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2005 OK 74
123 P.3d 11
Case Number: 99701 (companion with 99367)
Decided: 10/18/2005


WILHELM MURG, JR., individually and as Personal Representative of the Estate of VIRGINIA MURG, deceased, Plaintiff/Appellant,
BARNSDALL NURSING HOME, Oklahoma corporation, Defendant/Appellee.


¶0 These two appeals are treated as companion cases for disposition by a single opinion. In each matter, the Court of Civil Appeals, Division IV, affirmed the trial court's orders, to-wit: the order that vacated appellant's letters of special administration (99,701) (Murg I) and the order that dismissed appellant's negligence claim against appellee for lack of standing (99,367)(Murg II).


Gerald J. Lovoi, Tulsa, Oklahoma, attorney for Appellant Wilhelm Murg, Jr., Individually and as Personal Representative of the Estate of Virginia Murg, deceased.
W. Michael Hill, E. Anthony Mareshie, Secrest, Hill & Butler, Tulsa, Oklahoma, attorneys for Appellee Barnsdall Nursing Home.


¶1 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.


¶2 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.

¶3 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.

¶4 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

¶5 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

" . . . failed to assess and treat the resident's pressure sores. F-325 was cited regarding the facility failure to ensure that a resident maintains 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."

¶6 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."

¶7 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.

¶8 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.

¶9 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 complains who sued it in the civil case." This particular order vacated Murg, Jr.'s Letters of Special Administration and the order of appointment.

¶10 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.

¶11 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).


¶12 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,

¶13 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,

Murg I (99,701)

¶14 Probate courts are creatures of the law and are limited in their jurisdiction. Rust v. Gillespie,

Continued Existence of Probate Estate

¶15 At the time of Murg, Sr.'s discharge as Personal Representative, a viable and potentially substantial claim existed against Barnsdall, a claim that represented a potential debt to the decedent's estate. The probate estate was reopened by the appointment of Murg, Jr., as Special Representative. The record reflects that Murg, Sr., was present at the hearing thereon, and represented by counsel. The Final Decree and Decree of Distribution was dated May 9, 2002. Correspondence from the Oklahoma State Department of Health that contains findings from the investigation into the decedent's death also is dated May 9, 2002. These findings support a wrongful death action against Barnsdall, and were received after the date of the Final Decree. As such, the wrongful death claim against Barnsdall constitutes property discovered after the final settlement of the estate, under

¶16 Murg, Jr., asserts his own legal rights. He is within the limited class of interested parties, and raises claims that fall within the zone of interests protected by state law. Murg, Jr.'s interest in the potential wrongful death action represents a portion of the probate estate that did not cease to exist merely because Murg, Sr., decided not to pursue a wrongful death action against Barnsdall. Indeed, Murg, Sr., cannot choose to extinguish or decline to pursue an independent claim that his son, as an heir, possesses. Thus, there is a probate estate that continues to exist, and over which Murg, Jr., appropriately was appointed Special Personal Representative.

Conflict of Interest Between Murg, Sr., and Murg, Jr.

¶17 A conflict of interest arose between Murg, Sr., and Murg, Jr., when the former, while serving in his capacity as personal representative of decedent's estate, declined to file a wrongful death action against Barnsdall. This conflict of interest is substantiated by the matter before us, in which the nursing home, Barnsdall, unilaterally attempts to challenge the appointment of Murg, Jr., to avoid the lawsuit against it, thus confirming the need for Murg, Jr.'s appointment as Special Personal Representative to pursue the estate's claim and preserve his interest therein. See, Matter of Estate of Bearden,

Duty of Personal Representative to Preserve the Estate

¶18 In interpreting the wrongful death statute that predates our current applicable statutes, we held that the proceeds of the recovery in a wrongful death action did not constitute assets of the estate. Baltimore American Ins. Co. v. Cannon,

Statutory Guidelines for Appointment of Special Administrators

¶19 The statutes concerning appointment of special administrators are found in 58 O.S.2001, §§ 211-217. Title

Barnsdall's Standing to Challenge Murg, Jr.'s Appointment

¶20 We now address Barnsdall's standing to challenge Murg, Jr.'s appointment. To have standing to contest letters of administration, a person must have an interest in the property a testator owned at his death, thereby classified as an "interested party." Mayweather v. Wallace,

¶21 Those entitled to contest a petition praying for letters of administration include those entitled to notice of hearing for the same, pursuant to

¶22 By statute, as set forth hereinabove, if one contests the petition, he may assert his own rights to the administration. However, Barnsdall has no rights to the administration, and cannot contest the petition as an interested person, under the applicable statute. Further, insofar as Sections 129 and 130 are concerned, the statutory language contained therein needs no interpretation. Murg, Jr.'s right to appointment is higher in priority to that of any person save his father, who was discharged and released, his letters testamentary set aside and cancelled by order of the probate court.

¶23 In the matter before us, Barnsdall is not a proper party to challenge Murg, Jr.'s appointment. It is not an interested party as a statutory heir of the decedent, under

Murg II (99,367)

¶24 Since we hold that Murg, Jr.'s appointment as Special Personal Representative (99,701)(Murg 1) was valid, we hold that, both individually and also as Special Personal Representative, Murg, Jr., possesses the requisite standing to pursue a wrongful death negligence claim against Barnsdall.






1 12 O.S.2001, § 1054. Action for death-Who may sue
"In all cases where the residence of the party whose death has been caused as set forth in the preceding section of this article (Title 12, § 1053) is at the time of his death in any other state or territory, or when, being a resident of this state, no personal representative is or has been appointed, the action provided in the said section may be brought by the widow, or where there is no widow, by the next of kin of such deceased."

"1. Facility neglect. Named resident died because of bedsores. Dehydrated because of bedsores. Resident died on 09/04/01."

3 58 O.S.2001, §692. Property discovered after final settlement
The final settlement of an estate, as hereinbefore provided, shall not prevent a subsequent issue of letters testamentary or of administration, or of administration with the will annexed if other property of the estate discovered, or if it become necessary or proper for any cause that letters should be again issued.

4 We defined "next of kin" in the context of the wrongful death statutes in Ouellette v. State Farm Mut. Auto. Ins. Co., 1994 OK 79, ¶ 10, 918 P.2d 1363, 1366-1367, to include, "all who would be entitled to share in the distribution of the personal property of the deceased."

5 We note that adult children of deceased nursing home residents frequently file the actions against the nursing homes. See, e.g., Sosnicki v. Chateau Living Ctr., 2005 WL 1861924 (July 21, 2005), Beverly Enterprises-Florida, Inc. v. McVey, (739 So.2d 646)(wherein decedent's son, as personal representative of the estate, filed the action against the nursing home).

6 While the Stanolind Oil case was decided under the wrongful death statute that predates our current statute, this principle and the rationale behind it remain unchanged by the language and applicability of the current wrongful death statutes. In another case, the decedent's mother could have been substituted as party plaintiff but instead chose to perfect the appointment of the administrator so that he was then qualified to act as her representative. Dierks v. Walsh, 1946 OK 8, 165 P.2d 354.

7 58 O.S. 2001, § 211 Special administrators appointed, when
"When there is delay in granting letters testamentary, or of administration, from any cause, or when such letters are granted irregularly, or no sufficient bond is filed as required, or when no application is made for such letters, or when an administrator or executor dies, or is suspended, suspended partially, or removed, the judge of the district court may appoint a special administrator to collect and take charge of the estate of the decedent, in whatever county or counties the same may be found, and to exercise such other powers as may be necessary for the preservation of the estate."

8 58 O.S.Supp.2001, § 128 Notice of hearing
"A. When a petition praying for letters of administration is filed, the judge of the court must set a day for hearing the same and cause notice thereof to be given, containing the name of the decedent, the name of the applicant for letters, and the day on which the application will be heard.
"B. If the names and addresses of all heirs of the decedent are known to the petitioner and are set out in the petition, the notice must be given, as provided in Section 34 of this title, by mailing a copy of the same to each of the heirs of the deceased with the postage thereon prepaid at least ten (10) days before the day set for the hearing.
"C. If the name or address of one or more heirs of the decedent is not known to the petitioner, notice of the hearing of the petition shall be given by mailing, as above provided, and by publishing the same one time in a legal newspaper in the county at least ten (10) days before the day set for the hearing.
"D. If the petition asks for the appointment of some person entitled under the law to appointment, and there shall accompany such petition a waiver of all persons having a prior right to appointment or if the applicant has a prior right of appointment, then no notice shall be given and the court shall proceed without delay to hear such petition."

9 58 O.S. 2001, § 129 Contest of Petition - Notice
"Any person interested may contest the petition by filing written opposition thereto, on the ground of the incompetency of the applicant, or may, at any time within thirty (30) days after an administrator has been appointed, assert his own rights to the administration and pray that letters be issued to himself. In the latter case the contestant must file his petition [asserting his own rights to the administration] in the court. The court thereof shall set a day for hearing the same and the contestant shall give written notice by mail, postage prepaid, to the known heirs and the original petitioner or administrator, if the appointment has been made, of said contest, and the time and place set for hearing the same, at least five (5) days before said hearing."

10 58 O.S.2001, 130 Hearing of the petition - Order
"On the hearing, it being first proved that notice has been given as herein required, the court must hear the allegations and proofs of the parties, and order the issuing of letters of administration to the party best entitled thereto."

11 58 O.S.2001, § 122 Persons entitled to letters of administration