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Factual Background:

On June 21, 2003, Decedent died testate.  Her last will and testament provided for her estate to be split equally among her three sons: Appellant, M, and J (and his wife, D).  On August 8, 2003, D presented the will for probate and filed an affidavit for collection of small estate.  On September 29, 2003, appellant filed a petition for accounting against M, J, and D for actions taken by them in their capacity as Decedent’s durable power of attorney.  During discovery for the accounting, D discovered a bond payable to Decedent that she did not previously know about.  On March 30, 2005, D filed an application for letters testamentary, explaining that the newly discovered bond caused Decedent’s estate to exceed the limits of a small estate.  On March 31, 2005, the probate court issued letters testamentary to D.  On July 15, 2005, D and M filed claims against the estate for expenses incurred in making the accounting.  On August 18, 2005, M field a “Petition to Impose Lien” upon the estate pursuant to a provision in the durable power of attorney stating that if an accounting was required by the attorneys in fact, then reimbursement would be taken out of property under their control and from the estate.  On September 15, 2005, Appellant filed a motion to set aside the letters testamentary.

Held:

On October 18, 2005, a hearing was held on all matters.  On December 9, 2005, the probate court entered its judgment, sustaining petitions for imposition of lines in favor of M and J.  Further, the court found that the Letters Testamentary issued to D were properly issued.

Appellant filed this appeal on January 3, 2006

On Appeal: 

Dismissed because the appeal was not timely filed.

Previously, the Court of Appeals for the Southern District of Missouri held orders which were appealable pursuant to Section 472.160 were governed by Rule 81.05.  Under Rule 81.04(a), no appeal is effective unless notice of the appeal is filed no later than ten days after the judgment becomes final.  Most orders of the probate court are interlocutory and are not subject to appeal until final disposition of matters before the court.  However, if an order falls within the exceptions listed in Section 472.160.1, it is deemed final for the purposes of appeal.  Such an order is appealable upon entry.  To the extent that prior cases hold otherwise, they are overruled.

Here, the order falls within the exceptions listed in Section 472.160.1. The probate court’s judgment was final when it was entered on December 9.  Therefore, the notice of appeal filed on January 3 was untimely and the appeal was dismissed.

Concurring Opinion:

Section 472.180 requires that all appeals are taken within the time prescribed by the rules of civil procedure relating to appeals.  Rule 81.04 states that a notice of appeal must be filed not later than ten days after the judgment or order appealed from becomes final.  An interlocutory probate order which may be appealed pursuant to Section 472.160 should be appealed within ten days.  Because the appeal in this case was not filed for twenty-five days, the appeal was untimely and should be dismissed.

The Dissent would like to apply the provisions of Rule 81.05 to this case.  Applying the provisions of Rule 81.05 to an interlocutory order is unsound.  The plain language applies only to judgments.  There is a delay built into Rule 85.01 to allow for the trial court to vacate, correct or amend its judgment.  Once that time limit elapses, the trial court loses jurisdiction.  Applying Rule 85.01 to interlocutory appeals could extend the time limit for filing an appeal up to 120 days and that delay is inconsistent with the purpose of section 472.160, which is to allow for expedited appeals from certain orders.

Dissenting Opinion: 

The probate court’s order was not final, and the notice for appeal was timely filed.  The finality of an interlocutory order should be determined by also applying the provisions of Rule 81.05.