Tulsa Professional Collection Services, Inc. v. Pope , 1986 Okla. LEXIS 190 ( 1986 )

LAVENDER, Justice:

I.

Appellant, Tulsa Professional Collection Services, Inc., was assigned a debt owed to St. John Medical Center. This debt had arisen from the expenses of the last illness of H. Everett Pope, Jr. Appellant initiated the current action by the filing of an application for an order compelling the payment of the expenses of the last illness of H. Everett Pope, Jr. The following facts were stipulated to by the parties in conjunction with the trial court’s ruling on the application:

1. H. Everett Pope, Jr. (“decedent”) was admitted to St. John Medical Center (“hospital”) in Tulsa on 23 November 1978. He remained in the hospital until his death on 2 April 1979.

2. The expenses of decedent’s hospital stay were in excess of $142,000.00. Decedent’s insurer made some payments to hospital, leaving a net balance due of $14,657.55. The parties dispute the amount of the net balance due attributable to decedent’s last illness.

3. Decedent’s will was admitted to probate on 16 July 1979.

4. The qualified personal representative of decedent’s estate published notice to creditors on 17 July 1979 and 24 July 1979.

5. No timely creditor’s claim was presented to the personal representative within the applicable statutory period of 4 months [sic]. The parties dispute whether a creditor’s claim was ever presented to the personal representative, but if presented, such claim was not approved. No suit to compel the personal representative to approve the claim has been filed.

6. Assignee filed an “Application for Order Compelling Payment of Expenses of Last Illness” on 17 October 1983. It was set for hearing on 10 November 1983. Upon the above stipulations of fact, briefs were scheduled to be submitted, and the matter was taken under advisement by the Court.

The trial court found that appellant’s failure to file a claim for the debt within the time noted in appellee’s publication of notice to creditors of the estate of H. Everett Pope, Jr., barred the assertion of the claim. The trial court denied appellant’s application and this appeal ensued.

On appeal, as in the trial court, this dispute was characterized as a question of statutory interpretation. Appellee relied upon the general chapter in the probate code governing claims against the estate; specifically 58 O.S.1971 § 331, which provided in pertinent part:

Every executor or administrator must, immediately after his appointment, give notice to the creditors of the deceased, requiring all persons having claims against said deceased to present the same, with the necessary vouchers, to such executor or administrator, at the place of his residence or business, to be specified in the notice, within two (2) months from the date of the first publication of said notice; such notice must be published in some newspaper in said county once each week for two (2) consecutive weeks....

and 58 O.S.1971 § 333, which provided in pertinent part:

If a claim arising upon a contract heretofore made, be not presented within the time limited in the notice, it is barred forever, ....

Appellant, on the other hand, relied on the subchapter of the probate code governing payments of the debts of the estate. Appellant argued that 58 O.S.1971 § 594 dispensed with the requirement that a claim be filed in connection with the expenses of the last illness. Section 594 provides:

The executor or administrator, as soon as he has sufficient funds in his hands, must pay the funeral expenses, and the expenses of the last sickness, and the allowance made to the family of the decedent. He may retain in his hands the necessary expenses of administration, but he is not obliged to pay any other debt or any legacy until, as prescribed in this chapter, the payment has been ordered by the court.

Both appellant and appellee argued authorities from other jurisdictions concerning the construction of statutes similar to section 594. Some authorities had found such a statute to relieve the necessity of filing a claim.¹ Appellee’s authority had found that failure to timely file a claim had resulted in the claim being barred despite the presence of a statute similar to section 594.² Appellee also cited from this Court’s statements in State ex rel. Central State Griffin Memorial Hospital v. Reed,³ to the effect that:

The purpose of the nonclaim statute [58 O.S.1971 § 333] is to facilitate the handling and closing of estates. The legislature has considered the importance of this question in its amendment of the statute reducing the period of time within which the claim may be filed from four months to two months. Clearly this is an expression of the legislative concern for the expediting and disposing of administration of estates without delay.

The trial court concluded that a construction of section 594 which would have the effect of allowing certain claims to be maintained outside the time limits of the nonclaim provisions would be contrary to the legislative intent behind those provisions as set forth in Central State Griffin Memorial Hospital. On appeal, the Court of Appeals, Division IV, affirmed the trial court’s ruling.

In reviewing the decisions of the courts below we find the reasoning applied to this question of law to be correct. In the case of Rogers v. Oklahoma Tax Commission,⁴ we stated in Court’s syllabus:

In the construction of statutes, harmony, not confusion, is to be sought. The true rule is that when two acts or parts of acts are reasonably susceptible of a construction that will give effect to both and the words of each, without violence to either, it should be adopted in preference to one which, though reasonable, leads to the conclusion that there is a conflict.

As properly noted by the Court of Appeals, the statutory framework of 58 O.S.1971 §§ 331 through 354 constitutes a system of safeguards against invalid and improper claims against an estate, as well as a system designed to expedite the administration of these estates. To find that section 594 would allow some claims to be maintained outside this system would directly conflict with the clear intent of these statutes. It is, moreover, possible to read the cited provisions in harmony. Section 594 provides that the personal representative of the estate must pay the expenses of the last illness as soon as funds are available when a proper claim⁵ has been presented therefore.

II.

Following the Court of Appeals’ affirmance of the trial court’s decision in this case, appellant petitioned that court for rehearing. In its petition for rehearing, appellant raised, for the first time, a due process argument based on an alleged failure to give actual notice of probate proceedings and of the necessity to file claims. Appellant asserted that appellee knew of the existence of its claim at the time notice was published pursuant to 58 O.S.1971 § 331. Appellant then argued that recent decisions of this Court⁶ and other courts⁷ required that actual notice be given under these circumstances. Appellant argued that to apply the bar of the nonclaims statute in the absence of actual notice to a known creditor would deprive that known creditor of due process.

In a supplemental opinion on rehearing the Court of Appeals rejected this argument and denied rehearing. In the supplemental opinion it was stated that the argument was procedurally defective as it was initially raised in the petition for rehearing. The Court of Appeals then dismissed the argument on the ground that there was no evidence to show that appellant did not have actual notice of the probate proceedings.

We first address the Court of Appeals’ assertion that the question of due process is procedurally inappropriate for consideration. The question of adequacy of notice goes to the jurisdiction of the court.⁸ A matter involving a question of jurisdiction should be considered even if submitted initially in a petition for rehearing.⁹

The Court of Appeals’ disposition of appellant’s argument on the grounds that there was no evidence to support a finding that appellant did not have actual notice is also erroneous. We have previously noted that the burden of affording proper notice rests on the party whose responsibility it is to give that notice.¹⁰ And, since the operation of the nonclaims provisions result in the forfeiture of what might otherwise be meritorious claims, the burden of pleading and proof regarding compliance with the provisions properly rests on one claiming the benefit of those provisions.¹¹

The question of the notice required under 58 O.S.1971 § 331 has not been previously addressed by this Court. However, the question of the sufficiency of notice required to meet due process requirements in the context of the operation of nonclaims statutes has been addressed in a number of jurisdictions. Examining the relation of the nonclaims statutes to the line of cases originating with Mullane v. Central Hanover Bank and Trust Co.,¹² and culminating most recently in Mennonite Board of Missions v. Adams,¹³ the courts have clearly held that the reasoning behind those cases was not applicable to the operation of the nonclaims statutes.¹⁴ Most recently, the Supreme Court of Missouri, in addressing the question of the applicability of due process requirements set forth in the United States Supreme Court cases following Mullane, stated:¹⁵

These cases make it clear that when the rights or interests of a person are sought to be affected by judicial or quasi-judicial decree, due process requires that the person be given notice reasonably calculated to inform that person of the pending proceeding and an opportunity to appear and object. However, we do not believe this doctrine requiring more notice than that afforded by publication should be applied to notice under non-claim statutes. The function served by notice is different, as is the nature of the right being affected. In Mullane, and the cases following it, the person to be notified was, in effect, made an actual party to the litigation by the notice, and the judgment of the court operated directly on that person’s property. Notice under a nonclaim statute does not make a creditor a party to the proceeding; it merely notifies him that he may become one if he wishes.

Other state courts have summarily dismissed the notion that Mullane is applicable in the context of notice to creditors in probate proceedings. In two recent cases, state appellate courts have applied a more exhaustive analysis to deny application of Mullane to their nonclaim statutes. See In re Estate of Fessler, 100 Wis.2d 437, 302 N.W.2d 414 (1981); Gano Farms, Inc. v. Estate of Kleweno, 2 Kan.App.2d 506, 582 P.2d 742 (Kan.App.1978). The Washington Supreme Court, faced with the same due process contention stated:

In support of its contention that [the nonclaim statute] does not accord due process of law in that it goes no further than to require publication of notice to creditors in a newspaper, appellant cites Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865. That case has no application to such a statute as [ours]. Its doctrine was applied to a case where property rights were being brought before a court for adjudication such as those of beneficiaries under trusts, and where the addresses of such beneficiaries were known to the trustee. The basis of the decision is that notice by publication alone is not sufficient to accord due process under such circumstances.

Appellant is the victim of its own fault and nonaction by its failure to comply with a mandatory statute of nonclaim for which the courts can give it no relief. (Emphasis ours).

New York Merchandise Co. v. Stout, 43 Wash.2d 825, 264 P.2d 863, 864 (1953).

We agree with this distinction and believe that the nonclaim statute, and its potential for barring a creditor’s claim,

does not constitute an adjudicatory proceeding. The due process requirements of Múlleme are not applicable to these probate proceedings. Section 473.360 is a self-executing statute of limitations. See Rabin v. Krogsdale, 346 S.W.2d 58 (Mo.1961); Clark v. Organ, 329 S.W.2d 670 (Mo. banc 1959). The bar created by operation of a statute of limitations operates independently of any adjudicatory process. It is a legislative expression of policy that prohibits litigants from raising claims after the expiration of a given period of time. The passage of time itself destroys the right and remedy of the potential claimant. See In re Estate of Fessler, supra, 302 N.W.2d at 420. (footnote omitted)

The Oklahoma probate nonclaim statute, 58 O.S.1971 § 333, like the statutes under consideration in the Missouri case and the other cases cited, acts to cut off potential claims against the decedent’s estate by the passage of time. It is the giving of notice as required by 58 O.S.1971 § 331, which starts the time period running for the operation of the nonclaims statute.¹⁶ Since the action of the statute upon the potential claims is nonadjudicatory in nature, we agree with the reasoning of the cited cases that actual notice of the potential operation of the statute of nonclaims is not required to constitute due process.¹⁷

The parties to this case stipulated that the personal representative of the estate of H. Everett Pope, Jr., published notice as required by 58 O.S.1971 § 331, and that appellant failed to file the required claims within the period initiated by the filing of that notice. Upon these facts the trial court correctly ruled that the claims were barred by the operation of the nonclaims statute.

III.

Opinion and Supplemental Opinion on Rehearing of Court of Appeals, Division IV, entered in this matter are VACATED. Order of the trial court AFFIRMED.

HARGRAVE, ALMA WILSON and SUMMERS, JJ., concur. DOOLIN, V.C.J., dissents in Part I, concurs in Part II. OPALA and KAUGER, JJ., concur in Part I, dissent in Part II. SIMMS, C.J., and HODGES, J., dissent.

1 . The authorities particularly relied upon by appellant were In re Skillman’s Estate, 146 Iowa 601, 125 N.W. 343 (1910); Wolfe v. Knapp, 127 Iowa 479, 103 N.W. 369 (1905); In re Hansen's Estate, 55 Utah 23, 184 P. 197 (1919).

2 . The authority presented by appellee in support of this proposition regarding the construction of section 594 was In re Estate of Bachand, 307 N.W.2d 140 (S.D.1981).

3 . 493 P.2d 815, 818 (Okla.1972).

4 . 263 P.2d 409 (Okla.1952).

5 . See Reed v. Charles Broadway Rouse, Inc., 174 Okl. 522, 50 P.2d 1097 (1935).

6 . Cate v. Archon Oil Co., Inc., 695 P.2d 1352 (Okla.1985).

7 . Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983); Continental Ins. Co. v. Mosely, 100 Nev. 337, 683 P.2d 20 (1985).

8 . Bomford v. Socony Mobil Oil Co., 440 P.2d 713 (Okla.1968).

9 . See Pointer v. Hill, 536 P.2d 358 (Okla.1975); and see also Davis v. Sandlin, 392 P.2d 722 (Okla.1964).

10 . Bomford v. Socony Mobil Oil Co., 440 P.2d at 719.

11 . See Hitt v. J.B. Coghill, Inc. 641 P.2d 211 (Alaska 1982).

12 . 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950).

13 . Supra, note 7.

14 . Brunell Leasing Corp. v. Wilkins, 11 Ariz.App. 165, 462 P.2d 858 (1969); Gano Farms, Inc. v. Estate of Kleweno, 2 Kan.App.2d 506, 582 P.2d 742 (1978); Estate of Busch v. Ferrell-Duncan Clinic, Inc., 700 S.W.2d 86 (Mo.1985); Baker National Bank v. Henderson, 151 Mont. 526, 445 P.2d 574 (1968); New York Merchandise Co., Inc., v. Stout, 43 Wash.2d 825, 264 P.2d 863 (1953); In re Estate of Fessler, 100 Wis.2d 437, 302 N.W.2d 414 (1981).

15 . Estate of Busch v. Ferrell-Duncan Clinic, Inc., 700 S.W.2d at 88, 89.

16 . Inman v. Western National Bank of Ft. Worth, 83 Okl. 126, 200 P. 714 (1921).

17 . Appellant has relied upon the case of Continental Ins. Co. v. Mosely, supra, note 7, to support its argument regarding the sufficiency of notice. The Supreme Court of Missouri, in Estate of Busch, 700 S.W.2d at 87, footnote 2, rejected the reasoning of Continental on grounds we find persuasive and we too reject the assertion that Continental necessitates a contrary result to that reached in this opinion.