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In re Johnson

May 18, 2010

IN THE MATTER OF THE ESTATE OF: LARRY MICHAEL JOHNSON, DECEASED.
KELLIANN JOHNSON, APPELLANT (RESPONDENT),
v.
LARRY M. JOHNSON, APPELLEE (PETITIONER).



Appeal from the District Court of Uinta County The Honorable Dennis J. Sanderson, Judge.

The opinion of the court was delivered by: Voigt, Chief Justice

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

VOIGT, C.J., delivers the opinion of the Court; HILL, J., files a dissenting opinion, in which GOLDEN, J., joins.

[¶1] This is an appeal from a probate court order denying the petition of a decedent‟s wife (Wife) to revoke the appointment of the decedent‟s father (Father) as personal representative of the decedent for the filing of a wrongful death claim. Finding procedural error and an abuse of discretion in the denial of the petition, we reverse and remand for dismissal of the probate proceedings, and for such other and further proceedings that may be pursued by the parties.

ISSUES

[¶2]1. Does Wife have standing to challenge the appointment of Father as personal representative of the decedent to file a wrongful death claim?

2. Does the probate code govern appointment of a personal representative under the wrongful death act?

3. If the probate code does not govern appointment of a personal representative under the wrongful death act, what does govern such appointment?

FACTS

[¶3] Larry Johnson (the decedent) died on March 10, 2008. On September 18, 2008, Father petitioned the probate court to be appointed as the decedent‟s personal representative for the purpose of filing a wrongful death claim. The probate court granted Father‟s petition by an order entered on September 22, 2008. Wife filed a petition seeking revocation of that appointment on October 15, 2008. The probate court heard Wife‟s petition on November 25, 2008, and denied it by an order entered on January 6, 2009.

DISCUSSION

Does Wife have standing to challenge the appointment of Father as personal representative of the decedent to file a wrongful death claim?

[¶4] Father did not raise below the question of whether Wife has standing to challenge his appointment as personal representative. Standing, however, is a jurisdictional issue, and it may be raised at any time. Halliburton Energy Servs., Inc. v. Gunter, 2007 WY 151, ¶ 10, 167 P.3d 645, 649 (Wyo. 2007); Hicks v. Dowd, 2007 WY 74, ¶ 18, 157 P.3d 914, 918 (Wyo. 2007).

"Standing" is short for "standing to sue," which requires a "legally protectable and tangible interest at stake in the litigation." Olsten Staffing Servs., Inc. v. D.A. Stinger Servs., Inc., 921 P.2d 596, 599 (Wyo. 1996) (quoting Black's Law Dictionary 1405 (6th ed. 1990)). The phrase "tangible interest" has been equated with the phrase "personal stake in the outcome." Goshen Irrigation Dist. v. Wyo. State Bd. of Control, 926 P.2d 943, 947 (Wyo. 1996); State ex rel. Bayou Liquors, Inc. v. City of Casper, 906 P.2d 1046, 1048 (Wyo. 1995). The person alleging standing must show a "perceptible," rather than a "speculative" harm from the action; a remote possibility of injury is not sufficient to confer standing. Sinclair Oil Corp. v. Wyo. PSC, 2003 WY 22, ¶ 13, 63 P.3d 887, 894-95 (Wyo. 2003).

Halliburton, 2007 WY 151, ¶ 11, 167 P.3d at 649. The question of standing is a legal issue that we review de novo. Northfork Citizens for Responsible Dev. v. Park County Bd. of County Comm'rs, 2008 WY 88, ¶ 6, 189 P.3d 260, 262 (Wyo. 2008); Halliburton, 2007 WY 151, ¶ 10, 167 P.3d at 649.

[¶5] Father declares that Wife lacks standing to bring this appeal because Wife cannot prove that she will suffer any harm from Father‟s appointment as personal representative. Although we have said that "perceptible harm" is an aspect of the concept of standing, we have also used the phrases "personal stake in the outcome" and "tangible interest" in describing standing. Jolley v. State Loan & Inv. Bd., 2002 WY 7, ¶ 6, 38 P.3d 1073, 1076 (Wyo. 2002). Under those standards, we have no trouble declaring that Wife has standing to challenge Father‟s appointment. Wife is not only, herself, a potential personal representative and claimant under the wrongful death act, and in first priority as a probate administrator-a factor that will be discussed in more detail below-but she is also the mother of the decedent‟s two daughters, who also are likely claimants under the wrongful death act. Given the complexities of a wrongful death action, and given the fact-also to be discussed in more detail below-that the personal representative under the wrongful death act acts as a trustee for the claimants, Wife certainly has a tangible interest in the determination of who will act as personal representative, and she has a personal stake in the outcome of the petition contest.

Does the probate code govern appointment of a personal representative under the wrongful death act?

[¶6] It is necessary at the outset of this discussion to identify the statutes that underlie the dispute. Title 2 of the Wyoming Statutes is entitled "Wills, Decedents‟ Estates and Probate Code." Chapter 4 of Title 2, entitled "Intestate Succession," provides the procedures for the administration of the estates of those who die without providing for the distribution of their property via a will. Because those who die intestate have not "made a will," neither have they named an executor to administer their estate. Consequently, the legislature has provided a process for the appointment of the administrator of an intestate estate. As part of that process, Wyo. Stat. Ann. § 2-4-201(a) (LexisNexis 2009) sets forth the order of preference the probate court is to follow in selecting the administrator:

(a) Administration of the estate of a person dying intestate shall be granted to one (1) or more of the persons mentioned in this section. The relatives of the deceased are entitled to administer only when they are entitled to succeed to his personal estate or some portion thereof. They are entitled to administer in the following order:

(i) The surviving husband or wife, or some competent person whom he or she may request to have appointed;

(ii) The children;

(iii) The father or mother;

(iv) The brothers or sisters;

(v) Repealed by Laws 1987, ch. 129, §§ 1, 2;

(vi) The grandchildren;

(vii) The next of kin entitled to share in the ...


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