In the Estate of Barbara Shaw, Deceased. Stephen Earl Bennett, Personal Representative-Respondent

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Southern District Case Style: In the Estate of Barbara Shaw, Deceased. Stephen Earl Bennett, Personal Representative- Respondent Case Number: 28456 Handdown Date: 11/16/2007 Appeal From: Circuit Court of Pemiscot County, Hon. W. Keith Currie, Associate Circuit Judge Counsel for Appellant: Francis X. Duda, Dennis S. Harms Counsel for Respondent: W. Edward Reeves Opinion Summary: None Citation: Opinion Author: Nancy Steffen Rahmeyer, Judge Opinion Vote: DISMISSED WITH DIRECTIONS. Lynch, C.J., McGhee, Sr.J., concur. Opinion: DISMISSED WITH DIRECTIONS This is an appeal from a judgment granting a Final Settlement Approved, Finding and Decree of Heirship, Succession and Distribution in the estate of Barbara Shaw. The convoluted and complicated procedural history allows for no easy recitation of the history of this probate matter; therefore, we set forth the following timeline for ease of discussion: February 18, 2005 Barbara Lou Shaw dies intestate. March 8, 2005 application for letters of administration and appointment of personal representative Stephen Earl Bennett ("Respondent").

identifies himself and Marilyn A. Dunavant as first cousins and the only heirs at law. April 15, 2005 entry of appearance for Betty J. Farrior Brush, claiming to be maternal first cousin; Jennifer Farrior Coburn and Tischia O'Farrior claiming to be maternal first cousins once removed (collectively, "Appellants"). June 24, 2005 amended entry of appearance filed on behalf of Appellants who alleged that they were heirs at law. Betty J. Farrior Brush (maternal first cousin) Jennifer Farrior Coburn (maternal first cousin once removed) Tischia O'Farrior (maternal first cousin once removed) Margo A. Davis Grover (maternal first cousin of the half blood) Susan Davis Anderson (maternal first cousin of the half blood) (collectively, "Appellants") March 13, 2006 filed by Respondent: Affidavit of Publication Petition for Approval of Final Settlement and Order of Distribution Proposed Final Settlement Approved, Finding and Decree of Heirship, Succession and Distribution (hereinafter, "Order of Distribution I"). Contained in the court file: a signed but undated copy of Respondent's proposed Order of Distribution; there is no separate docket entry regarding when the signature was attached to the Order of Distribution March 23, 2006 Appellants filed objections to the Petition for Approval of Order of Distribution I April 19, 2006 Respondent's attorney sends letter to the Probate Clerk advising her to cancel the scheduled hearing on Appellants' objections because he would be withdrawing the Order of Distribution I and related documents. July 6, 2007

Respondent filed: Proposed Final Settlement, Finding and Decree of Heirship, Succession and Distribution (hereinafter, "Order of Distribution II"), which includes all Appellants and Linda Davis Comstock, who is not represented in this appeal. Affidavit of Publication notice of Order of Distribution II Petition for Approval of Order of Distribution II July 27, 2006 Court approves and files Order of Distribution II. August 7, 2006 Appellants object to Order of Distribution II. motion asked the court to divide the estate based on the proper familial classification pursuant to Mo. Law and provided a proposed schedule of distribution. November 28, 2006 Hearing on Appellants' objection to the approved Order of Distribution II. Court takes matter under advisement. December 5, 2006 Court overruled Appellants' August 7, 2006 objections Judgment affirming Order of Distribution II filed July 6, 2006 by Respondent. (Orders Respondent's attorney to file revised Final Settlement and Order of Distribution within fifteen days from that date.) A notation on December Judgment crossed out the signature on the judgment and states "This Final Settlement was erroneously signed. WKC." The cross-out is undated. Also, the date (July 6 th ) is crossed out and a handwritten March 13 th /WKC is written. The notation is undated. January 19, 2007 Respondent files a revised Order of Distribution (hereinafter, "Order of Distribution III"), which did not include Appellants as heirs to the estate.

January 25, 2007 Docket entry: "December 5, 2006 Judgment corrected nunc pro tunc to reflect the correct date of the original final settlement approval, finding and decree of heirship, succession and distribution, filed on March 13, 2005. . . . Order Approving Final Settlement". February 14, 2007 Personal representative discharged. February 26, 2007 Appellants file Motion to Set Aside the January 25 th Order April 9, 2007 Hearing on Appellants' Motion. Judge entered an order denying Appellants' Motion to Set Aside. April 17, 2007 - Notice of Appeal filed. Appellants claim three trial court errors as a result of the trial court's denial of the motion to set aside the January 25, 2007 order: (1) the January 25, 2007 order was not a correction of an administrative or clerical error and, thus, it was an improper nunc pro tunc order; (2) the January 25, 2007 nunc pro tunc order approved the March 13, 2006 pleading, which had been withdrawn and abandoned by Respondent; and (3) the clear and convincing evidence was that Appellants were heirs to the estate of Barbara Shaw. Respondent, on the other hand, claims we are without jurisdiction and the appeal from the April 9, 2007 order, denying Appellants' motion to set aside the January order and Order of Distribution III, must be dismissed as untimely.(FN1) We agree the appeal must be dismissed for lack of jurisdiction, but not for the reasons set forth by Respondent; therefore, we will not address the points raised by Appellants. To reach our conclusion, we must look at the legal effect of each of the orders of distribution. First, although there is a signed Order of Distribution, which is not dated and conforms to the proposed March 13, 2006 Order of Distribution, we find that Order of Distribution I, if it was in fact signed on the same day that it was proposed, is a nullity. We arrive at that conclusion by analyzing the judgment with due process considerations and through Missouri precedent. First, Order of Distribution I would be void as it failed to provide due process in the way of notice and an opportunity to be heard. See In re Marriage of Hendrix, 183 S.W.3d 582, 590 (Mo. banc 2006) ("The label 'jurisdictional defect' is seldom appropriate outside the context of lack of jurisdiction of the subject matter or of the person.

While it is not erroneous to use it in the narrow circumstances noted above in which a court by statute is without authority to hear a matter or to issue a judgment on a matter it purports to resolve, or does so without notice and an opportunity for hearing – areas that are related to, if not subsets of, lack of jurisdiction of the subject matter or the person . . . .") Section 473.590 provides that after publication and notice is given, objections may be filed within twenty days. If Order of Distribution I was signed prior to the twenty days given by statute to file objections to a petition for distribution and objections are filed, the judgment would be void if there is no opportunity to be heard. Section 473.590. This rationale is in conformance with past Missouri interpretations of the effects on a final settlement when objections are filed. Prior to the 1955 Probate Code, the timely filing of exceptions to objectionable items in the petition for distribution in probate court set aside any previously filed order of distribution, suspended the operation of the order of distribution and kept the estate open. In re Mills' Estate, 162 S.W.2d 807, 811 (Mo. 1942). Therefore, the purported March 13, 2006, Order of Distribution I, was not a final judgment triggering any appeal requirements to either party. The same cannot be said of the July 6, 2007 petition for distribution, resulting in Order of Distribution II. On that date, notice was given by publication; that meant that any objections to that petition for distribution must have been filed within twenty days after the filing of the petition for distribution. "If no objections are filed, the court may approve the final settlement and order distribution as prayed, without hearing if it deems such action proper." Section 473.590. On the twenty-first day after the petition for distribution was filed, the court ordered distribution by directing and filing Order of Distribution II, a final order. Section 472.160(14). Two rules of civil procedure then come into play on the timeliness of an appeal from that order. A judgment becomes final at the expiration of 30 days after its entry and the trial court no longer retains jurisdiction, unless an approved after-trial motion is filed. Rule 81.05.(FN2) If the August 7, 2006 objections filed by Appellants constitute a valid after-trial motion, a decision we need not make, then Rule 81.05(a)(2) indicates the court retained jurisdiction for ninety days from the filing of the motion or until the motion was ruled on, whichever comes first. In this case, the trial court ruled on the August 7, 2006 motion on November 28, 2006, which was more than 90 days after the filing of the August 7, 2006 objections. The court retained jurisdiction to rule on any valid after-trial motion until November 6, 2006. Appellants then had ten days from that date to file a notice of appeal. Rule 81.04. They did not do so. Although the parties and the court continued to act as though the case was still open, the fact remains that a valid, final, unappealed judgment was entered on July 27, 2006. That judgment remains valid to this date and none of the actions, entered by the trial court subsequent to that judgment, could vary the terms of that judgment. We, therefore,

dismiss the appeal from the January 25, 2007 purported Order of Distribution. The appeal is dismissed because we lack appellate jurisdiction. The case is further remanded to the trial court with instructions to vacate any order inconsistent with the July 27, 2006 judgment. See In re Marriage of Miller, 196 S.W.3d 683, 694 (Mo. App. S.D. 2006) (trial court ordered to vacate orders in which it did not have subject matter jurisdiction). Footnotes: FN1.Respondent also claims the appeal is from an "order" and not a judgment; however, pursuant to section 472.160.1, Appellants had the right to appeal from the final order of distribution, regardless of its denomination as a final settlement. All references to statutes are to RSMo (2000) unless otherwise indicated. FN2.All rule references are to Missouri Court Rules (2007), unless otherwise specified. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.