSMo 1994; and 2) his claim is not enforceable as he did not timely file his claim with the probate court as required by Section 478.360, RSMo Supp.1998. The notice of letters testamentary was first published on January 4,1997. Carthell did not file a copy of the petition and a copy of the Suggestion of Death and Motion for Substitution of Parties with the probate division until August 6, 1997. They further asserted that Kell, as personal representative, and Simms, her attorney, owed no duty to Carthell, but rather owed duties to the beneficiaries of the estate.

The trial court granted Kell and Simms’ joint motion to dismiss and dismissed Carthell’s Second Amended Petition. The trial court found that the failure to file notice with the probate division prevented the court from considering the claim and barred recovery against the estate and its assets. The trial court held that since Carthell did not have an enforceable claim against the estate, he was not an interested party, and therefore, he did not have standing to petition the court for the revocation of independent administration. The trial court did order a hearing concerning Kell’s management, as personal representative, of the Estate of Rita Glover.

Our standard of review is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), and we must uphold the trial court’s judgment unless it is not supported by substantial evidence, is against the weight of the evidence, or the court has erroneously declared or applied the law. Id. at 32.

In Point I, Carthell argues the trial court erred in ruling that the petition was time barred because the court had subject matter jurisdiction and the lack of notice under Section 473.360, RSMo Supp.1998, is not a jurisdictional bar.

The time frame for filing claims with the probate division is mandated by Section 473.360, RSMo Supp.1998. This section provides:

1. ... all claims against the estate of a deceased person ... which are not filed in the probate division of the circuit court within six months after the date of the first published notice of letters testamentary or administration ... are forever barred against the estate, the personal representative, the heirs, the devisees and legatees of the decedent.
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2. Unless written notice of actions instituted or revived under section 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 actions on any judgment therein against the personal representative out of any assets being administered upon in the probate division or from any distributee or other person receiving the assets.

[562]*562Section 47B.363, RSMo 1994, is a specific application of this nonclaim statute. Section 473.363.1 states:

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

Carthell attempts to argue the nonclaim statute is jurisdictional only in a “limited sense.” Carthell relies on Section 473.013, RSMo 1994, which provides, in part, “No notice is jurisdictional except the notice by publication provided in Section 473.033, unless the provision requiring the notice expressly provides that the notice is jurisdictional.” Carthell argues Section 473.360is not expressly jurisdictional. However, we are bound by the Supreme Court which has held strict compliance with Section 473.360 is mandatory and jurisdictional. Missouri Highway and Transp. Com’n v. Myers, 785 S.W.2d 70, 73 (Mo. banc 1990); State ex rel. Whitaker v. Hall, 358 S.W.2d 845, 849 (Mo. banc 1962).

To avoid the consequence of his inaction, Carthell contends he should be permitted to proceed because different rules apply in an independent administration. Carthell argues notice to the personal representative is sufficient because this was an independent administration and there is no need for a separate notice to the probate division.

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Bluebook (online)
996 S.W.2d 559, 1999 Mo. App. LEXIS 551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/glover-v-kell-moctapp-1999.