Murg v. Barnsdall Nursing Home10/18/2005
complains who sued it in the civil case." This particular order vacated Murg, Jr.'s Letters of Special Administration and the order of appointment.
Murg, Jr., timely filed a wrongful death negligence action against Barnsdall on September 27, 2002, both individually and as Special Representative of the decedent's estate. Barnsdall filed a motion to dismiss the wrongful death action filed by Murg, Jr., in his capacity as Special Personal Representative. (99,367)(Murg II) Barnsdall argued therein that Murg, Jr., as Special Personal Representative, lacked standing to bring the action, because a personal representative previously had been appointed, and had declined to file a negligence action against it. Barnsdall failed to provide any authority that would tend to support its contention that it had standing to contest the appointment of Murg, Jr.
The probate court ultimately issued an order that vacated Murg Jr.'s letters of special administration (99,701) (Murg I) on the basis that it had lacked authority to make the appointment. As a result of that order, the trial court in the pending negligence action then entered an order that granted summary judgment in favor of Barnsdall on Murg Jr.'s wrongful death negligence claim, on the basis that Murg Jr. lacked standing, because the probate court had vacated his letters of special administration and presumably, his father was the only one with standing to file such a lawsuit. (99,367)(Murg II).
STANDARD OF REVIEW
The order of the probate court in Murg I (99,701) involves a legal issue, to-wit: whether the probate court had the authority to appoint Murg, Jr., as Special Personal Representative. "An appellate court claims for itself plenary, independent and non-deferential authority to re-examine a trial court's legal rulings." Manley v. Brown, 1999 OK 79, 22, n.30; 989 P.2d 448, 456, n.30. Accordingly, our standard of review regarding the probate court's order in Murg I is de novo.
The trial court's order in Murg II (99,367) granted summary judgment to Barnsdall on a legal issue, to-wit: that Murg, Jr., lacked standing to file a wrongful death negligence action because his letters of special administration were void ab initio. Summary judgment is appropriate where it appears there is no substantial controversy as to any material fact and one party is entitled to judgment as a matter of law. Daugherty v. Farmers Coop. Ass'n, 1984 OK 72, 5, 689 P.2d 947, 949; Crockett v. McKenzie, 1994 OK 3, 3, 867 P.2d 463, 464. " he inquiry on appeal concerning the propriety of the entry of summary judgment is limited to potential controversies concerning any issue raised by the pleadings." Wabaunsee v. Harris, 1980 OK 52, 9; 610 P.2d 782, 785. An order that grants summary relief disposes of legal issues. Therefore, on appeal, the review we conduct is de novo. Brown v. Nicholson, 1997 OK 32, n.1; 935 P.2d 319, 321 n. 1; Manley v. Brown, 1999 OK 79, 22, n.30; 989 P.2d at 456 n.30. Accordingly, our standard of review regarding the trial court's order in Murg II also is de novo.
Murg I (99,701) AUTHORITY OF PROBATE COURT TO ISSUE LETTERS OF SPECIAL ADMINISTRATION
Probate courts are creatures of the law and are limited in their jurisdiction. Rust v. Gillespie, 1923 OK 346, 14, 216 P. 480, 482 (1923). In the instant case, the probate court ultimately determined it was without jurisdiction to appoint Murg, Jr., as Special Personal Representative, because it had no jurisdiction to act in the probate matter upon filing Murg, Sr.'s discharge as Personal Representative. As such, the court reasoned that the Special Personal Representative appointment was void ab initio. We disagree. We also
Page 1 2 3 4 5 6 7 8 Oklahoma Personal Injury Attorneys
Personal Injury Lawyers
|