Horner v. Stankich

2014 OK CIV APP 29, 322 P.3d 1065, 2013 WL 8185625, 2013 Okla. Civ. App. LEXIS 133
CourtCourt of Civil Appeals of Oklahoma
DecidedOctober 25, 2013
DocketNo. 110794
StatusPublished
Cited by1 cases

This text of 2014 OK CIV APP 29 (Horner v. Stankich) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Horner v. Stankich, 2014 OK CIV APP 29, 322 P.3d 1065, 2013 WL 8185625, 2013 Okla. Civ. App. LEXIS 133 (Okla. Ct. App. 2013).

Opinion

LARRY JOPLIN, Chief Judge.

¶ 1 Appellant Carlton E. Horner, Jr. seeks review of the trial court’s orders denying him a continuance and construing the Last Will and Testament of his father, Carlton E. Hor-ner, Sr., Deceased (Decedent). In this appeal, Appellant asserts the trial court abused its discretion in denying him a continuance to obtain substitute counsel, and erred as a matter of both fact and law in refusing to enforce and affect Decedent’s specific devise of real property and bequests of money to him.

¶ 2 At the time Decedent executed his Last Will and Testament, Decedent owned a residence in his own name at 1205 Edgewater, Broken Arrow, Oklahoma. Also at the time, Decedent owned all the shares in a company known as Property Development, Inc. (“PDI”), and PDI owned two tracts of commercial real property located at 2003. W. Shawnee and 2316 W. Shawnee in Muskogee, Oklahoma.

¶3 Decedent executed his Last Will and Testament on November 10, 2004. Relevant to these properties, Decedent’s Will first directed the sale of all his real property, and a division of the proceeds among his heirs as part of his residuary estate. Decedent’s Will further provided:

... From the sale of the property located at 2003 W. Shawnee, Muskogee Oklahoma after the encumbrance is paid off it is my desire that the first $100,000 from said sale be paid to Carlton Horner, Jr.
... From the sale of the property located at 2316 W. Shawnee, Muskogee Oklahoma after the encumbrance is paid off it is my desire that the first $100,000 from said sale be paid to Carlton Horner, Jr.

In a handwritten letter to his daughter, Ap-pellee Carla Stankich, dated December 5, 2004, Decedent then wrote:

... When the buildings [at 2003 W. Shawnee and 2316 W. Shawnee] are sold, [Appellant] is to get $100,000 from each sale. He gets $900.00 a month for leasing and collecting the lease money. After the buildings are sold, pay off the house and my new [car]. After the house is paid off, [Appellant] can live in it. If he ever decides he doesn’t want to live in it, sell it.

On June 21, 2006, PDI conveyed the property located at 2003 W. Shawnee to Appellant without consideration.

¶ 4 By document executed July 31, 2009, Decedent created a living trust. Decedent conveyed to the trust all of his stock in PDI, which owned the remaining Muskogee commercial property. The trust document directed distribution of the trust assets, including the PDI shares, to named beneficiaries upon Decedent’s death.

¶ 5 Prior to Decedent’s death, PDI sold the property at 2316 W. Shawnee. From the proceeds, PDI paid Appellant a “referral fee” of $57,500.00 and PDI retained the remaining proceeds of the sale.

¶ 6 Also prior to Decedent’s death, PDI purchased a tract of unimproved real property in Muskogee County, Oklahoma, from Bill and Marilyn Palmieri. At the same time, Decedent purchased from the Palmieris a second tract and residence in Muskogee, and held title to the second tract in his name alone. Appellant lived in the Muskogee residence acquired from the Palmieris after its purchase.

¶ 7 Decedent died in September 2010, and probate proceedings commenced. By order dated November 3, 2010, the trial court ad[1067]*1067mitted Decedent’s November 2004 Will to probate. The trial court also admitted Decedent’s December 2004 handwritten letter to Appellee as a holographic Codicil to the Will. The trial court appointed Appellee personal representative of the estate in accord with the Will.

¶ 8 By order filed January 10, 2011, the trial court allowed Appellant’s then-attorney to withdraw. By order filed March 16, 2011, the trial court allowed Appellant’s substitute counsel to withdraw.

¶ 9 By and through his third attorney, Appellant sought an interim accounting and partial distribution. Given PDI’s ownership of the properties directed sold by the Will, Decedent’s conveyance of his PDI shares to his living trust, PDI’s conveyance to Appellant of one of the Muskogee properties unsupported by consideration, and PDI’s sale of the other, Appellee sought a construction of the Will and an adjudication of Appellant’s interest in Decedent’s estate as limited to the only property owned by Decedent individually at the time of his death, i.e., Decedent’s Broken Arrow residence subject to the mortgage.

¶ 10 The trial court set the matters for hearing on March 16, 2012. On February 16, 2012, however, Appellant’s third attorney sought to withdraw, which the trial court allowed, and Appellant’s third attorney turned over all files and materials to Appellant.

¶ 11 Appellee, a resident of Michigan, traveled to OMahoma, and appeared with her attorney on the date of hearing. Appellant appeared unrepresented and requested a continuance to obtain yet another attorney. Upon Appellee’s objection and plea of hardship if a continuance was granted, the trial court denied Appellant a continuance, and proceeded to accept the testimony and evidence of Appellee, the testimony of Appellant, and the testimony of an employee of the abstract company where the Palmieri purchase was consummated to the effect that Decedent had purchased the Palmieri residence for Appellant. The evidence also showed that Appellant made payments to the Palmieris toward a $5,000.00 note as part of the purchase of the Palmieris’ house.

¶ 12 Upon consideration of the testimony and evidence, the trial court held:

Property which was not owned by the [Djecedent at the time of his death is not legally devisable. Following that principle, proceeds from the sale of property not owned by the [Djecedent’s estate renders bequests derived from the use of such proceeds unenforceable. Sections 6.01 and 6.02 of the Will direct the sale of specific property which [Decedent] did not own. Directives for the use of proceeds under 6.01 and 6.02 and the Codicil cannot be given effect. [Appellant] was given the right to live in the only house owned by [Djecedent when the Will was executed, that being in Broken Arrow. The mortgage on the Broken Arrow house was to be paid off from the proceeds of the sale of the property [Decedent] did not own, and cannot be given effect. Reading Sections 4.01, 6.01 and 6.02 together it cannot be construed that [Decedent] intended [Appellant] to have the right to live in the Broken Arrow residence free of debt except as was able to be accomplished from the sale of the properties in 6.01 and 6.02.
TaMng these rules of construction into consideration the Court orders that:
1. [Appellant] shall have the right to elect to reside in the Broken Arrow residence subject to the debt thereon, such election to be made in writing within 20 days of the date of this Order and filed with the Court.
2. [Appellant] shall vacate the Muskogee Residence not later than 60 days after the date of this Order.
3. The Personal Representative, subject to the election of [Appellant] regarding the Broken Arrow property, shall be allowed to sell the Muskogee Residence and the Broken Arrow residence free of any claim of [Appellant] in the Muskogee Residence.
4. [Appellant] is obligated to the estate for the fair rental for the Muskogee residence which is a total rental obligation, as of May 1, 2012, of $11,400.00.
5.

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Related

IN THE MATTER OF THE ESTATE OF HORNER
2014 OK CIV APP 29 (Court of Civil Appeals of Oklahoma, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
2014 OK CIV APP 29, 322 P.3d 1065, 2013 WL 8185625, 2013 Okla. Civ. App. LEXIS 133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/horner-v-stankich-oklacivapp-2013.