Brady v. Ansehl

• Citation: 787 S.W.2d 823
• Decision Date: 27 March 1990
• Docket Number: No. 56829,56829
• Parties: Walter L. BRADY, Jr., Plaintiff-Respondent, v. Deborah M. ANSEHL, et al, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 823

787 S.W.2d 823

Walter L. BRADY, Jr., Plaintiff-Respondent, v. Deborah M. ANSEHL, et al, Defendants-Appellants.

No. 56829.

Missouri Court of Appeals,

Eastern District,

Division Two.

March 27, 1990.

Alan G. Kimbrell, St. Louis, for defendants-appellants.

James L. Sullivan, Jr., Joyce Eileen York, John L. Sullivan, St. Louis, for plaintiff-respondent.

Thomas M. Blumenthal, Andrew F. Wasserman, Clayton, for Mohawk Moving and Storage Co.

PUDLOWSKI, Presiding Judge.

This is an appeal from an order overruling appellant's motion to dismiss, granting respondent Brady's motion for summary judgment, and assessing costs against the Estate of Jeanne Brady. We affirm.

Respondent Brady is the former husband of decedent Jeanne Brady. The marriage of respondent and decedent was dissolved in the City of St. Louis on October 24, 1985. Jeanne Brady died on January 31, 1988. Appellant Deborah Ansehl was appointed the personal representative of decedent's estate on May 18, 1988, in the Probate Division of the St. Louis County Circuit Court.

On July 14, 1988, respondent Brady filed an amended petition in the St. Louis County Circuit Court alleging decedent and he, at the time of dissolution, entered into a separation and settlement agreement providing for the division of their property. He alleged according to this agreement decedent was to select thirteen items of personalty and he was to receive the rest. Decedent made her selections but refused to give respondent possession of his items. He also alleged he was to receive certain other items of personalty which were in decedent's possession but which he never received. Respondent further alleged appellant, as personal representative, had possession of these items. These were being stored at Mohawk Moving and Storage Company (Mohawk). Respondent Brady prayed the court for an order for "recovery of the possession" of said items. On August 24, 1988, in response to this petition Mohawk filed its answer with counter claim for interpleader against Brady and cross-claim for interpleader against appellant.

On September 19, 1988 appellant filed a motion to dismiss on the grounds that Brady's action was in substance a determination of title action and as such fell within the exclusive jurisdiction of the probate division. On October 11, 1988, Mohawk filed its motion to allow interpleader claiming that it was a disinterested stakeholder. On November 10, 1988, Brady then filed a petition to determine title to personalty in the probate division and a claim against the estate, both relating to the property in issue in the circuit court action. Mohawk's motion for interpleader was granted on November 15, 1988. Appellant's motion to dismiss was denied on November 16, 1988.

On December 30, 1988, appellant filed a motion to stay the circuit court proceedings or in the alternative to consolidate this action with the one pending in the probate division. This motion was denied on January 17, 1989.

Appellant then set respondent's claim and determination of title action for hearing. After hearing the evidence the probate division, on March 3, 1989, entered an order directing appellant as personal representative for the Estate of Jeanne Brady, to deliver items of personalty to Brady.

On April 19, 1989, appellant filed a motion to dismiss Brady's action in circuit court and deny Brady's motion for summary judgment on the grounds that a final order had already been entered on the issue on March 3 in the probate division and was therefore res judicata. On May 3, 1989, the St. Louis County Circuit Court heard Brady's motion for summary judgment, Mohawk's motion for attorney's fees arising from interpleader, and appellant Deborah Ansehl's motion to dismiss. The court overruled appellant's motion, granted Brady's motion for summary judgment, awarded Mohawk attorney's fees in the amount of $2,421, and assessed costs against the Estate of Jeanne Brady. The order directed appellant, as personal representative, to deliver to Brady the items listed in the order in the probate division.

Notice of this appeal was timely filed and appellant has since delivered the items pursuant to the order of the probate division.

Appellant raises four points on appeal. The first three points allege, for various reasons, the trial court lacked subject matter jurisdiction to hear and enter a summary judgment in favor of Brady. Since Brady has received the items that were the center of the dispute in the circuit court, and since subject matter jurisdiction, or lack thereof has no bearing on the disposition of appellant's fourth point, we will address that point only in this opinion.

Appellant alleges the trial court erred in entering its order allowing the action to proceed as an interpleader and thereafter awarding Mohawk attorney's fees in the amount of $2,421. She bases this alleged error upon her contention the trial court lacked subject matter jurisdiction to hear the action brought by respondent Brady. She asserts this was a determination of title action and as such fell within the exclusive jurisdiction of the probate division. Lacking the requisite jurisdiction, the trial court was powerless to enter an order granting attorney's fees to...