Murg v. Barnsdall Nursing Home10/18/2005
__ P.3d __
The dispositive issue presented for our review is whether the letters of special administration of appellant, Wilhelm Murg, Jr., Individually and as Personal Representative of the Estate of Virginia Murg, Deceased, (hereinafter "Murg, Jr.,") properly were issued, or whether his appointment was void ab initio (99,701) (Murg I). Our holding regarding appellant's negligence claim against appellee, Barnsdall Nursing Home, (hereinafter "Barnsdall") (99,367) (Murg II) hinges upon our determination of the validity of Murg, Jr.'s appointment as Special Personal Representative. If we determine his appointment was valid, then he has the requisite standing to pursue a wrongful death negligence claim against Barnsdall. If we find that his appointment was void ab initio, then the negligence claim necessarily fails, for lack of standing. We shall treat these two matters as companion cases, for disposition by the instant opinion. The record before the Court establishes the following relevant facts.
FACTS AND PROCEDURAL HISTORY
Decedent, Virginia Murg, died intestate on or about August 17, 2001. Prior to her demise, Mrs. Murg was a resident of Barnsdall Nursing Home from March 2001 until May 2001. While a resident of Barnsdall Nursing Home, the record establishes that decedent suffered from stage IV bedsores. In addition, the record shows that decedent was treated for dehydration and malnourishment, and for injuries sustained when she fell from her wheel chair. Her husband, Wilhelm Murg, Sr., (Murg, Sr.,) and her son, Wilhelm Murg, Jr., (Murg, Jr.,) appellant herein, survived her. The record contains numerous Minute Orders from the probate court. We reference only those that are pertinent to the issues before us.
A Court Minute file-stamped October 9, 2001, reflects that: 1) decedent died intestate; 2) Murg, Sr., and Murg, Jr., were "all of her heirs at law"; and 3) Murg, Sr., was appointed administrator to serve without bond. A subsequent Court Minute, dated May 8, 2002, and file-stamped May 9, 2002, reflects Murg, Sr., and Murg, Jr., were present at a hearing on the final accounting and that Murg, Jr., had filed an Objection to Final Account on March 28, 2002, regarding an issue unrelated to those herein.
On June 13, 2002, Murg, Jr., filed his Petition For Appointment of Special Personal Representative with the District Court of Osage County, stating therein that 12 O.S.2001, ยง 1054 required the appointment of a personal representative to pursue a wrongful death claim, with the court to apportion any and all proceeds from the claim between the surviving spouse and the surviving son. A Final Decree and Decree of Distribution, file-stamped June 19, 2002, but handwritten in the body of said decree as coming on for hearing on the 9th day of May, 2002, names Murg, Sr., and Murg, Jr., as the only heirs at law. It discharges and releases Murg, Sr., as personal representative, and cancels and sets aside his letters testamentary. At this time, Murg, Jr.'s application for Appointment of Special Personal Representative had been on file six days, according to the Osage County Court Clerk file stamps on these documents.
The record contains correspondence from the Oklahoma State Department of Health dated May 9, 2002, that references a Complaint Supplemental received against Barnsdall on September 5, 2001, and investigated November 1, 2001, through December 14, 2001. This correspondence contains certain findings, including a conclusion that the complaint was verified and that Barnsdall
" . . . failed to assess and treat the resident's pressure sores. F-325 was cited regarding the facility failure to ensure that a resident maintain
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