No. 87-529
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
ALBERT H. NEUMANN,
Plaintiff and Appellant,
SALLY MARLENE ROGSTAD, Personal
Representative of the Estate of
Isabel Neumann, Deceased,
Defendant and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District
In and for the County of Cascade
The Honorable John M. McCarvel, Judge presiding
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COUNSEL OF RECORD':
For Appellant:
Randy Winner; Flaherty and Winner, P.C., Great Falls, MT
For Respondent:
Joseph Marra; Marra, Wenz, Johnson and Hopkins
Great Falls, MT
Submitted on Briefs: March 24, 1988
Decided: May 6 r 1988
piled: MAY 6 - 1988
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Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Plaintiff appeals the order of the District Court of the
Eighth Judicial District, Cascade County, granting summary
judgment in favor of defendant. We affirm.
The issues before the Court are:
1. Did the District Court correctly determine that the
plaintiff failed to properly file a claim against decedent's
estate?
2. Did the District Court correctly determine that
summary judgment was proper?
3. Did the District Court err when it failed to grant
costs and attorney fees pursuant to 5 72-12-206, MCA?
Albert Neumann (Albert) and Isabel Neumann (Isabel) were
married in 1932. During the early 19401s, Albert and Isabel
began purchasing unimproved lots in and around the Great
Falls area. As the couple prospered, they also engaged in
numerous other business ventures. The titles to these busi-
ness enterprises were held both jointly and separately.
Albert and Isabel's manner of holding property changed
drastically in the mid-19601s, however. At that time, Albert
was involved in a bar brawl in which his opponent suffered a
broken arm. In an attempt to insulate himself from a pending
civil suit, Albert transferred all of his property to Isabel.
The property was not transferred back to Albert following
settlement of the case.
Although Albert and Isabel enjoyed a measure of business
success throughout their years together, the couple's attempt
at marriage was less successful. After numerous separations
and several aborted divorce proceedings, their marriage was
finally dissolved in 1973. As a result of Albert's failure
to appear at the proceeding, Isabel received the majority of
the couple's property. Isabel also excluded Albert from her
will shortly thereafter.
Unlike most couples, the divorce did not adversely
affect Isabel and Albert's relationship. If anything, the
divorce strengthened the relationship. Isabel and Albert
continued to spend a great deal of time together and engaged
in several joint business ventures. In addition, if rental
properties owned by Isabel needed maintenance, Albert provid-
ed or arranged for it, usually at little or no charge for his
labor.
Prior to her death in 1986, Isabel's illness severely
limited the extent of her activities. During this period,
Albert provided Isabel with transportation, companionship,
household services and business assistance. As a conse-
quence, Isabel is alleged to have promised Albert that she
would grant him a one-half interest in the property the
couple had previously held jointly. Isabel failed to trans-
fer the property or alter her will, however.
Albert filed a creditor's claim against Isabel's estate
on December 19, 1986. Following denial of his claim, Albert
filed suit alleging common law marriage, a claim for services
rendered in the amount of $35,200.00, constructive trust, and
an oral contract theory. Albert subsequently dropped the
common law marriage claim and instead alleged that the 1973
divorce decree was inadequate.
This appeal followed the District Court's order granting
summary judgment in favor of the defendant. Although the
District Court's order extinguished all four counts of Al-
bert's complaint, the argument presented by counsel only
addresses the propriety of the dismissal of the claim for
services rendered. We therefore limit our discussion
accordingly.
The policy underlying Montana's Uniform Probate Code
(UPC) is the fast and efficient settlement of estates.
Section 72-1-102 (2)(c), MCA. Consistent with this goal, $
72-3-803, MCA, provides that all claims against an estate
must be made within four months after the date of the first
publication of notice to creditors. The failure to make a
claim within the brief statutory period thereafter bars the
action.
The UPC is also designed to simplify the probate pro-
cess. See § 72-1-102 (2)(a), MCA. Section 72-3-804, MCA, is
a reflection of this legislative design. It provides, in
pertinent part:
Claims against a decedent's estate may be presented
as follows:
(1) The claimant shall mail to the personal repre-
sentative return receipt requested a written state-
- -of the claim indicating its basis, - -
ment - the name
and address - - claimant. - - amount claimed
of the and the
or may file a written statement of the claim, in
the form prescribed by rule, with the clerk of the
court .. .. (Emphasis added.)
In an attempt to satisfy 5 72-3-804, MCA, Albert submit-
ted a document entitled "Claim Against Estate," wherein he
listed his name, his attorney's address, and an allegation
that the estate was indebted to him in the amount of
$35,200.00 for services performed as set out in schedule "A,"
reproduced below.
The services provided for Isabel Neumann by Albert
H. Neumann, include such things as:
Washing windows; mowing lawns; planting flowers;
house cleaning; clothes washing; bathing Isabel
Neumann; buying groceries; filling Isabel's port-
able oxygen bottle; providing a vehicle and driving
Isabel to the doctor, the bank, the accountant,
and wherever she wanted to go; buying prescription
drugs; doing her Christmas shopping; taking her out
to dinner and bringing meals to her at home;
balancing her checking account for her; working
with her on joint investments; caring for her
parents' graves; advising her on personal problems;
repairing and maintaining real property for her;
constructing the buildings at 108 20th Street
South, the building in which the Nugget Bar is
located, and the metal quonset building behind the
Nugget Bar; and managing and maintaining the rental
properties for Isabel.
The defendant argued, and the District Court apparently
agreed, that Albert's claim for services failed to meet the
statutory requirements of § 72-3-804, MCA, because the claim
failed to sufficiently describe what services he allegedly
rendered and when he allegedly rendered them. We disagree.
It is not the function of this Court to insert that
which has been omitted. Section 1-2-101, MCA. By its terms,
§ 72-3-804, MCA, does not require that a claimant specify the
exact date a debt was incurred nor does the statute require
the claim be set forth in minute detail. Rather, a claimant
need only set forth the basis of a claim, the amount claimed,
and his or her name and address. While Albert's claim might
have been more specific, it still satisfied the statutory
requirements. The duty to attempt to conduct further inqui-
ry, within reasonable parameters, then passed to the personal
representative.
"The purpose to be accomplished by our statutory provi-
sions relating to presentment of claims against estates is to
bring all claims to the knowledge of the executor or adminis-
trator so that proper inquiry and investigation may be made
regarding their validity, with the view of enabling the
executor or administrator to pass intelligently upon them."
Wunderlich v. Holt (1929), 86 Mont. 260, 269, 283 P. 423,
425. Generally, the form of a claim is not determinative.
All that is required is that the estate receive reasonable
notice of the claim by the required time so that the personal
representative can determine the validity of a claim. Peter-
son v. Marston (Minn. 1985), 362 N.W.2d 309, (construing
identical statutory language); Strong Bros. Enterprises v.
Estate of Strong (Colo.App. 19831, 666 P.2d 1109 (construing
identical statutory language); Notar v. State Farm Mutual
Auto Insurance Co. (Fla.App. 1983), 438 So.2d 531. We find
Albert's claim was sufficient to provide notice of the al-
leged debt.
However, the District Court also determined that Albert
failed to provide sufficient proof in support of his claim to
raise a genuine issue of material fact. We agree.
Throughout Albert's deposition, he contended that al-
though legally divorced, he and Isabel were in actuality
husband and wife; that he failed to initiate legal proceed-
ings for property allegedly his due to his affection for
Isabel; and that "they could have taken my life and it still
would have been hers." In addition, the record is silent as
to whether he ever entered an agreement with Isabel to pro-
vide services; the date, value or hourly rate for such ser-
vices; and whether he ever billed Isabel for such services.
Albert's belated determination that he "believes" he would
charge for getting groceries and running errands is not
sufficient to raise a genuine issue of material fact.
The courts have long struggled with belated claims by
family members and others against a person whose "mouth is
stopt with dust." See Wunderlich, 86 Mont. at 271, 283 P. at
425. Generally, the law presumes that services are given and
rendered with the expectation of being paid. San Antonio v.
Spencer (1928), 82 Mont. 9, 13, 264 P. 944, 945. However,
services provided by family members or through some other
significant relationship give rise to an entirely different
presumption.
"It is certainly true that where services are
rendered by one person for another, which are
knowingly and voluntarily accepted, without more,
the law presumes that such services were given and
rendered in the expectation of being paid for and
will imply a promise to pay what they are reason-
ably worth. " [Citation omitted. ] To this rule
there is a generally acknowledged exception . . .:
"In the case of near relatives or members of the
same family, living together as one household, the
law regards personal services rendered, and board
or lodging or other necessaries and comforts fur-
nished, as gratuitous, and in the absence of an
express agreement to pay for the same or facts and
circumstances from which such an agreement can be
inferred, there can be no recovery therefor. . . ."
San Antonio, 82 Mont. at 13, 264 P. at 945.
A similar rule has been applied in a situation in which
kindness and affection motivated the rendering of services.
[Pllaintiffs indicated that they performed the
services out of kindness for an elderly neighbor.
However laudable plaintiffs' action on behalf of
decedent may have been, there was no implied con-
tract of payment since there was no understanding
between plaintiffs and decedent that plaintiffs
would receive payment as consideration for the
services they performed. In denying a plaintiff's
contract claim against an estate for services
rendered to a decedent, the California Court of
Appeals stated:
". . . If at the time the services were originally
rendered they were intended to be gratuitous or as
an accommodation, motivated by friendship, kind-
ness, or some other significant relationship exist-
ing between the parties, and were tendered without
any expectation of remuneration, they cannot after-
wards be converted into an obligation to pay their
reasonable value under the theory of an implied
contract .. ."
Ziegler v. Kramer (1977), 175 Mont. 236, 239, 573 P.2d 644,
645.
Application of the Ziegler and San Antonio rationales
clearly demonstrates the inadequacy of Albert's proof.
Although not legally married to Isabel, Albert testified that
the couple were in fact acting as husband and wife. He also
testified repeatedly that his love and affection for Isabel
had precluded an action for large sums of money rightly his.
Under such circumstances, the failure to allege an express
contract or to present a written copy of the same is fatal to
his claim. Albert's uncertain, belated and unilateral deter-
mination that he should be compensated for services rendered
to a person unable to answer is not sufficient to raise a
genuine issue of material fact.
Finally, it is alleged that the District Court erred
when it failed to grant the defendant costs and attorney fees
pursuant to 5 72-12-206, MCA. We find the issue is not
properly before us.
We note that Albert did not raise the issue of attorney
fees. In order to preserve an issue not raised by an appel-
lant, it is necessary for the personal representative as
respondent to file a notice of cross-appeal. Rule 5 (a),
M.R.App.P., provides in pertinent part:
(3) If a timely notice of appeal is filed by a
party, any other party may file a notice of appeal
within fourteen days after the date on which the
first notice of appeal was filed, or within the
time otherwise prescribed by this Rule 5(a), which-
ever period last expires.
The respondent's failure to so file is thus fatal to his
claim.
Respondent's claim is not saved by Rule 14, M.R.App.P.
Rule 14 merely provides the opportunity for a respondent to
raise an issue on appeal. It does not eliminate the proce-
dural prerequisites necessary to perfect an appeal. In a
similar situation, we have stated:
Finally, wife contends that the District Court
erred in refusing to grant attorney fees and costs.
We cannot review this issue, however, because wife
failed to file a cross-appeal.
"Although Rule 14 (M.R.App.Civ.P.) provides for
review of matters by cross-assignment of error,
this does not eliminate the necessity for
cross-appeal by a respondent who seeks review of
rulings on matters separate and distinct from those
sought to be reviewed by the appellant." Johnson
v. Tindall (1981), 195 Mont. 165, 169, 635 P.2d
266, 268.
Marriage of Johnson (1983), 205 Mont. 259, 263, 667 P.2d 438,
440.
The judgment of the District Court is affirmed.
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Justice
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Justlces