Murg v. Barnsdall Nursing Home10/18/2005
s acceptable parameters of nutrition status."
Murg, Sr.'s affidavit, dated March 26, 2003, and contained in the record before us, states his belief that pursuing a lawsuit against Barnsdall "is not in the interest of Ruth's estate."
By Court Minute dated and file-stamped July 25, 2002, the court appointed Murg, Jr., as special administrator, over the objection of his father, Murg, Sr. Bond was set in the amount of $20,000.00. The formal order memorializing this minute order, dated July 25, 2002, and file-stamped August 1, 2002, states that Murg, Jr.
" . . . is hereby appointed special personal representative to pursue a civil action against the Barnsdall Nursing Home and all culpable entities and persons on behalf of the Estate of Virginia Ruth Murg, deceased. The Natural Son, Wilhelm Louis Murg, Jr., is ordered to post a bond in the amount of $20,000.00."
On September 10, 2002, Murg, Sr., filed a Motion to Reset Hearing, because the United States Department of the Interior refused to approve the final account, based upon issues irrelevant to the instant matter. On December 27, 2002, Murg, Sr., filed a motion to modify the Final Decree, also premised upon matters not before us. A subsequent Court Minute Order filed December 30, 2002, resolved this dispute, and a subsequent order filed January 10, 2003, formalized its resolution. Neither is pertinent to the issues before us, but both evidence the fact that the decedent's estate was reopened during the course of these hearings, which occurred after the appointment of Murg, Jr., as Special Personal Representative. We also note that these proceedings were precipitated by Murg, Sr., and thus any contention that the estate was closed, never to be reopened, in May 2002, lacks merit.
Almost nine months after the July 25, 2002, appointment of Murg, Jr., as special representative to pursue the action against Barnsdall, on April, 2, 2003, Barnsdall filed a Non-Party Entry of Appearance in this probate matter for the sole purpose of objecting to and seeking to vacate Murg, Jr.'s appointment. Barnsdall asserted itself to be an "interested party", with no citation of authority to support this allegation in its brief filed with the probate court on April 9, 2003. It contended that, should Murg, Jr., prevail in the wrongful death action against it, Barnsdall would be "a potential debtor of the estate" and that it could be a potential "creditor of the estate" if it were awarded damages from either potential counterclaims, (none of which Barnsdall references) or normal attorney fees/costs incident to litigation. Barnsdall contended that Murg, Sr.'s decision not to pursue the litigation precluded the appointment of his son for the express purpose of doing so. It also referenced a protective order issued against Murg, Jr., that was filed in the Osage Tribal District Court on April 27, 1999. We determine this document to be irrelevant to the matter before us.
The probate court issued Special Letters of Administration to Murg, Jr., filed on April 14, 2003, almost nine months after the Court Minute dated and file-stamped July 25, 2002, that appointed him as special administrator over his father's objection. A bond from The Ohio Casualty Insurance Company also was filed April 14, 2003, in the amount of $25,000.00. A Minute Form filed August 4, 2003, reflects the hearing on Barnsdall's Motion to Vacate Special Letters of Administration. The decision was memorialized in an order dated August 4, 2003, and file-stamped August 6, 2003, wherein the probate court held in pertinent part that Barnsdall was an interested party in the probate court case "because of the appointment of Mr. Wilhelm Murg, Jr., of which it
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