Are Responsive Pleadings Required Automatically
by Brian A. Bild1
Section 472.141, RSMo, and established case law do not provide for responsive probate pleadings. However, a recent unpublished case from the Missouri Court of Appeals for the Eastern District requires responsive pleadings for any appeal of probate matters, including probate claims.2 Is this a new, silent change or basic probate law?
I. To Plead or Not to Plead
Most attorneys who practice in the probate division are aware that responsive probate pleadings are an exception rather than the rule. Of the thousands of disputes in the probate division, few attorneys file responsive pleadings. Almost never is there a responsive pleading to a probate claim.
However, a recent opinion from the Missouri Court of Appeals for the Eastern District seems to require a responsive probate pleading to obtain any appellate review. This new requirement for appeal was so obvious to the Eastern District that it did not publish its opinion establishing this new rule: "A written opinion reciting the facts and restating the law would have no jurisprudential value."3
Procedurally, the memorandum opinion is unreported and has no value as a precedent. However, it contains a serious warning for those who practice rarely or regularly in the probate division. In the Eastern District, for the time being, there is an appellate requirement for responsive probate pleadings in the probate division grafted silently into § 472.141, and contrary to case law.
The basic Missouri statute on probate pleadings is § 472.141, particularly subsection 2:4
(2) The provisions of Chapter 509, RSMo, [the statute chapter on pleadings] and civil rule 55 [the rule on pleadings and motions] shall not apply unless specifically made applicable by a provision in the probate code or unless the court enters an order designating all or specific provisions of chapter 509, RSMo, or civil rule 55 applicable to a particular adversary probate proceeding.
For some unknown reason, the appellate opinion also ignored consistent, established case law. There are four major cases from 1939 through 1984 holding that responsive pleadings are not required generally in probate court. (There is no contrary case law.) These cases are:
1. U.S. Testing Co., Inc. vs. Estate of Glenn: "Rule 55 does not apply to civil actions in the probate civision."5
2. Matter of Estate of Curtis: "Generally, Rules 41 through 101, except Rules 56 through 62, are not applicable to proceedings governed by the Probate Code."6
3. Broz v. Broz: "But we must remember that formal pleadings are not required in the probate court."7
4. Hall vs. Greenwell: "Appellant assigns as error that no pleading had been filed below on behalf of the estate, and that, therefore, the court erred in permitting the postnuptial contract to be introduced in evidence on the part of the estate. The point is without merit."8
II. The Hogan Case
The court opinion of In re the Estate of Jeanette Hogan9 concerns the possible liability of the first successor conservator for acts of the original conservator. The second successor conservator filed a petition to determine liability against the first successor conservator (not the original conservator) alleging only unspecified "liability." No specific or general transactions were mentioned in the petition. There was never a court order finding the proceedings adversary.
The conservatorship involved 54 separate investments totaling $1,200,000 (including dividend reinvestments in most of the investments). The first successor conservator filed two years of corrected settlements for transactions during the original conservator's time of service, although he was under no obligation to do so. He also filed two years of settlements for his transactions. Each of these settlements for the original conservator was 30 pages long, with each transaction itemized. Merely listing the assets took nine pages.
Due to his fatal illness, the original conservator did not provide a full set of backup documents, so accounts for his transactions could not balance. As a fundamental problem, the probate division auditors would not approve any settlements of the first successor conservator because there was no verified accounting from the original conservator.
The probate division found liability only against the first successor conservator because there was no verified accounting from the original conservator. The first successor conservator filed a motion to reconsider judgment. The first successor conservator requested and received a review and changes reducing the liability. The judgment recited no individual transactions, in spite of the court's calculations to the penny and the court's access to its probate auditors.
The reconsidered judgment described the liability only as:
1. $15,968.62 of "unaccounted for assets and/or unauthorized expenditures,"10
2. $ 1,898.30 of interest,
3. $ 9,981.50 of "penalties and interest on 1997 - 2000 taxes and uncollectible tax refund for 1997"11 (the first successor conservator was appointed on February 22, 2000),
4. $ 15,000 of "[f]ees for services rendered by Public Administrator's Office as a result of the removal and default of the prior fiduciary,"12 and
5. Various court costs.
III. The Eastern District "Rule"
The court of appeals would not decide the case on the merits.
In response to Public Administrator's Petition to Determine Liability, Conservator filed affidavits detailing various expenditures, some of which were made in the absence of court approval. There were no responsive pleadings filed, nor did conservator address the original conservator's liability in any pleading or court document other than his post-trial motion. Consequently, he waived appellate review of the distribution of liability."13
In summary, the situation, as described by the appellate opinion, is as follows: A first successor conservator with a high value and financially complex conservatorship can be found liable on the vaguest of pleadings for "liability" and a similarly vague judgment of "unaccounted for assets and/or unauthorized expenditures" even though there was no final settlement of the original conservator. This lack of a final settlement is a clear violation of § 475.295(1),
14 § 473.607,
15 § 475.290,
16 and § 475.295(1).
17 However, the first successor conservator cannot challenge the judgment by a motion to reconsider.
According to the appellate opinion (and contrary to statutes and case law), the original conservator needs no accounting. The burden of proof and the accounting are backwards. The first successor conservator must make a full and complete accounting, but the original conservator makes no accounting. Try and explain this backwards accounting to an accountant. This corner of the law is turned inside out.
The first successor conservator filed his affidavits in the legal file detailing 88 pages of itemized expenditures by the original conservator and the first successor conservator. However, paradoxically, the first successor conservator did not "address the original Conservator's liability.in any court document other than his post trial motion."
The Supreme Court of Missouri would not hear the case. There may be other similar appellate court cases "for information only" that impose a pleading requirement in the probate court clearly contrary to the statute and case law.
IV. The Warning and the Burden
This article is a warning about a hidden Eastern District Court of Appeals requirement for responsive probate pleadings. As required by this court of appeals' opinion, responsive probate pleadings are essential in spite of the wording in § 472.141 and established case law. If this responsive probate pleading requirement is the same as Rule 55 (the rule on pleadings and motions), a first successor conservator must be accurate factually in his responsive pleading. Apparently, he must guess which individual transactions would impose liability anywhere in the dozens of pages of settlements and hundreds of itemized transactions. However, the original pleader is not necessarily required to be factually specific.
If an original conservator's records are missing, somehow the successor conservator must know which of those transactions are the required "ultimate facts" for pleading. Similar difficulties might arise with a successor conservator's statement of facts supporting affirmative defenses. An infrequent probate practitioner could easily overlook the need for a responsive pleading to a routine probate claim. This procedural trap seems needless and turns statutes and case law upside down to "fix" a problem that did not exist. Will the other appellate districts also fix this non-existent problem?
For more than 65 years, the probate division has had no mandatory responsive pleadings. However, the Eastern District Court of Appeals has created a hidden, awkward and unnecessary requirement of responsive pleadings.
V. Quo Vadis
The author doubts this situation can be resolved easily. The wording of § 472.141 and the case law couldn't be much clearer. Apparently, some decisions of the court of appeals and Supreme Court of Missouri are willing to create new probate procedures that are contrary to the clear wording of the probate statutes and time-honored case law.
In the author's opinion, the Missouri appellate courts wish to conduct themselves in a manner similar to the federal courts. In the federal system, the trial courts have great latitude to decide matters without close appellate supervision. That is, appeals are rarely successful. The Supreme Court takes the few cases that make general policy.
Missouri pleadings, motions and trial procedures are more frequent and more complicated than the federal system. A bare bones federal-like system for Missouri courts allows fewer corrections of trial court errors. Therefore, Missouri's statutory law requirements will diverge from the law in its appellate courts. Such a divergence will encourage the litigation of doubtful cases and discourage the settlement of cases. Missouri's legal system and its litigants should not bear this additional burden. Is Missouri law sliding backwards to the age of specialized writs?
Footnotes
1 Mr. Bild is a sole practitioner who has an estate planning and litigation practice, as well as a general practice. His A.B. degree is from the University of Missouri-Columbia. His M.B.A. degree is from the University of California at Los Angeles and his J.D. degree is from the University of Michigan.
2 In re the State of Jeanette Hogan, No. ED 83757 (Mo. App. E.D. May, 25, 2004).
3 Id. at E-1.
4 Section 472.141, RSMo 2000.
Proceedings to be Conducted in Accordance With Rules of Procedure - Order after Action Commenced.
1. An adversary probate proceeding shall be governed by the civil code of Missouri and the rules of civil procedure; except that:
(1) Where the probate code or any other statute contains a provision prescribing practice, procedure or pleading, applicable to the pending proceeding, the provisions of the probate code or such statutes shall govern; and
(2) The provisions of chapter 509, RSMo, and civil rule 55 shall not apply unless specifically made applicable by a provision in the probate code or unless the court enters an order designating all or specific provisions of chapter 509, RSMo, or civil rule 55 applicable to a particular adversary probate proceeding.
2. If a proceeding is already commenced when the court determines it to be adversary, the court may, on its own motion or on motion of any interested person, enter an order specifying the appropriate provisions of chapter 509, RSMo, or civil rule 55, which shall govern the proceeding.
3. The civil code of Missouri and the rules of civil procedure shall govern all other actions or proceedings which may be heard by a judge of the probate division pursuant to assignment or otherwise, except as otherwise provided by law.
(L. 1978 H.B. 1634, A.L. 1986 H.B. 1297)
5 673 S.W. 2d 842, 844 (Mo. App. S.D. 1984).
6 663 S.W. 2d 420, 422 (Mo. App. S.D. 1983).
7 132 S.W. 2d 1039,1041 (Mo. App. E.D. 1939).
8 85 S.W. 2d 150, 155 (Mo. App. E.D. 1935).
9 No. ED 83757 (Mo. App. E.D. May 25, 2004).
10 See St. Louis County Cir. Ct., Probate Div. No. 124995 (October 8, 2003).
11 Id.
12 Id.
13 Hogan at E-5.
14 Section 475.295, RSMo 2000.
Death of Conservator, Personal Representative to Make Settlement - Waived When.
475.295 1. In case of the death of a conservator, his personal representative shall make settlement with his successor, and deliver the property and money belonging to the protectee whose estate was managed by his decedent to such successor. When the sole purpose of administering the estate of the deceased conservator is to make settlement of the estate of the protectee, the court may waive the appointment of a personal representative for the deceased conservator. In such circumstances, the successor shall file a settlement showing the condition of the estate of the protectee and, upon approval by the court, shall be charged with such assets as are shown therein, provided, however, that such successor shall not be relieved of the duty to account for assets of the protectee not shown on such settlement.
2. If a deceased conservator leaves no estate subject to administration, and letters are issued to his personal representative solely for the purpose of making settlement under this section, the costs and expenses of administration of such administration shall be paid by the estate of the protectee of which the decedent was conservator; and, in the administration proceeding in the estate of the deceased conservator there need be no publication as required by section 473.033, RSMo.
(RSMo 1939 § 434, A.L. 1955 p. 395 § 340, A.L. 1983 S.B. 44 & 45)
Prior revisions: 1929 § 435; 1919 § 431; 1909 § 461
15 Section 473.607, RSMo 2000.
Proceedings to Compel Settlement-Judgment, Enforcement.
1. On the application of any successor or surviving personal representative or of any interested person the court may order any personal representative or his legal representatives or any other person to file any final settlement required by this law or by the order of the court, and may attach and commit for contempt any person who fails to file the settlement within the time fixed by the court until he complies with the order of the court.
2. The court, on the application of any successor or surviving personal representative or of any interested person, may also ascertain what quantity and kind of property of the decedent was in the hands of a personal representative who has failed to file his final settlement as required by this law or by the order of the court, or whose personal representative or conservator has failed to file settlement and may render judgment against the personal representative and his sureties therefor. The judgment may be enforced by execution or, in case delivery of specific property or papers is required, by attachment and commitment of his person until delivery is made.
3. An application filed under this section shall be set for hearing and at least ten days' notice of the time and place of the hearing thereon shall be given all parties affected thereby, by the clerk, and shall be served in the manner directed by the court in accordance with section 472.100, RSMo.
(L. 1955 p. 385 § 214, A.L. 1983 S.B. 44 & 45)
16 Section 475.290, RSMo 2000.
Final settlement required, when-notice.
475.270 1. Conservators shall make final settlement of their conservatorship at a time fixed by the court, either by rule or otherwise, within sixty days after termination of their authority. For the purpose of settlement, the conservator shall make a just and true exhibit of the account between himself and his protectee, and file the same in the court having jurisdiction thereof, and cause a copy of the account, together with a written notice stating the day on which and the court in which he will make settlement, to be delivered to his protectee or, in case of revocation or resignation, to the succeeding conservator or in case of death of his protectee to his executor or administrator or other person designated by the court, at least twenty days before the date set for settlement.
2. If, for any cause, a copy of the account and written notice cannot be delivered to the protectee or other person entitled thereto, the court may order notice of the filing of the account, and of the time and place at which final settlement is to be made, to be given by publication once a week for four weeks next before the date set for settlement in accordance with section 472.100, RSMo.
3. At the time specified in the notice, the court, upon satisfactory proof of the delivery of a copy of the account and written notice of the settlement to the protectee or person entitled thereto, or his written waiver thereof, or in case the court has ordered notice to be given by publication, then upon proof of compliance with such order, shall proceed to examine the accounts of the conservator, correct all errors therein, if any there be, and make a final settlement with the conservator; or the court may, for good cause, continue the settlement and proceed therein at any time agreed upon by the parties or fixed by the court.
(RSMo 1939 § 430, A.L. 1955 p. 385 § 339, A.L. 1978 H.B. 1634, A.L. 1983 S.B. 44 & 45)
Prior revisions: 1929 § 430; 1919 § 426; 1909 § 456
17 Section 475.295.1, RSMo 2000.
1. In case of the death of a conservator, his personal representative shall make settlement with his successor, and deliver the property and money belonging to the protectee whose estate was managed by his decedent to such successor. When the sole purpose of administering the estate of the deceased conservator is to make settlement of the estate of the protectee, the court may waive the appointment of a personal representative for the deceased conservator. In such circumstances, the successor shall file a settlement showing the condition of the estate of the protectee and, upon approval by the court, shall be charged with such assets as are shown therein, provided, however, that such successor shall not be relieved of the duty to account for assets of the protectee not shown on such settlement.
JOURNAL OF THE MISSOURI BAR
Volume 61 - No. 4 - July-August 2005