In Re the Estate of Clare , 51 Kan. App. 2d 886 ( 2015 )

No. 112,762
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Estate of MICHAEL A. CLARE, Deceased.
SYLLABUS BY THE COURT
1.
K.S.A. 59-2239(1) requires a creditor to timely file a petition to open an estate
before the 6-month nonclaim period expires.
2.
To open an estate proceeding, K.S.A. 59-2204 requires the petitioner to file a
petition and cause it to be set for hearing.
3.
Jurisdiction to open a creditor estate administration is acquired by the district court
when a petition is filed and the petitioner has caused the petition to be set for hearing by
obtaining an executed order for hearing before the nonclaim period expired.
4.
The hearing date on the petition may be after the nonclaim period has expired if
the order setting the date for hearing is executed before the nonclaim period expired.
5.
K.S.A. 59-2204 cannot be read on its own and must be read together with the other
probate statutes governing the procedures to be followed in opening an estate proceeding.
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6.
After a petition to open an estate is filed, K.S.A. 59-709 requires notice, pursuant
to an order of the district court, be provided to all creditors of the estate known and
unknown.
7.
After a petition to open an estate proceeding is filed, K.S.A. 59-2208 and K.S.A.
59-2209 both require an order for hearing executed by the district court setting the date
and time of the hearing. The order generally defines the type of notice to be provided to
all interested parties, heirs, and creditors known or unknown, whether by publication or
as the court directs as reasonable.
8.
When K.S.A. 59-2204, K.S.A. 59-709, K.S.A. 59-2208, K.S.A. 59-2209, and
K.S.A. 2014 Supp. 59-2222(a) are read in pari materia, we define "cause it to be set for
hearing" to mean the petitioner must provide an order for hearing to the district court to
execute, setting the time and place of the hearing on the petition.
Appeal from Johnson District Court; MICHAEL P. JOYCE, judge. Opinion filed September 4, 2015.
Affirmed.
John W. Kurtz, of Hubbard & Kurtz, L.L.P., of Kansas City, Missouri, for appellant Jessica K.
Crosslin.
Charles J. Andres, of Olathe, for appellee Christine J. Clare.
Before SCHROEDER, P.J., GREEN, J., and JOHNSON, S.J.
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SCHROEDER, J.: Michael A. Clare and his wife, Deborah Clare, were found in
their Johnson County residence on December 22, 2013, in what the district court found to
be a murder/suicide tragedy with Michael as the shooter. Michael died intestate.
Deborah's daughter, Jessica K. Crosslin, petitioned to open Michael's estate to file a claim
against the estate. The district court found the petition by Crosslin to open Michael's
estate was ineffective because, as a creditor of the estate, she failed to obtain an executed
order for hearing within 6 months of Michael's death. We find the district court correctly
applied the statutory provisions requiring the petitioner to "cause [the petition] to be set
for hearing" by having an order for hearing executed by the district court before the 6-
month nonclaim period expired. See K.S.A. 59-2204. We affirm.
FACTS
Michael's estate became the primary beneficiary of a $250,000 life insurance
policy issued by American Family Life Insurance Company with Michael as the owner.
Deborah was initially listed as the primary beneficiary of the policy with Michael's
children listed as the contingent beneficiaries. Michael had no biological children.
Crosslin initiated the proceedings to open Michael's estate in order to file a wrongful
death tort claim. Christine J. Clare is Michael's sister. Shirley R. Stockton is Michael's
mother and sole heir at law of Michael. Shirley requested Christine act as the
administrator of Michael's intestate estate.
On June 10, 2014, counsel for Crosslin filed a petition to open an estate
proceeding and for issuance of letters of administration for Michael's estate. The
paralegal for John Kurtz, Crosslin's counsel, exchanged emails with the administrative
assistant (AA) at the Johnson County District Court Probate Division, requesting a date
for a hearing on Crosslin's petition. July 21, 2014, was selected as the hearing date, and
the AA advised she would put it on the district court's calendar. The date and time
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selected were added into the district court's electronic docket; however, Crosslin's
counsel never provided an order for hearing to the district court, and no such order was
ever issued. Crosslin published the notice of hearing and the notice to creditors in The
Olathe News. The 6-month deadline for a creditor to timely open an estate as set out in
K.S.A. 59-2239(1) lapsed on June 22, 2014.
On July 3, 2014, Christine, on behalf of her mother, filed a petition for issuance of
letters of administration in the same proceeding because the nonclaim period had expired
on the petition initiated by Crosslin. Her petition included a waiver of notice request and
written objections to the petition filed by Crosslin. Counsel for Christine submitted and
obtained an executed order for hearing setting her petition for hearing on July 21, 2014.
The order for hearing was signed by the district court on July 3, 2014. Crosslin claims the
order for hearing obtained by Christine on July 3, 2014, setting Christine's petition for
hearing on July 21, 2014, cured Crosslin's failure to obtain an executed order by the court
setting Crosslin's petition for hearing.
On July 18, 2014, an order of continuance reflects the unconfirmed hearing (no
order for hearing was executed) for July 21, 2014, on Crosslin's petition was continued
and the hearing on Christine's petition set by an executed order of the district court for
July 21, 2014, was also continued. On August 25, 2014, Christine was issued letters of
administration for Michael's estate through an agreement between Crosslin's attorney and
Christine's attorney. Christine, as administrator of Michael's estate, filed a petition to
determine whether Crosslin's claim against the estate had expired and was barred
pursuant to K.S.A. 59-2239(1). Crosslin objected to the petition and filed a memorandum
trial brief. The matter was set for hearing.
The district court determined the filing date of Christine's petition for
administration of the probate estate—July 3, 2014—was the day the estate proceedings
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commenced. The district court then found that pursuant to K.S.A. 58-709, both Michael
and Deborah were deemed to have legally predeceased the other and, therefore, Deborah
was not considered a surviving spouse. Finally, the district court found:
"[Crosslin] did not cause her petition to be set for a hearing before the 6 month statute of
limitations set forth in K.S.A. 59-2239(1) expired, because she failed to have the Court
enter an Order for Hearing. All claims of [Crosslin] subject to the special statute of
limitation provided for in K.S.A. 59-2239(1) are therefore barred. However, to the extent
that the statute of limitation continues to run on the underlying tort action, claims against
the administrator for non-probate assets are not yet barred under K.S.A. 59-2239(2)."
Crosslin timely appeals.
ANALYSIS
Did the district court err when it found Crosslin did not cause her petition to be set for
hearing before the nonclaim period expired?
Both parties agree Kansas caselaw is clear—K.S.A. 59-2239(1) required Crosslin
to timely petition to open the estate before the expiration of the 6 months after Michael's
death in compliance with K.S.A. 59-2204. K.S.A. 59-2204 required Crosslin complete
two steps—file a petition for the administration of Michael's estate and cause it to be set
for hearing. See In re Estate of Reed, 157 Kan. 602, 142 P.2d 824 (1943); In the Matter
of Estate of M.D. Thompson, 24 Kan. App. 2d 321, 962 P.2d 564, rev. denied 263 Kan.
886 (1997).
Before we discuss what "causing it to be set for hearing" means, we recognize
K.S.A. 59-2239 is a special statute of limitations governing claims against a decedent's
estate. Union Nat'l Bank & Trust Co. v. Estate of Werning, 233 Kan. 671, Syl. ¶ 1, 665
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P.2d 192 (1983). K.S.A. 59-2239 is also referred to as a nonclaims statute that requires an
estate to be opened within 6 months of the decedent's death for a creditor's claim to be
filed against the estate.
The question then becomes: What action by the petitioner constitutes the timely
commencement of a probate action? We must determine the commencement date to
define whether the action was timely commenced within the time allowed by the non-
claims statute, K.S.A. 59-2239. The key here is commencement and when the petitioner
has completed the two steps required by K.S.A. 59-2204 to commence the estate and stop
the nonclaim statute from running. This is similar to the requirement a plaintiff must
comply with in filing a civil lawsuit by having a summons issued and timely served
pursuant to K.S.A. 2014 Supp. 60-203(a) or (b). The nonclaim statute is in place to
require creditors to timely file their claims, and in this particular case, to timely open the
estate proceeding. One cannot just file the petition and make an email request to set a
hearing date. The petitioner must confirm the hearing date pursuant to the probate notice
statutes with an order executed by the district court.
"The primary purpose for K.S.A. 59-2239 is the speedy settlement of the estates in
the interest of creditors, heirs, legatees, and devisees, and to settle titles to real estate. It is
a bar on which parties may rely. [Citation omitted.]" In re Estate of Tracy, 36 Kan. App.
2d 401, 405, 140 P.3d 1045 (2006), disapproved on other grounds by In re Estate of
Strader, 301 Kan. 50, 60, 339 P.3d 769 (2014).
Statutes of limitations are strictly construed based on the language chosen by the
legislature. See In re Estate of Strader, 301 Kan. at 60 (wills must be offered for probate
within the time provided by K.S.A. 59-617).
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At the time of its decision, the district court's analysis reflected that there was no
specific Kansas statute or caselaw defining the phrase causing it to be set for hearing. In
applying the phrase, the district court relied on various other statutes and cases discussing
an order for hearing. The district court concluded K.S.A. 59-2204 and Johnson County
Local Court Probate Rule No. 1 required an order for hearing to be executed by the
district court before the 6-month nonclaim period expired. Johnson County Local Court
Probate Rule No. 1, A.1 states:
"It shall be the duty of the filing attorney (or pro se petitioner) to obtain, at the
time of the filing of the petition, a hearing date for the hearing of the petition filed, and to
provide an 'Order of Hearing' presented to the Court for execution and filing, unless all
appropriate documentation, including the entries of appearance, consents and waivers, are
filed with the petition.
(a) Commencement of any action requires both the filing of the petition and the
obtaining of an 'Order for Hearing' (or equivalent). Just filing the petition will not result
in the matter being scheduled for hearing and may result in substantial prejudice to the
petitioning party." (Emphasis added.)
The district court also held that the local court rule requiring an executed order to set a
petition for hearing did not contradict the plain language of K.S.A. 59-2204.
Interpretation of Statute and Johnson County Local Court Rule
On appeal, Crosslin argues the district court erred when it found that an executed
order for hearing was required to "cause the petition to be set for hearing." Crosslin is
asking this court to find that a request for a hearing by email, not confirmed by an
executed order for hearing by the district court, is sufficient to cause the petition to be set
for hearing. To answer the question presented requires interpretation of a statute and
Johnson County Local Court Rule. Statutory interpretation is a question of law over
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which appellate courts have unlimited review. Cady v. Schroll, 298 Kan. 731, 734, 317
P.3d 90 (2014). Interpretation of a local court rule is a question of law subject to
unlimited review. Rinehart v. Morton Buildings, Inc., 297 Kan. 926, 942, 305 P.3d 622
(2013).
K.S.A. 59-2204 states:
"A probate proceeding may be commenced in the district court by filing a
petition and causing it to be set for hearing. When a petition is filed, the court shall fix the
time and place for the hearing on it. When a petition is filed for the appointment of a
personal representative, the court may appoint the proposed personal representative or
some other suitable person, with or without bond, to conserve the estate until a hearing is
had and a personal representative is appointed." (Emphasis added.)
While we have not found a Kansas case directly addressing the interpretation of
the phrase "causing it to be set for hearing," we have found several Kansas cases that
presuppose an order is required to set a petition for hearing and to stop the time clock
from running. In In re Estate of Dotson, 154 Kan. 562, Syl. ¶ 2, 119 P.2d 518 (1941), the
Kansas Supreme Court, in construing the relationship between G.S. 1939 Supp. 59-2204,
G.S. 1939 Supp. 59-2237, and G.S. 1939 Supp. 59-2239, held:
"One who has a demand against an estate of a decedent must initiate proceedings for its
allowance by filing a petition and causing it to be set for hearing. The order setting the
petition for hearing must be made within nine months after the first notice to creditors of
the appointment of the executor or administrator." (Emphasis added.)
While Dotson is no longer applicable in the creditor demand context, it is still
valid law regarding the procedural requirements for commencing a probate action.
Thompson, 24 Kan. App. 2d at 323. While the Kansas Supreme Court in Dotson did not
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specifically state an order is required, the court said an order setting the petition for
hearing had to be made before the nonclaim period expired. The same, or very similar,
language was used by our Supreme Court in In re Estate of Keenan, 175 Kan. 207, 210,
262 P.2d 835 (1953); In re Estate of Reed, 157 Kan. 602, 612, 142 P.2d 824 (1943); and
In re Estate of Whittelsey, 156 Kan. 157, 131 P.2d 911 (1942) (recognizing a petition
must be timely filed and set for a hearing with reference to an order for hearing).
Since the phrase "causing it to be set for hearing" in K.S.A. 59-2204 is not
statutorily defined, we must apply the rules governing statutory construction in seeking
legislative intent. The most fundamental rule of statutory construction is that the intent of
the legislature governs if that intent can be ascertained. Nationwide Mutual Ins. Co. v.
Briggs, 298 Kan. 873, 875, 317 P.3d 770 (2014). An appellate court must first attempt to
ascertain legislative intent through the statutory language enacted, giving common words
their ordinary meanings. Cady, 298 Kan. at 738. Where there is no ambiguity, the court
need not resort to statutory construction. Only if the statute's language or text is unclear
or ambiguous does the court use canons of construction or legislative history to construe
the legislature's intent. Cady, 298 Kan. at 739.
"When construing statutes to determine legislative intent, appellate courts consider
various provisions within an act in pari materia with a view to reconciling and bringing
those provisions into workable harmony if possible. [Citation omitted.]" Friends of
Bethany Place v. City of Topeka, 297 Kan. 1112, 1123, 307 P.3d 1255 (2013). "[W]e
have a canon of construction that directs us to construe statutes to avoid unreasonable or
absurd results, based on a presumption that the legislature does not intend to enact
meaningless legislation. [Citation omitted.]" Fisher v. DeCarvlho, 298 Kan. 482, 495,
314 P.3d 214 (2013).
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As we consider the legislative intent behind K.S.A. 59-2204, it is our task to
interpret the statute as the legislators intended it to be applied to initiate a probate
proceeding. Our goal is to be faithful to the statute's intent and to carry out its intended
purpose.
The first sentence of K.S.A. 59-2204 begins by stating: "A probate proceeding
may be commenced . . . by filing a petition and causing it to be set for hearing." When we
look at this sentence, it directs what the petitioner must do to initiate a probate action.
The adverbial phrase by filing a petition and causing it to be set for hearing modifies the
verb "commenced." Here, the adverbial phrase tells how the probate proceeding may be
commenced. Clearly, it is not the function of the district court to file a petition and cause
it to be set for hearing. Indeed, that function falls to the petitioner. Moreover, it is the
function of the petitioner to cause the district court to fix the time and place for the
hearing on the petition.
For example, the second sentence of K.S.A. 59-2204 states: "When a petition is
filed, the court shall fix the time and place for the hearing on it." Obviously, one of the
purposes for fixing the date for hearing on a petition is to enable a notice to be given. In
setting the hearing date, the petitioner and the court must consider the other statutes in the
probate code involving notice. The petition cannot be set for hearing without the
involvement of the notice statutes—K.S.A. 59-709, 59-2208, 59-2209, or 2014 Supp. 59-
2222(a)—as the particular probate action may require. The court then determines whether
notice to all interested parties, heirs, or creditors, known and unknown (Interested
Parties) will be accomplished by publication or as the court may otherwise direct. The
phrase in K.S.A. 59-2204, "causing it to be set for hearing," cannot be read out of context
or on its own. In construing a statute, a court may properly look to the meaning in a
pattern of related statutes. See Van Beeck v. Sabine Towing Co., 300 U.S. 342, 351, 57 S.
Ct. 452, 81 L. Ed. 685 (1937). Moreover, the plain meaning of the language at issue is
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strengthened by an overall reading of the statutory scheme. Jantz v. Brewer, 30 S.W.3d
915, 918 (Mo. App. S.D. 2000).
When publication is required, as it was in this case, the first of three publication
notices must be completed within 10 days of the order by the district court fixing a
hearing date that is set between the 7th and 14th day after the last publication notice. The
legislature used the word "court" in K.S.A. 59-2204 to set out the district court's required
involvement in working with the petitioner to issue an order defining the type of notice
required to open the estate and thereby establish the date the action was commenced.
As we have previously mentioned, we must read K.S.A. 59-2204 in conjunction
with the other provisions of the probate code in order to determine legislative intent. The
following statutes require an order of the district court and must be read in conjunction
with K.S.A. 59-2204:
• K.S.A. 59-709(a): "Every petitioner who files a petition for administration
or probate of a will shall give notice thereof to creditors, pursuant to an
order of the court, and within 10 days after such filing." (Emphasis added.)
• K.S.A. 59-2208: "When notice of any probate proceedings is required by
law or deemed necessary by the court and the manner of giving it is not
directed by law, the court shall order notice to be given to all persons
interested." (Emphasis added.)
• K.S.A. 59-2209: "The first publication shall be made within 10 days after
the order fixing the time and place of the hearing." (Emphasis added.)
• K.S.A. 2014 Supp. 59-2222(a): "Notice of the hearing shall be given
pursuant to K.S.A. 59-2209, and amendments thereto, unless the court
makes an order to the contrary. If notice is by order of the court not
required to be given pursuant to K.S.A. 59-2209, and amendments thereto,
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the court shall order notice of the hearing to be given, unless waived, in
such manner as the court directs." (Emphasis added.)
While this is not a definitive list of the entire probate code, it does reflect the primary
statutes requiring the petitioner obtain an order for hearing from the district court. The
order generally reflects what action(s) the petitioner is requesting to happen in the
probate proceedings and how all Interested Parties shall be notified of the pending
action(s).
There is no definition for "order" within the probate code, so we turn to Black's
Law Dictionary 1270 (10th ed. 2014): "A written direction or command delivered by a
government official, esp. a court or judge." If the legislature did not intend for an order to
cause the petition to be set for hearing under K.S.A. 59-2204, it would not have linked
the timing of the notice in K.S.A. 59-2209 or K.S.A. 59-709 to the date the order was
executed. The other relevant notice statutes, K.S.A. 59-2208 and K.S.A. 2014 Supp. 59-
2222(a), both require the district court to make an order to determine the type of notice to
be provided to all Interested Parties unless waived in writing by all parties. If all heirs,
devisees, and legatees enter their appearance and waive notice, the waiver pursuant to
K.S.A. 59-2223 must be approved by the court, and that again would require the court to
find by an order pursuant to K.S.A. 59-2222(a) that notice has been waived and no notice
is required. Without an executed order, there is nothing in the record to reflect the various
statutes' required time constraints for notice to all Interested Parties have been followed,
providing the probate court jurisdiction to consider the merits of the petition based on
timely and verifiable notice. The legislature clearly intended an order for hearing be
obtained by the petitioner, otherwise it would not have used the term "order" in every
notice statute and specifically required the district court to determine the type of notice to
be provided to all Interested Parties through that order.
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Some might argue that commencing an action under K.S.A. 59-2204 simply
requires the filing of a petition. With that general proposition, we cannot agree. It is clear
from a reading of all the notice statutes, it is the duty of the district court to fix the time
and place of the hearing. As the court in Dotson said: "The simple filing of the petition is
not the beginning of a probate proceeding, nor does it stop a statute of limitations from
running." 154 Kan. at 569. The duty is upon the petitioner to set the petition for hearing,
and that is done by an order. 154 Kan. 562, Syl. ¶ 2.
Additionally, we acknowledge the Kansas Judicial Probate Forms, 3d ed. with
2012 supplements, which is a general reference guide for practitioners in Kansas for
probate-related issues. Review of the probate forms book reflects an order is to be
obtained from the court at the time the petition is filed. Although this is not binding
precedent, it does support our determination that an executed order must be obtained
setting the petition for hearing. Also supporting our determination is the Kansas Bar
Association Handbook entitled: Kansas Probate & Trust Administration After Death (7th
ed. 2008). It refers practitioners to the Kansas Judicial Probate Forms book for relevant
forms to be used in probate proceedings.
Email Exchange with the Administrative Assistant
Crosslin acknowledges the petition had to be set for hearing; however, she argues
the email exchange with the AA was the equivalent of an order for hearing when the AA
placed a hearing date on the Johnson County District Court's calendar. As additional
support for this argument, Crosslin claims the judge of the probate court can delegate the
authority to set hearings pursuant to Johnson County Local Court Probate Rule No. 1,
A.3 to his or her AA. Johnson County Local Court Probate Rule No. 1, A.3 states: "Any
order that is for the purpose of scheduling only may be executed by the Court's AA and
shall have the same effect as though signed by the Judge in person." Crosslin is correct
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when stating the local court rule provides that the district court judge may allow his or
her AA to set hearings, but Crosslin neglects to acknowledge the local court rule also
required that an order be provided and executed to set the hearing date. Crosslin admits
an order for hearing was never provided before the nonclaim period expired.
Our review of Johnson County Local Court Probate Rule No. 1, A.3 reflects it is
for scheduling purposes only. An order for hearing in a probate action generally does
more than just schedule a hearing when opening an estate proceeding; it also establishes
how notice of the hearing shall be provided to all Interested Parties. Because no order for
hearing was submitted to the AA to be executed in this case, we will leave for another
day to determine whether Johnson County Local Court Rule No. 1, A.3 is a proper
delegation of the district court judge's duty.
Crosslin's argument that her emails with the judge's AA were the equivalent of an
order for hearing is not persuasive. An email exchange is not an order of the district
court. An order of hearing in a probate proceeding is an executed order by the district
court which triggers a hearing date and generally establishes how notice will be provided
to all Interested Parties. The emails were a private conversation discussing available
hearing dates that needed to be confirmed by an order for hearing, as the court in Dotson
said:
"There is a similar provision in our code of civil procedure, G.S.1935, 60-301, which in
effect recites that a civil action may be commenced by the filing of a petition and causing
a summons to be issued thereon. No one would contend that the simple filing of a petition
in the district court, without causing a summons to be issued thereon, would be the
commencement of an action or would stop the statute of limitations from running. We
think the same reasoning applies here. The simple filing of the petition is not the
beginning of a probate proceeding, nor does it stop a statute of limitations from running.
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"Appellant points out that it is the duty of the court to fix the time and place of
hearing. Certainly it is the function of the court to fix the time of hearing, but the duty is
imposed upon the claimant to cause that to be done." 154 Kan. at 568-69.
Dotson confirms that simply filing a petition is insufficient to open an estate as the
petition must be set for hearing. Causing a petition to be set for hearing requires the
petitioner provide an order for hearing to the district court to execute, reflecting the
hearing date the court has set, not a private string of emails asking for a hearing date.
As our Supreme Court said in the past, probate proceedings are adversarial. See In
re Estate of Reed, 157 Kan. at 612. The adversarial process cannot proceed without clear
orders executed by the district court reflecting the date the petition is set for hearing and
how all Interested Parties are to be notified. The district court did not err in finding that
the AA's private emails with Crosslin and her agreement to put the hearing on the district
court's electronic docket was insufficient to cause the petition to be set for hearing
without an executed order for hearing signed by the district court.
Conflict Between Local Court Rule and Statute
Next, Crosslin argues the district court erred when it relied in part on the Johnson
County Local Probate Rule No. 1, A.1 because the rule is inconsistent with K.S.A. 59-
2204. Crosslin suggests K.S.A. 59-2204 does not require an order for hearing, while also
claiming the Johnson County rule does require a separate order for hearing, thereby
creating a conflict between rule and statute. In support of her argument, Crosslin relies on
Nugyen v. Esplund, 34 Kan. App. 2d 32, 33, 114 P.3d 175 (2005). In Esplund, the panel
found the language in the statute providing for the issuance of a bench warrant did not
require an affidavit or other verification as the local court rule required; therefore, the
statute controls.
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Here, the language in Johnson County Local Court Probate Rule No. 1, A.1 did
not conflict with the statute. In fact, K.S.A. 59-2204 also required Crosslin to cause the
petition to be set for a hearing. In opening the estate and setting the matter for hearing,
Crosslin had to comply with either K.S.A. 59-2208 or K.S.A. 59-2209—both statutes
required an order be issued by the district court establishing the notice to be provided to
all Interested Parties of the pending petition and hearing date. The local court rule
reinforced the procedure Crosslin needed to follow to open the estate. The local court rule
was clear and concise and was not inconsistent with the statute when it required an order
for hearing be obtained. The execution of an order for hearing is not difficult and clearly
establishes the petitioner has met his or her obligation by causing the petition to be set for
hearing in compliance with K.S.A. 59-2204.
We Consider K.S.A. 59-2201
We would be remiss in not discussing the interplay of K.S.A. 59-2201 in all of this
as we read the statute in pari materia with K.S.A. 59-709(a), K.S.A. 59-2204, K.S.A. 59-
2208, K.S.A. 59-2209, and K.S.A. 2014 Supp. 59-2222(a). Crosslin argues application of
K.S.A. 59-2201 to these facts saves her failure to obtain a timely executed order for
hearing from the district court. K.S.A. 59-2201 states:
"Every application in a probate proceeding, unless made during a hearing or trial,
shall be by petition signed and verified by or on behalf of the petitioner. No defect in
form shall impair substantial rights; and no defect in the statement of jurisdictional facts
actually existing shall invalidate any proceedings."
While we understand small errors or defects should not defeat a timely petition to
open an estate proceeding, the failure here is not small. The error goes to the heart of the
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procedure in opening an estate. If the requirements of K.S.A. 59-709(a), K.S.A. 59-2204,
K.S.A. 59-2208, K.S.A. 59-2209, and K.S.A. 2014 Supp. 59-2222(a) are not followed,
then there is no way to verify compliance with the statutory provisions to commence an
estate proceeding. Probate proceedings, under the probate code originally enacted in 1939
with a few amendments through the years, requires a paper trail to verify the proper
procedure has been followed to open the estate. This situation is similar to filing a
petition in a civil action and not having the summons issued until after the statute of
limitations has run. A civil action, without a timely summons being issued and served
pursuant to K.S.A. 60-203(a) or (b), is not commenced until service is obtained. See
Fisher, 298 Kan. at 493. Likewise, a probate action is not commenced until an executed
order for hearing is obtained reflecting the petition has been set for hearing.
The district court did not err in relying upon K.S.A. 59-2204 and the Johnson
County Local Court Probate Rules in finding Crosslin failed to timely petition for the
opening of Michael's estate when no signed executed order was obtained prior to June 22,
2014. Finally, Crosslin cannot rely on the order Christine obtained on July 3, 2014,
setting Christine's petition for hearing, as that order was executed after the nonclaim
period on Crosslin's petition had expired. Under these facts, K.S.A. 59-2201 cannot be
used to save Crosslin's failure to obtain an executed order for hearing before the nonclaim
period expired.
Request for Attorney Fees
In her brief on appeal, Christine requested attorney fees pursuant to Supreme
Court Rule 7.07(c); however, Christine has failed to comply with the requirements of
Supreme Court Rule 7.07(b)(2) and 7.07(c) (2014 Kan. Ct. R. Annot. 70). Supreme Court
Rule 7.07(b)(2) states:
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"A motion for attorney fees on appeal must be made under Rule 5.01 and be filed not
later than 14 days after oral argument. If oral argument is waived, the motion must be
filed not later than 14 days after the day argument is waived or the date of the letter
assigning the case to a non-argument calendar, whichever is later. An affidavit must be
attached to the motion specifying:
(A) the nature and extent of the services rendered;
(B) the time expended on the appeal; and
(C) the factors considered in determining the reasonableness of the fee." (2014
Kan. Ct. R. Annot. 71).
Here, Christine did not file her motion for attorney fees within 14 days of the oral
argument, and the inclusion of her request in her brief is insufficient to preserve the issue.
Failure to follow Supreme Court Rule 7.07(b) and (c) results in the denial of her request
for attorney fees. Snider v. American Family Mutual Ins. Co., 297 Kan. 157, 167, 298
P.3d 1120 (2013).
CONCLUSION
Crosslin timely filed a petition to open the estate but failed to obtain an executed
order for hearing before the nonclaim period expired. The order for hearing is a crucial
step in the process of opening an estate. We acknowledge this decision is based on a strict
reading of our probate code. Our Supreme Court has required that statutes be read and
applied giving common words their ordinary meaning. See Cady, 298 Kan. at 738. As
previously stated, the probate process is adversarial and is designed to give reasonable
notice to all Interested Parties as the district court orders. We must remember we are
dealing with a probate code designed, drafted, and predominately passed in 1939—long
before communication by email was available. The advent of new communication tools
does not change a petitioner's obligation to comply with the existing statutes of the
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probate code. Our obligation is to apply the probate code as drafted, and if it needs to be
updated, that is a job best left to the legislature. See In re Marriage of Hall, 295 Kan.
776, 784, 286 P.3d 210 (2012).
The time frames within the probate code are tight and create very short statutes of
limitations for Interested Parties to comply with. Like all statutes of limitation, the failure
to comply with the time limit and the required procedure can be harsh. Crosslin's failure
to obtain an executed order before June 22, 2014, setting the petition for hearing pursuant
to K.S.A. 59-2208 or K.S.A. 59-2209, reflects the estate proceeding was not timely
opened within the 6-month deadline required by K.S.A. 59-2239(1). The district court
correctly found the nonclaim period had expired. Christine's request for attorney fees is
denied for failure to comply with Supreme Court Rule 7.07(b)(2) and 7.07(c).
Affirmed.
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