In Re Estate of Standley , 2006 Mo. App. LEXIS 1662 ( 2006 )

ROBERT S. BARNEY, Judge.

This is an appeal brought by Charles K. Standley (“Appellant”) arising from the probate court’s “Judgment With Findings of Fact and Conclusions of Law,” relating to the estate of Elta B. Standley (“Decedent”). There the probate court imposed two equitable liens against the assets of Decedent’s estate (“the Estate”), one in favor of Respondent Doris J. Standley (“Doris”), and one in favor of Respondent Michael D. Standley (“Michael”) (collectively “Respondents”). Additionally, the probate court denied Appellant’s request to set aside its Letters Testamentary which named Doris as personal representative of the Estate.¹ We dismiss Appellant’s untimely appeal.

The record reveals Decedent died testate on June 21, 2003. Decedent’s will was presented for probate on August 8, 2003, accompanied by an affidavit for small estate filed by Doris.

On September 29, 2003, Appellant filed a “Petition for Accounting” against Respondents based on actions purportedly taken by them in their capacity as Decedent’s attorneys-in-fact under a durable power of attorney granted them on February 29, 1996. In its interlocutory judgment, the probate court determined, inter alia, that Appellant was entitled to receive certain statements of accounts from each Respondent.

The record further shows that discovery commenced among the parties. At some point in time thereafter, Doris discovered a $25,000.00 bond which was payable to Decedent. As a result of this discovery, Doris filed an “Application for Letters Testamentary” on March 30, 2005, in which she explained that “[sjince the [filing of the] small estate affidavit, additional assets have been discovered that have caused the estate of [Decedent] to exceed the limits of a small estate.” The probate court then issued letters testamentary to Doris on March 31, 2005.

On July 15, 2005, Doris filed a claim against the Estate in the amount of $13,713.87 for “attorney fees and expenses incurred in making an accounting....” Thereafter, on August 18, 2005, Michael filed a “Petition to Impose Lien” upon the Estate in the amount of $27,886.45 pursuant to a provision in the durable power of attorney that stated that if an accounting was required by the attomeys-in-fact, reimbursement would be made to them out of “property under their control,” and if insufficient, then from the Estate by the personal representative.

On September 15, 2005, Appellant filed a motion to set aside the letters testamentary.²

A hearing was held relating to the aforementioned matters on October 18, 2005. The probate court thereafter entered its “Judgment with Findings of Fact and Conclusions of Law” on December 9, 2005, and sustained Respondents’ separate petitions for the imposition of equitable liens against the Estate.³ The probate court also determined the letters testamentary issued to Doris, and dated March 31, 2005, were properly issued.

Appellant filed his notice of appeal on January 3, 2006. It is our determination that Appellant’s appeal was not timely filed.

“ ‘[A]ppeals are purely statutory, and must be taken within the time and in the manner provided by statute.’ ” In re Estate of Forhan, 149 S.W.3d 537, 541 (Mo.App.2004) (quoting Lucitt v. Toohey’s Estate, 338 Mo. 343, 89 S.W.2d 662, 664 (1935)). “ ‘Courts may not enlarge the statutory period within which an appeal may be taken....’” Id. (quoting In re Interest of T.G., 455 S.W.2d 3, 9 (Mo.App. 1970)).

Section 472.180 provides that “[a]ll appeals shall be taken within the time prescribed by the rules of. civil procedure relating to appeals.” Section 472.210 of the Probate Code provides that, “[ajppeals shall be taken in accordance with the rules of civil procedure relating to appeals.”⁴ As such, we turn to Rule 81.04(a):

[wjhen an appeal is permitted by law from a trial court, a party may appeal from a judgment or order by filing with the clerk of the trial court a notice of appeal. No such appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final.

(Emphasis added).

Generally, orders of the probate court are interlocutory and are not subject to appeal until final disposition of the matters before the court. In re Estate of Couch, 920 S.W.2d 165, 168 (Mo.App.1996); see § 472.150.⁵ However, if an order falls within the enumerated exceptions set forth in section 472.160.1,⁶ as in the present matter, it is deemed final for purposes of appeal, and any interested and aggrieved person has the right to appeal.⁷ In re Estate of Burg, 68 S.W.3d at 545; see State ex rel. Estate of Seiser v. Lasky, 565 S.W.2d 792, 794 (Mo.App.1978).⁸

“Section 472.160 creates an expedited right to appeal certain probate orders which otherwise would be interlocutory and unappealable.” Forhan, 149 S.W.3d at 541. “Such expedited appeals serve the salutary purpose of allowing ‘many matters of importance to be resolved while the estate is open, and prevents one complex appeal from all matters that occurred during the administration of the estate.’ ” Id. at 541-42 (quoting In re Estate of Erwin, 611 S.W.2d 564, 567 (Mo. App.1981)). It follows that “[bjecause an appeal from one of the orders listed in [section] 472.160 is permitted while the estate is still open, such orders are immediately appealable upon entry.” Id. at 542.

“The orders listed in [section 472.160] are ready for appeal when made.” Kemp v. Balboa, 959 S.W.2d 116, 118 (Mo.App. 1997).⁹

In the present matter, the probate court’s “Judgment” was made final when it was entered on December 9, 2005. Per Rule 81.04(a), Appellant then had 10 days in which to file his notice of appeal; however, he did not do so until January 3, 2006. Accordingly, Appellant’s appeal was untimely. “In the absence of a timely-filed notice of appeal, we have no appellate jurisdiction.” Forhan, 149 S.W.3d at 542. “Therefore, this appeal must be dismissed.” Id.

PARRISH, J., Concurs. GARRISON, J., Concurs in principal opinion and concurs in concurring opinion. BATES, C.J./P.J., Concurs in separate opinion. SHRUM, J., Dissents in separate opinion. RAHMEYER, P.J., Concurs in dissenting opinion. LYNCH, J., Recused.

1 . Decedent's “Last Will and Testament” provided that the Estate be split equally among her three sons: Appellant, Michael, and James D. Standley (“James”). We note that Doris is the wife of James.

This Court refers to the parties by their first names for the sake of clarity; we mean no disrespect.

2 . Appellant's motion was entitled "Motion To Set Aside Letters of Administration;” however, in the body of the motion, he is complaining of the probate court's March 31, 2005, issuance of Letters Testamentary as well as the appointment of Doris as personal representative of the Estate.

3 . The probate court found that neither Respondent held or controlled any property in their capacity as attorney-in-fact for Decedent under the durable power of attorney. The probate court also specifically concluded that the "actions taken by Doris in response to the Petition for Accounting, including the trial thereof, were not expenses of administration in connection with administration of Decedent's estate."

4 . All rule references are to Missouri Court Rules (2005), and all statutory references are to RSMo 2000.

5 . Section 472.150 states in pertinent part:

[f]or good cause, before the expiration of the period allowed for appeal after the order of final distribution of the administration of the estate ... the court may vacate or modify its orders, judgments and decrees, or grant a rehearing therein, except that no such power shall exist as to any orders, judgments or decrees from which an appeal has been taken, prior to a final disposition thereof on such appeal, or to set aside the probate of a will after the time allowed for contest thereof.

6 . Section 472.160.1 sets out, in part pertinent to this appeal, that

[a]ny interested person aggrieved thereby may appeal to the appropriate appellate court from the order, judgment or decree of the probate division of the circuit court in any of the following cases:

(1) On the allowance of any claim against an estate exceeding one hundred dollars;

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(3) On all apportionment among creditors, legatees or distributees;

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(9) On all orders revoking letters testamentary or of administration;

(10) On orders making allowances for the expenses of administration;

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(13) On all orders denying any of the foregoing requested actions [.]

One caveat needs to be inserted at this juncture. In our review of this appeal, we do not address the merits of the claims raised by the respective parties below.

7 . "If a party chooses not to exercise this right [to appeal], the particular matter may be appealed following final settlement or other judicial action fully and finally disposing of the proceeding.” In re Estate of Burg, 68 S.W.3d 543, 545 (Mo.App.2001); see also § 472.150.

8 . The fact that the probate court may have denominated its determination as a "judgment” does not change our analysis. It is clear that pursuant to section 472.160 the probate court's determination here constituted either an "interlocutory judgment” or an "order.”

9 . We note that in In re Estate of Desterbecque, 800 S.W.2d 142, 144 (Mo.App.1990), the probate court entered separate orders to sell personal property and real property belonging to the decedent’s estate. The Desterbecque appellant then filed his notice of appeal from the probate court’s order to sell personal property 42 days after the order to sell had been entered. Id. at 145. He also filed his notice of appeal from the order authorizing the sale of real property 28 days after the latter order was entered. Id. at 145.

Thereafter, the personal representative of the decedent's estate filed a motion to dismiss both of appellant’s appeals on the basis that "each notice of appeal was not timely filed.” Id. at 144. The personal representative argued that "each order in question was final when entered and neither notice was filed within 10 days thereafter as required by Rule 81.04(a).” Id. The personal representative also contended the notice to appeal the order to sell personal property "was late because it was filed 42 days after the order ... was entered.” Desterbecque, 800 S.W.2d at 145. The personal representative, likewise, asserted the notice of appeal from the order to sell real property was "premature because it was filed 28 days after the order to sell real property had been entered.” Id. at 144.

On appeal this Court disagreed with the personal representative’s argument that the appellant had only 10 days after entry of the order in which to file his notice of appeal. Id. at 145-47. We opined that while “neither order was entered in a proceeding defined as an adversary proceeding in [section] 472.140, or a proceeding encompassed by [section] 472.141.3 so as to invoke the application of Rule 81.05,” nevertheless, “this does not establish that the finality of the orders is not determined by Rule 81.05.” Id. at 146. Continuing, the opinion noted that "the directly controlling statutes prescribe that appeals shall be taken within the time, [section] 472.180, and in accordance with the Rules, [section] 472.210.” Id. Additionally, the opinion set out that while the foregoing statutes do not expressly prescribe when an order is final, it is logical to conclude "finality is to be determined by the Rules referred to in those statutes, which include Rule 81.05 prescribing when an order becomes final.” Desterb-ecque, 800 S.W.2d at 146. This Court then determined that both of appellant's appeals had been filed in a timely fashion per the provisions of Rule 81.05. Id. at 146-47.

We are now being called upon to revisit this issue, particularly in light of subsequent holdings of various districts of the Missouri Court of Appeals which determined, sub stlento, that Rule 81.05 was not implicated when ascertaining when an order or judgment issued pursuant to section 472.160 was final for purposes of appeal, during the course of the administration of a decedent’s estate. See Forhan, 149 S.W.3d at 542; In re Estate of Burg, 68 S.W.3d at 545; Kemp, 959 S.W.2d at 118. Upon re-examination, this Court determines that its prior holding in Desterbecque was incorrect in its application of Rule 81.05 to that matter.

We do not quarrel with the observation in Desterbecque that Rule 81.05 applies in an adversary proceeding pursuant to section 472.140. Desterbecque, 800 S.W.2d at 146. However, we note that "[s]ection 472.160 creates an expedited right to appeal certain probate orders which otherwise would be interlocutory and unappealable.” Forhan, 149 S.W.3d at 541. "Orders of the probate court are interlocutory until approval of the final settlement.” Couch, 920 S.W.2d at 167. "Although many of the probate court’s orders are interlocutory and not subject to appeal until final disposition, [sjection 472.160 ... provides a list of exceptions.” Id. at 168. "While this statute allows a party to appeal a probate order and thereby make it a final disposition, appeal is not mandatory.” Id. "Because an appeal from one of the orders listed in [section] 472.160 is permitted while the estate is still open, such orders are immediately appealable upon entry.” Forhan, 149 S.W.3d at 542; see also Kemp, 959 S.W.2d at 118 (holding that "[t]he orders listed in [section 472.160] are ready for appeal when made”).

The issue in Desterbecque was related to the finality of two orders, which were appealable pursuant to sections 472.160(5) and 472.160(6) while the estate was still open. Such orders were "immediately appealable upon entry.” Forhan, 149 S.W.3d at 542; Kemp, 959 S.W.2d at 118. Accordingly, the Desterbecque court should have found that under Rule 81.04(a) and section 472.160 the appellant's notice of appeal was not timely filed and the appeal should have been dismissed. To the extent holding otherwise, Desterbecque is hereby overruled.