Court of Appeals of Missouri, Western District, Third Division
IN THE ESTATE OF PATRICIA A. KRUSZKA, DECEASED; JOHN LEACHMAN, Appellant,
RICHARD GREGORY, Respondent.
FROM THE CIRCUIT COURT OF BUCHANAN COUNTY, MISSOURI THE
HONORABLE DANIEL F. KELLOGG, JUDGE
Victor C. Howard, Presiding Judge, Gary D. Witt, Judge and
Zel Fischer, Special Judge.
C. HOWARD, JUDGE.
Leachman appeals from a judgment entered in probate
proceedings sustaining a claim of Richard Gregory against the
Estate of Patricia A. Kruszka. Because Mr. Leachman's
notice of appeal was untimely, the appeal is dismissed.
Kruszka died intestate on September 7, 2012. She was survived
by two children, Mr. Leachman and Mr. Gregory. Letters of
administration were issued, and Mr. Leachman was appointed
the personal representative of the estate. Mr. Gregory
asserted a claim against the estate for approximately $215,
000 for expenses paid for maintenance of estate real
property. Upon motion of Mr. Leachman, the trial court
designated the probate proceeding as adversarial under
section 472.140 and governed by the Missouri Rules of
Civil Procedure pursuant to section 472.141.1. Thereafter,
Mr. Gregory filed a petition to assert the claim against the
estate, and a bench trial was conducted. The probate court
entered judgment on April 13, 2016, sustaining Mr.
Gregory's claim against the estate in the amount of $165,
411.19. Mr. Leachman filed his notice of appeal on May 23,
2016. Mr. Gregory filed a motion to dismiss the appeal as
untimely, and the motion was taken with the case.
right to appeal from a judgment of the probate court is
purely statutory. In re Kraus, 318 S.W.3d 274, 276
(Mo. App. W.D. 2010). Section 472.180 provides, "All
appeals [under the probate code] shall be taken within the
time prescribed by the rules of civil procedure relating to
appeals." Rule 81.04(a) requires that a notice of appeal
be filed within ten days after a judgment becomes final.
orders of the probate court are interlocutory and not subject
to appeal until final disposition. Kraus, 318 S.W.3d
at 276. However, certain orders, judgments, and decrees
enumerated in section 472.160.1 are subject to immediate
appeal. Id. The statute provides, in relevant part,
"Any 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…." § 472.160.1(1). "The
interlocutory probate orders listed in §
472.160.1(1)-(13) are final for purposes of appeal when they
are entered." Kraus, 318 S.W.3d at 276.
Section 472.160 creates an expedited right to appeal certain
probate orders which otherwise would be interlocutory and
unappealable. 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. It follows that 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. The orders listed in section 472.160 are ready
for appeal when made.
Id. (quoting In re Estate of Standley, 204
S.W.3d 745, 748-9 (Mo. App. S.D. 2006)(en banc)).
the judgment allowing Mr. Gregory's claim against the
estate was entered on April 13, 2016, and was immediately
appealable upon entry. Under Rule 81.04(a), Mr. Leachman had
ten days from the date of entry to file a notice of appeal.
He did not file his notice of appeal until May 23, 2016,
forty days later. As such, Mr. Leachman's notice of
appeal was untimely.
Leachman argues that because the probate court designated the
underlying proceeding as adversarial under section 472.140
and governed by the Missouri Rules of Civil Procedure
pursuant to section 472.141.1,  the April 13, 2016 judgment was a
judgment as defined in Rule 74.01(a) and the timeframe for
appeal created by Rules 81.04 and 81.05 applied in this case.
Specifically, he notes that under Rule 74.01(a),
"'[j]udgment as used in these rules includes a
decree and any order from which an appeal lies." Under
Rule 81.05(a)(1), in the absence of a timely post-trial
motion, a judgment becomes final thirty days after entry; and
the notice of appeal must then be filed within ten days after
the judgment becomes final under Rule 81.04(a). Thus, Mr.
Leachman argues, the April 13, 2016 judgment became final
thirty days after it was entered, and his May 23, 2016 notice
of appeal filed within ten days after that was timely.
Missouri Supreme Court recently rejected such argument in
context of an appeal from the denial of a motion to compel
arbitration. Sanford v. CenturyTel of Mo., LLC, 490
S.W.3d 717 (Mo. banc 2016). In Sanford, the
defendant did not file a notice of appeal from the trial
court's order denying a motion to compel arbitration
until thirty-nine days after its entry. Id. at 719.
As in the instant case, the defendant in Sanford
argued that the trial court's order was a judgment under
Rule 74.01(a) and, therefore, Rule 81.05(a)(1) applied and
the judgment became final thirty days after it was entered.
Id. at 720. If true, the defendant's notice of
appeal was timely filed. Id.
Missouri Supreme Court, however, found that Rule 81.05(a)(1)
does not apply to appealable interlocutory orders.
Id. at 721. It explained that the defendant's
argument ignored the purpose and function of Rule
81.05(a)(1)'s delay of the finality of a judgment for
thirty days. Id. at 720. The delay is to allow the
trial court to retain control over judgments to vacate,
reopen, correct, amend, or modify judgments for good cause.
Id. Such delay, however, is unnecessary and
inappropriate for an interlocutory order because under Rule
74.01(b), a trial court has authority at any time before
final judgment to open, amend, reverse, or vacate an
interlocutory order. Id. Specifically, Rule 74.01(b)
provides in pertinent part:
[A]ny order or other form of decision, however designated,
that adjudicates fewer than all the claims or the rights or
liabilities of fewer than all the parties shall not terminate
the action as to any of the claims or parties, and the order
or other form of decision is subject to revision at any time
before the entry of ...